The Washington herald., 1907-12-24
Justice Harlan ON the Constitution.

We have heard so much from constitu-
tional alarmists in the past year-alarm-
lists whose forebodings and apprehensions
have been allotted far too much impor-
tance by the press-that it is refreshing
TO hear from the lips of a sound consti-
tutiOnal lawyer and clear-sighted jurist
sane and common-seuse opinion of our na-
uonal tendencies Justice John NJ Har-
Ian, in the brief address at the banquet
given in his honor by the Kentuckians of
New York, brushes away pessimistic
fears that the trend in public affairs
to-day is toward the Capitalization of
all governmental power in the nation and
the destruction of the rights of the
States as groundless. His observation is
that at no time have the people been
more determined to preserve the essential
features Of our governmental system than
they are to-day. He discerns no signs OF
a popular movement for the overthrow
Of the fundamental principles Of our writ
ten Constitution.
There are. indeed, two extreme schools
OF constitutional interpretation-one hold
ing that the Constitution should be con-
strued 10 mean what majority of the
people think it ought 20 mean, or that
Congress should exercise any power, not
expressly denied to it. if deemed for the
common welfare; and the other adhering
10 such a strict construction of the Con-
stitution as to eliminate from our juris-
prudence the well-established doctrine of
implied powers. But neither of these
theories has any standing in the deci-
sions of the Supreme Court. nor any con-
siderable following, We may add. among
public men. Justice Harlan himself plants
himself firmly on the Marshall doctrine
of Il liberal construction OF the Constitu-
ton, believing that the powers of the
government are equal 10 the objects for
which it was established. and that the
nation is armed with authority to meet
new conditions requiring governmental
action as they arise. Herein lies the path
Of safety. for an impotent government. a
nation without national powers. would
assuredly be vulnerable TO revolutionary
attack. The extension Of governmental
authority into new fields OF action is not
necessarily a usurpation OF power:
1T is true that national power, as now exerted.
early days of the republic; but that does not prove
as the pessmist would have us think. that the
government has usurped powers that do not belong
20 it end has entered the domain reseryed by and
for the States It proves only that the nation has
from time 90 time. as the public interests de
nanded, brought into active operation powers which
Congress had not previously chosen 10 exert. So
Nast has become the increase in our population and
so diversified and extended have become our busi-
ness interests that occasions must necessarily arise
for more intina,e connection between the gov
ernment Of the Union and the affairs and business
@ the. people than perhaps the fathers ever
dreamed Of Hence. modern problems. as con-
neetcd with the operations Of government, are 10
be solved IN the interest and for the benef q the
people. and the nation is to keep abreast with
advancing civilization. new fields Of legislation must
DO occupied. While new laws must always be
closely scrutinized and care taken that they are
not inconsistent with the Constitution we Must not
be so unwise or suspicious or timd as 10 reject
new law simply because il is new. or simply be-
cause II may cover areas not consciously within the
mental vision or the thoughts OF the trainers Of
the Constitution. That wonderful instrument. the
SUrUme Court has said was intended 10 be adapted
to the various crises Of human Affairs
Holding these views. Justice Harlan is
confident that we may rear on the broad
and deep foundations laid by the fathers
whatever supersructure our welfare and
greatness as a nation may require"
Broad and liberal rules of construction
viii sustain, not undermine. our dual
system, for neither the nation nor the
States Will be crippled of their powers.
And. we may say, the Constitution is
strengthened before the people by the con-
viction that it is sufficiently adapted TO
the present crisis. The value of Justice
Harlan's address lies in the comfort it
gives TO that conviction.