tion." 19 Again in Re Debs the court say: "Constitutional provisions do not change, but their operation extends to new matters as the modes of life and habits of the people vary with each succeeding generation. The law of the common carrier is the same to-day as when transportation by land was by coach and wagon and on water by canal-boat and sailing vessel, yet in its actual operation it touches and regulates transportation by modes then unknown. Just so is it with the grant to the National Government of power over interstate commerce. The Constitution has not changed. The power is the same. But it operates to-day upon modes of interstate commerce then unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the future may develop.'

" 20

A doctrine of construction radically different from that which has just been stated, and which has never been accepted by the Supreme Court, is that which has been ascribed to James Wilson of Pennsylvania, and in recent years urged by President Roosevelt.

This doctrine is, that when a subject has been neither expressly excluded from the regulating power of the Federal Government, nor expressly placed within the exclusive control of the States, it may be regulated by Congress if it be, or become, a matter the regulation of which is of general importance to the whole nation, and at the same time a matter over which the States are, in practical fact, unable to exercise the necessary controlling power. According, then, to this doctrine, the Ninth and Tenth Amendments which declare that: "The enumeration in the Constitution of certain rights shall not be construed

19 4 Wh. 518; 4 L. ed. 629.

20 158 U. S. 564; 15 Sup. Ct. Rep. 900; 39 L. ed. 1092. See also South Carolina v. U. S., 199 U. S. 437; 26 Sup. Ct. Rep. 110; 50 L. ed. 261.

to deny or disparage others retained by the people," and that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," are not to be interpreted as reserving to the States, or to the people, those powers which, though not granted to the Federal Government, are, in fact, such as are of Federal importance and which the States are unable effectively to exercise.

The foregoing doctrine is one quite different from the established doctrine of implied powers as developed by Marshall, a doctrine which will be discussed in the next chapter. That doctrine, as it will be seen, holds that from an expressly given Federal power there may be implied those powers which are necessary and proper for effectively exercising it. The doctrine thus does not justify, under any circumstances, the assumption of a new power by the Federal Government. The WilsonRoosevelt doctrine, on the other hand, asserts that a given subject not originally within the sphere of Federal control, may, by mere change of circumstances, be brought within the Federal field. Thus, to illustrate concretely, it might be argued according to the doctrine of implied powers that as implied in authority expressly granted to Congress to regulate foreign and interstate commerce Congress might compel all corporations or individuals, manufacturing commodities for foreign or interstate commerce, to obtain a Federal license, such a license to be granted upon such terms as Congress might see fit to dictate. According to the Wilson-Roosevelt doctrine, however, it could be argued that the control of manufacturing is not expressly denied the Federal Government nor expressly placed within the exclusive control of the States, and that, under existing industrial conditions it being of Federal importance that these manufacturing concerns,

or certain of them, should be regulated, and the States being incompetent to furnish the necessary regulation, therefore, the Federal Government has the power.

Here, it will be seen, there is no resort to the commerce clause, or to any other express grant of power. The doctrine is thus one which, in the absence of express prohibition in the Constitution, will support the assumption by the Federal Government of any power whatsoever if there be fair ground for holding that regulation is needed and that the States are not able to furnish it.

In the very recent case of Kansas v. Colorado, decided May 13, 1907, substantially this doctrine was urged upon but repudiated by the court.21

Stare decisis

There have not been many cases in which the Supreme Court has explicitly and avowedly overruled its prior decisions, but there have been frequent instances in which the doctrines declared in prior cases have been in part evaded or modified without explicit repudiation.

In Washington University v. Rouse, Justice Miller said: "With as full respect for the authority of former decisions, as belongs, from teaching and habit, to judges trained in the common-law system of jurisprudence, we think there may be questions touching the powers of legislative bodies which can never be closed by the decisions of a court." 22

There are indeed good reasons why the doctrine of stare decisis should not be so rigidly applied to constitutional as to other cases. In cases of purely private import, the chief desideratum is that the law remain certain, and, therefore, where a rule has been judicially declared and private rights created thereunder, the courts 21 206 U. S. 46; 27 Sup. Ct. Rep. 655; 51 L. ed. 956.

will not, except in the clearest cases of error, depart from the doctrine of stare decisis. When, however, public interests are involved, and especially where the question is one of constitutional construction, the matter is otherwise. An error in the construction of a statute may easily be corrected by a legislative act, but a Constitution, and particularly the Federal Constitution, may be changed only with great difficulty. Hence an error in its interpretation may for all practical purposes be corrected only by the court's repudiating or modifying its former decision.

CHAPTER IV

THE DIVISION OF POWERS BETWEEN THE UNITED STATES AND ITS MEMBER STATES

Federal powers

The United States Constitution serves a double purpose. It operates as an instrument to delimit the several spheres of Federal and State authority, and to provide for the organization of the Federal Government. In this chapter we shall be concerned with only the first of these two subjects. That vexed question as to the original purpose of the Constitution,-whether intended to serve as an agreement between sovereign compacting States, or as the fundamental instrument of government of a single sovereign people-it is fortunately no longer necessary to discuss. For the purpose of a treatise on the constitutional law of the United States as it exists to-day it is sufficient to describe the Constitution as a legal instrument distributing governmental powers between the Federal and State governments according to the general principle that the powers granted the Federal Government are specified, expressly or by implication, and that the remainder of the possible governmental powers "not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people." 1

It will have been noticed that in speaking of the powers

1 Tenth Amendment. As will presently appear the grant of certain powers to the Federal Government does not, until they are actually exercised, prevent their exercise by the States.