due process clause of the 14th Amendment, could not have been anticipated by the framers; for they never could have conceived it possible that the peoples of the States would ever consent to such limitation of their own powers and to such an extension of Federal jurisdiction as occurred when the States ratified that 14th Amendment, eighty years after the adoption of the Constitution. Furthermore, it is to be noted that there were some parts of the Constitution certain of the restrictions on the powers of Congress and of the President — which were not susceptible of enforcement by any Court, because they presented phases of government which could not, in the nature of things, become the subject of litigation between private individuals or between an individual and the Government. Thus the limitation on the right of Congress to appropriate money is not enforceable by the Court.1

Nevertheless, in spite of any specific decisions of the Court which may not have been consonant with the views of the framers, it is indubitable that, in general, it has functioned as it was intended, in 1787, that it should function. It was planned to be the power which should maintain the balance between the Nation and the States, by preventing undue. encroachment of the one upon the other. This, it was intended to do. This, it has done. It was planned to be the power which should protect the citizens against violation of their rights by either Congress or the Executive. This, it was intended to do. This, it has done.

1 See Massachusetts v. Mellon, Frothingham v. Mellon (1923), 262 U. S. 447.

CHAPTER THREE

THE BILL OF RIGHTS AND THE COURT

"Why had they established that fundamental law which the people themselves were as much bound to respect as their public functionaries - a rule of action for all, from which none could absolve themselves? It was because of the radical depravity and original sin of their nature, which called for wholesome restraints. In a lucid interval, they had wisely determined to tie up the hands, not only of their agents, but of themselves, that when the hour of passion should come, barriers might be opposed to their inconsiderate rashness. Every feature of our Government, both State and National, proved that the people were sensible of restraining as well the headlong impetuosity of the multitude as the inordinate ambition of the few. Where such restraint was not improved, there was no genuine liberty." -JOHN RANDOLPH of Virginia, in the House, Nov. 13, 1807. 10th Cong., 1st Sess.

"With what show of reason can it be contended that the Federal Government is to be the exclusive judge of the extent of its own powers? A written Constitution was resorted to in this country, as a great experiment, for the purpose of ascertaining how far the rights of a minority could be secured against the encroachments of majorities often acting under party excitement and not unfrequently under the influence of strong interests. . . . When Congress (exercising a delegated and strictly limited authority) pass beyond these limits, their Acts become null and void, and must be declared so by the Courts, in cases within their jurisdiction." -- ROBERT Y. HAYNE of South Carolina, in the Senate, Jan. 26, 1830. 21st Cong., 1st Sess.

While those who drafted the Constitution in 1787, and those who ratified it in 1788, clearly evinced their desire and intention to establish an instrument which should set definite limits of power to the Congress and the Executive, it was in 1789, when the

First Congress adopted the ten Amendments embodying the Bill of Rights, that the intention to establish the Judiciary as a curb upon usurpation of power by the other two branches of the Government became even more strikingly evident. No action ever taken by Congress was more clearly the result of a general demand for limitations on Legislative power, to be enforceable through a Judiciary. The genesis of this national Bill of Rights should be most carefully studied by the liberals and radicals in this country to-day, for they are the very persons most likely to stand in need of the protection intended to be guaranteed by this portion of the Constitution.

Radicals, especially young radicals, are a highly desirable portion of the community. It would be a stagnant world indeed if they did not comprise part of the community. The process of living and the assumption of responsibilities are likely enough to turn most men into conservatives; and it would be a deplorable and a depressing thing if young men did not start out in life more radical than their fathers. But no one should be more careful than the radical himself to make sure that proposals and panaceas, laid before him with the radical brand upon them, are, in reality, radical or progressive. For many of such proposals are, in fact, the reverse — they are reactionary and they are regarded as radical or progressive frequently because the proposer has not known enough history to realize that what he proposes has been already tried in the past, and discarded in favor of something better. Such a reactionary proposal is that which is now made to suppress the powers of the Supreme Court. It is a

reversion towards something which our ancestors fought to escape. Those who advocate this proposal should not be denounced, but they should be taught history. Their views are dangerous, only until the light is turned on. As Mr. Justice Holmes wrote a few years ago: "With effervescing opinions, as with the not yet forgotten champagnes, the quickest way to let them get flat is to let them get exposed to the air." And as the same Justice has said in a judicial opinion: "The best test of truth is the power of thought to get itself accepted in the open market.' To get a thought accepted as truth, it is necessary that the thought be supported by facts and valid reasoning. Reforms cannot prevail by falsification of history.

It is highly important for all American citizens, conservatives and radicals alike, to fix firmly in their minds the fact that the document which was framed in the Federal Convention and signed on September 17, 1787-wise, beneficial, skillful, promotive of the interest of the Union as it may have beennever was and never would have been accepted as a Constitution for these United States, by the peoples of the States; for it contained two defects and omissions, which rendered it impossible of acceptance as drafted. Those radical writers and speakers of to-day who attack the Constitution as the product solely of the professional, the wealthy, and the conservative classes, and who seek to utilize prejudices against these classes as a means of discrediting the instrument which they are alleged to have framed, make the common mistake of talking about the Constitution as if it consisted simply of the document

signed on September 17, 1787.1 It was not that document, however, which became the Constitution as finally adopted.

It is quite true, and it was quite natural, that the men who saw most clearly and felt most keenly the disastrous commercial and political conditions, existing in 1787 and due to the feeble government then prevailing, should have been those who had most at stake, the merchants, the tradesmen, the mechanics of the seaport towns, the lawyers, and the great landholders in the country - in other words, the more conservative men in the community; and hence it was quite natural that it Ishould have been those men who took the lead in seeking the adoption of a new frame of government. But the Constitution, as so drafted by their representatives, dealt chiefly with the forms and machinery of government, and with the distribution of powers between the Nation and the States, imposing limitations on the rights and powers of both, but containing few restrictions on the power of Congress with respect to individual and human rights. So framed, however, the Constitution was at once seen to be fatally defective; and other men than those who framed it took it in hand. The two most vital defects were the absence of a guaranty of reserved powers to the States, and the absence of a guaranty to the citizens of protection against the exercise of despotic power by the new Government.

1 Charles A. Beard, in his Economic Interpretation of the Constitution (1913), p. 188, said: "It was an economic document, drawn with superb skill, by men whose property interests were immediately at stake; and as such, it appealed directly and unerringly to identical interests in the country at large." This statement is not true if applied to the final Constitution containing the first ten Amendments.