Sacramento daily record-union., 1882-12-22
A CRITICISM oP THE Hhw CoEsrIrU.
TIoN.

TON.
In the January number of the Overland
Monthly appears paper by Mr.. Theodore
FL. Hittell, entitled Observations on the
"New Constitution" It's main purpose is
to point out the extent to which the inno-
vations engrafted Upon the organic law by
the Constitutional Convention have proved
futile, either through their inherent i'm.
practicability. or through the construction
put upon them by the Courts. The ques-
tions discussed by Mr.. Hitteil are of very
great interest, for they concern the most
important considerations to the citizens of
any community and chiefly the considera.
tion of the degree of security which the
institutions of the country afford to its
people in the prosecution of legitimate in
dustry and commerce. The new Constitu-
ton was framed at most unreasonable
time. The people were in ferment. They
had been stirred up by demagogues and
more designing men until they were
brought to the pitch of demanding de.
liberately inequitable measures against
capital. The Constitutional Convention
contained large percentage of the most
hopelessly impracticable men; men whose
intelligence was in inverse proportion to
their audacity, and for whom the most
lucid and complete demonstrations pos
sessed 10 influence. Their only idea was
to force the crude notions &C the Sand Lot
into practice through sheer weight of mum.
bers. They were incapable of perceiving
that no amount of popular sentiment can
render practicable things which are op-
posed to natural law. They thought that
water could be made to run up hill by
constitutional provision, in short.
The result was that they produced an
unexampled piece of crudity and folly, and
that now, after four years experience, the
utter failure Of every one of their PROPOSE.
tions has become recognized and accepted
fact. The new Constitution decreed
double taxation. 1t undertook to make
money lenders pay the tax on mortgages.
1t sought to prevent the natural operation
of commercial laws. 1t aimed at deliber.
ate inequality of taxation. 1t sought in
many ways to turn the current of human
life and energy, and to force it into new
and abnormal channels. At first there can
be no doubt that capital apprehended much
mischief from this instrument. But it
soon became apparent that the menacing
provisions which to the uniintisted ap-
peared so formidable, did not really
amount to anything, inssmuch as it was
impossible to find any Court which would
interpret them in accordance with the in.
tention of their authors. The law, reach
ing back far beyond the crude notions of
these sciolists, could not be got to recog-
MIA deliberate purpose of injustice and
inequality. 1t construed ambiguous pro-
visions so as to harmonic them with
established principles of right and justice,
and it calmly put aside the passion and
prejudice which breathed through them.
OF course one result OF this was that, as Mr..
Hittell observes, "there is very wide
difference between the Constitution as it
twas intended by its trainers, and the
Constitution as it is practically admins.
"tered." The Constitution as it was
meant to be has actually passed from sight,
and we are living under series of inter
pretations which save us from the in.
tended i'll effects of it by throwing us back
upon something like first principles.
Perhaps this is the best there was in the
situation, but it is certainly none the less
an unsatisfactory state of affairs, and all
that can be said for it is that it is decidedly
preferable TO the only alternative. namely,
the strict construction of the new Consti-
tuition. But it is a very unfortunate con-
dition of things, in which The good sense
and conservatism of the Courts is the only
refuge from species of injustice which, if
fully applied, would by this time have
fairly destroyed the prosperity and ruined
the prospects of the State. And even now
there are provisions in the Constitution,
such as that in relation to street improve
ments, the only possible remedy for the
folly of which lies in their repeal. II was
terrible botch-work. OF that very few
persons whose opinion is CT the least value
now entertain any doubt. The mists of
passion under which it was at first &C.
cepted have cleared away, and everybody
can realize that instead of being better
Constitution than the one il gupplanted, it
is very much worse one. It 10 also evi.
dent that it will have to undergo radical
amendment, end that its most distinctive
features, which are its endesvors to confis.
cate private property under the disguise OF
taxation, will have to be Topped away. For
OF course it will not be possible for the
State to continue depending upon judicial
interpretations for protection from the evil
consequences of the organic law. So far
the Courts have come gallantly to the res.
cue, but it is now necessary that the Con.
stitution should be made to conform to the
rational principles which it ought to be
based upon, and the sooner this importan,
work is begun the better it will be.
| . >----------