The Washington herald. [volume] (Washington, D.C.) 1906-1939, 1907-02-24
Subject Discussed at Length
by Washington Lawyer.
PROPOSED REMEDY DISPUTED
Men, II Is Claimed, DO
Not Approve Suggestion Of Federal
Vntcrference Where Common
,yenItils Fail or Neglect 40 Provide
sufficient Remedy In Controversy.

the Federal assumption or exclusive TeSu- 1
lation of many matters which. under the /
plain language and meaning Of the Con
stitution. remain wholly under State con- |
troll. such as insurance, marriage and /
divorce. child labor. and many more Of |
those problems which. under our rapidly |
advancing and complex civilization, press
for solution with increasing need. 1t is |
said. In effect, tina, where the States fail
or neglect TO provide sufficient remedy /
the national COVE nment should step in |
and supply the assumed omission by gen |
eral enactment.
Discussing this subject, a lawyer emf |
nent in his profession contributes the fol- |
lowing to The Washington Herald:
Thoughtful men everywhere dissent |
from the remedy proposed. Certainly the |
Constitution. as framed and as eontinu-
ously expounded by the Federal judiciary. !
has yielded fun recognition TO those ex-
press powers and duties which the funda- |
mental law has vested in the national
government. and has in generous measure
declared that governments lawful right
TO exercise all implied powers necessary
TO carry all the express powers so given
into fullest effect On that question dis
cussion is needless; the expounders OF the
Constitution. from Chief Justice Marshall
down through all succeeding years. have
supplied such fun and authoritative expo
sition.
The argument which supports the
remedy now proposed, and which has been
launched for discussion by its advocates.
loses sight Of the primary fact that the
existence of all national government and
fits continued exercise Of any power there
under rests upon the almost automatic
operation of constitutional provisions.
ThereundeT our Chief Executive IS elected
by the votes Of an electoral college, whose
numbers exactly correspond 70 each States
representation In the National Legislature.
A majority Of the States may thus elect
"a President whose popular vote may have
been less Ia fact than some other can
didate The States enjoy equal repre-
seGtation in the Senate regardless of va
rance in the important clements OF p0pu-
lati0n, wealth, OF area. the Federal judi
ciary exercises "a very large and important
part Of its jurisdiction ln civil causes,
based solely upon the divergent State citi-
zenship OF the parties plaintiff and de-
PENDANT In short it may bc correctly
feet the oft-repeated assertion that the
national government IS one OF delegated
powers has every day demonstration.
The people at large IN all local concerns
affecting social status, property rights,
ana criminal procedure and punishment
live, move, and have their being with
out touching the operation or national
administration, or government. except as
they receive and send their malta func-
ton controlled 10y the national govern
mcut solely as one of the express powers
delegated by the fundamental law
Admitting the fun force Of the arEu-
ment that an intense Iatter-day civiliza-
ton requires closer administration, broad
or control, ana perhaps increasing lmie
tation upon personal right. IL is not per
ceived how that can be exercised by Fed
eraI legislation, save by express Tepudia-
ton OF the charter powers under which
the national government exercises any
power or any control. The departure pro-
posed would in sweeping effect assume
the passing into The national government
of the rights expressly reserved TO the
States or the people in the compact with
the national government.
But the difficulty is by no means in
surmountable. The check and counter
balance between national and State con-
troll can be wisely and lawfully met n
a strong sane and feasible way. Exact
uniformity Of statute law In every State
may, of course, be impossible because
social conditions environment. habits Of
life, and many other considerations viii
ard should prevent that deadly unifor-
nifty in all details which a wise Provi-
denCe has not bestowed upon al man
are or ought TO have equal application
within all it's borders. Indeed il has been
wisely said that the ideal State is one
wherein ideals are set and fostered as
examples 20 all its citizens, and not where
the thunders of statute law are con
stantly added to the moral dcCalogue upon
the mistaken notion that the tables of
stone delivered to Moses can be improved
upon always by new and modern phras-
ing
But we are one people, and most OF us
are honest well-ntentiOned, charitable.
and law-abiding. Whenever then wide
spread evils of a social order affliCt the
community speaking In a national sensel,
or there is a matter of seeming vital inn
portance I'm which uniformity Of remedy
is desirable, there would be no wrench
upon national or State authority. if pur-
suant 70 enactment Of Congress the Presi-
dent should be directed to invite the State
governments into friendly convention. The
/ representation therein from each State
could be appoTuoned upon the basis of
representation In the Senate or in the
electoral college Legislation could be
| formulated therein and recommended by
the majority OF the States Cvoting as
States) for uniform adoption. The people
of the various States. speaking through
their legislatures could approve, modify.
or reject. In this simple way the rights
of national and State government could
be well recognized and sustained without
/ friction OF Jar The example of the ma
tionaI government would be a powerful
factor, but there would be left TO each
State tand this is the crux OF the whole
argument the fun opportunity TO regulate
within its borders those affairs OF local
| concern which undenably fall within its
reserved powers Certainly this sugges-
ton has far more merit than the argu-
ment that the Federal government may
seize upon the reserved powers of the
state because unused or nefficienuy eX-
ercsed and ousting the State therefrom.
assume She exercise Of the very powers
not granted but expressly withheld from
the Federal government in the national
compact made and existing between al
The States.
'The action of Pennsylvania in thus
inviting her sister States into conference
| for the adoption of uniform law in all
the States regulating the vital matter Of
marriage and divorce; the ready response
/ of many of the States thereto. and the
/ formulation and recent submission OF
| legislation proposed By that Congress to