New-York tribune., 1901-12-08
AN HISTORIC PHRASE.

In his dissenting opinion in the second Dooley
case Mr Chief Justice Fuller characterizes the
view Of the majority of the court in phrase
full of suggestion concerning the development
of constitutional law and the growth of ma
tional powers. He disagrees with the decision
upholding the levy of duties in Porto Rico upon
goods from the United States and ruling that
such duties not a tax on exports from a
State in the sense Of the constitutional prohlbi-
ton of export duties. The tax does come with
in the prohibition Of the constitution as he IN
terprets that instrument and he says: The
"pIain language Of the constitution should not
'be made blank paper by construction. and its
specific mandate ought to be obeyed.'
That phrase. blank paper by construction"
was introduced by jefferson in urging amend
ment of the constitution TO legalize what he
thought its violation in the purchase Of Lou
isiana. He said: The limits Of the United
States are precisely fixed by the treaty Of 1888"
and urged 1.-The constitution expressly declares
itself to be made for the United States" This
differs little from the doctrine OF those VINO
now hold that the constitution made for
States, not for distant islands, though they and
| everybody else now believe that the govern
ment can acquire territory outside the United
States as created by the constitution, some
thing which Jefferson denied in word and
affirmed for all time in act On September Z,
1903 Jefferson wrote TO Wilson Cary Nicholas
protesting that the constitution conferred no
such power as he had exercised, and saying:
.'Our peculiar security is in the possession OF
written constitution. Let US not make it
''blank paper by construction" Therefore he
called for an amendment, but added: IF, how
"ever our friends think differently, certainly
shall acQuesce with satisfaction confiding that
| 1.-THE good sense of our country will correct the
..evil Of construction when 1t shall produce Ill
| effects" They found it convenient to think
differently, and he did acquiesce He con-
| auered his scruples and never again spoke Of
the way he had made blank paper of the con-
stitution.
Half century later, when slavery found it
self threatened by the evil of construction"
the same phrase came to the front In his con-
curing opinion in the Dred Scott Mr. JUS
tice Campbell gave expression to the constitu-
tional theory of the extreme State rights
school. He found that the government of
strictly limited powers had been changed at
some time in our history into empire, and
he identified the Louisiana purchase and legis
lation as the transforming step He said: The
..wisest statesmen protested against it, and the
president doubted its policy and the power of
"the government" and then made this sarcastic
reference to Jeffersons letter:
Mr. John Quincy Adams, at later period
saws of the last act, that the President found
Congress mounted to pitch of passing these
acts without inquiring where they acquired the
authority, and he conquered his own scruples as
they had done theirs" But this court cannot
| undertake for themselves the same conquest
| They acknowledge that our peculiar security is
| in the possession of written constitution, and
| they cannot make it blank paper by construc-
| tion.
The use of the same phrase low by the Chief
Justice is significant. 1t indicates that the OBJ
/ lection TO the governments power of meeting
| its new colonial problems with a free hand is
| only the latest phase of doctrine that has
| been invoked at every stage of our history to
| block national advancement. Those who hold
| it and invoke it not to be treated with
| disrespect They are one of the two schools of
/ thought into which students of our constitl-
| ton inevitably divide. They are the resisting
| and regulating force. They are as necessary
for checking too speedy movement as is the
! brake on a railroad car. Like the brake, they
| from time to time clutch the moving wheels
| and say that the train shall not go beyond
given point but it always moves in the end
even IL slowed down. Then they accept the
situation, admit that the train is running prop
| erly far beyond the point where they thought
the track ended and the constitution was