The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-10-02

mic, the majority of our So-called con-
stltutlonai cases really turn not upon
the Interpretation of the instrument it
seH, Out upon the construction, the
right apprehension of the living condi-
lions 10 which it is to be applied. The
constitution is now and must remain
| what it always has been: but it can
only pc interpreted as the interests of
the whole people demand, if interpre-
tea as living organism, designed to
meet the conditions of life and not of
, death; in other words if interpreted as
Marsnail interpreted it, as Wilson de-
ciared 1t should be interpreted. The
Marshall theory. the theory of life and
not or death, allows to the nation, that
is 70 the people as whole, when once
1t hnds subject within the national
cognlzance, the widest and freest choice
| sustalns every exercise of national
power which has any reasonable rela-
ton to national objects. The negation
OF TINS theory means, for instance,
that the nation-that we, the 80 mil
lions of people, of this country-will be
leTt helpless to control the huge cor
porat1ons which now domineer in our
industrial life, and that they will haVf
the authority of the courts to work
their desires unchecked: and such
decision would in the end be as disas-
trous for them as for us. If the theory
OF the Marshall school prevails, then an
immense field Of national power, now
unused, will be developed, which will
be adequate for dealing with many, If
| not all, of the economic problems which
vex us; and we Shall be saved from the
om1nous threat of a constant Oscilla-
tion between economic tyranny and
economic chaos. Our industrial, and
therefore our social, future as ma
| ton depends upon settling Alright this
| urgent question.
Constitution the Same.
The constitution is unchanged and I'M
changeable save by amendment in due
haN fn xIhi G
to be applied have undergone a change
which is almost transformation, with
| the result that many subjects formerly
under the control of the states have
come under the control of the nation.
As one of the justices of the supreme
| court has recently said: THE growth of
national powers, under our constitution,
which marks merely the great outlines
and designates only the great objects
of national concern, is to be compared
to the growth of a country not by the
geographical enlargement of its bound
aries, but by the increase of its pOpu-
lation.' hundred years ago there was,
except the commerce which crawled
along our seacoast or up and down our
interior waterways, practically no in
terstate commerce.. Now, by the rail-
road, the mails the telegraph, and the
telephone an immense part Of our COM
merce is interstate. By the transfor-
nation it has escaped from the power
of the state and come under the power
of the nation. Therefore there has been
a great practical change in the exercise
of the national power, under the acts
of congress, over interstate commerce;
while on the other hand there has been
no noticeable change in the exercise of
the national power Ito regulate COM
merce with foreign nations and with the
Indian tribes" The change as regards
interstate commerce has been, not in
the constitution, but in the business of
the people to which it is to be applied.
Our economic and social future depends
in a very large part upon how the in
terstate commerce power of the nation
is interpreted. t5fs .1-fat
1 believe that the nation has the
whole governmental power over inter-
state commerce and the widest discre-
ton in dealing with that subject: of
course under the express limits pre-
scribed in the constitution for the ex-
ercise of all powers, such for instance
as the condition that due process of
law shall not be denied. The nation
trastate commerce., even where it is
conducted by the same agencies which
conduct Interstate commerce. The
courts must determine what is national
and what is statecommerce. The same
reasoning which sustained the power of
congress to incorporate the United
States bank tends to sustain the power
to incorporate an interstate railroad, or
any other corporation conducting an in
terstate business.
There Are Difficulties.
There are difficulties arising from our
dual form of government. If they
prove to be insuperable resort must be
had to the power of amendment. Let
else of all the powers of the national
government which in the Marshall
spirit of broad Interpretation can be
found in the constitution as it is. They
are of vast extent The chief economic
question of the day in this country is
to provide a sovereign for the great
corporations engaged in interstate
business; that is, for the railroads and
the interstate industrial corporations.
At the moment our prime concern IS
with the railroads. When railroads
were first built they were purely local
in character. Their boundaries were
not coextensive even with the boun>
diaries of one state They usually COW
cred but two or three counties. All
this has now changed. At present five
great systems embody nearly four
fifths of the total milage of the coun-
try. All the most important railroads
are no longer state roads, but fnstru-
ments of interstate commerce. Prob
ably 85 per cent of their business Is
Interstate business. 1t is the nation
alone which can with wisdom, justice,
and effectiveness exercise over these
interstate railroads the thorough and
complete supervision which should be
exercised. One of the chief, and prob
ably the chief, of the domestic causes
for the adoption of the constitution was
the need TO CONFER upon the udllOh
exclusive control over interstate COM
merce. But this grant of power is
worthless unless it is held to confer
thoroughgoing and complete control
over practically the sole instrumental
tiles Of Interstate commerce-the inter-
state railroads. The railroads them
selves have been exceedingly short
sighted in the rancorous pltterness
resumption by the nation of this long