authority, which, according to this doctrine, is unlimited except in the face of explicit prohibitions. Many students of constitutional theory have heretofore believed that the validity of treaties, like the validity of acts of Congress, depended on their conformity to the Constitution. But even this appears doubtful under the construction now announced by the court. For it said: "Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way." This evidently means that the way to ascertain the validity of an Act of Congress is to inquire whether the Constitution has expressly or impliedly authorized it, but the way to ascertain the validity of a treaty is to inquire whether there is anything in the Constitution to forbid it. Indeed, in the case before it, the court expressly said: "The question is whether the United States is forbidden to act." And as to this: "The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what that amendment has reserved."

This last sentence may well arrest the attention of the thoughtful citizen. For it certainly appears to mean that

the powers so jealously reserved to the several states or to their people by the Tenth Amendment may be abridged, atrophied, or even totally destroyed, not by their voluntary surrender through the process of constitutional amendment, but by a judicial determination of "what this country has become" or may in the future become. It is no unfamiliar doctrine that changed conditions may afford opportunity for new and extended applications of the powers specifically granted to the general government, but that the historical and material development of the country can bestow new powers, or transfer powers from the competence of the states to the jurisdiction of the Union, is a principle not hitherto announced in constitutional jurisprudence.

The very disquieting effect of this decision does not lie at all in its application to the specific case of the migratory birds, but in the far-reaching and utterly incalculable effects of those inferences which must naturally and logically be drawn from its general terms. For if the determination that a treaty is valid precludes any inquiry into the validity of an act passed in execution of it, and if the treaty-making power is unlimited save by some "invisible radiation" from the Tenth Amendment, and even that is counteracted by a consideration of "what this country has become," who will be bold enough to set limits to the changes in our statutory law, in the distribution of the police power, in the relations between the states and the Union, yes, even in the very structure of our government, which may be effected by means of conventions with foreign powers? The

learned counsel for the State of Missouri in the case under consideration stated the matter thus in his petition for a rehearing: "If this opinion as it stands becomes final, it necessarily means that, if this court should conclude that our experience and 'what this country has become' renders it advisable and to the best interests of Great Britain and the United States that there should be a uniform law concerning marriage and divorce, or negotiable instruments, or that real and personal property should descend under the law of primogeniture, or that there should be certain intellectual and property qualifications of those who are permitted to vote, or that wheat or corn or other products of the farm should be eaten only at specified times, then a treaty made by the treaty-making powers of the United States and Great Britain providing for all or any of these things, followed by a law of Congress in aid thereof, would be perfectly valid and binding, because the federal government alone has power to make treaties, and because the federal government is not expressly forbidden by the Constitution to act upon these particular subjects."

There are other reasons for hoping that the doctrines either announced or sanctioned by this decision may not, in the future, be carried out to their logical conclusions, lest it be found that a radical change in our system of government has been effected. It is a matter of common knowledge that the framers of the Constitution, while they intended to create "a national government," had no idea whatever of endowing it with the limitless authority of

such a government as that, for instance, of Great Britain. On the contrary, it was their fixed purpose and understanding that the peculiar form of federal government brought into being by the Constitution should be strictly limited in its functions, and that it should possess no powers save those explicitly granted to it, or necessary to the execution of the granted powers, or thereafter conceded by constitutional amendment. Yet the Supreme Court, in this case, in regard to an act of Congress following a treaty, says that "the question is whether the United States is forbidden to act." It declares: "It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with, but that a treaty followed by such an act could." It rejects any rule of construction which might result in denying the existence of "a power which must belong to and somewhere reside in every civilized government." support to the theory that legislative powers may be assumed to be vested in the national government "in cases where the states individually are incompetent to act."

And it gives strong

It is very difficult indeed to reconcile these statements with the previous opinions of the same court. As late as 1907, the great case of Kansas vs. Colorado was before the court. In that case, counsel for the government relied upon what he called "the doctrine of sovereign and inherent power." His argument was that all legislative power must be vested either in the state governments or in the national government; but no legislative powers belong

to a state government other than those which affect solely the internal affairs of that state; and consequently all powers which are national in their scope must be found vested in the Congress of the United States. But this contenBut this contention was emphatically rejected by the court. Speaking through Mr. Justice Brewer, it said: "The proposition that there are legislative powers affecting the nation as a whole, which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the amendments, for otherwise there would be an instrument granting certain specibe an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the body of the Constitution is made absolutely certain by the Tenth Amendment. This amend

ment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the national government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if, in the future, further powers seemed necessary, they should be granted by the people in the manner they had provided for amending that act."

It does not transcend the bounds of proper respect for the Supreme Court to ask-with pure purpose and grave earnestness-what circumstances have

wrought this great change in its views. within the brief space of thirteen years? And which viewpoint conduces best to a feeling of security on the part of our citizens and of confidence in the unchanging permanence of our form of government? And must we now admit that the authority of Congress is no longer limited by the specific grants of jurisdiction to it, but has been extended to the width of the practically unbounded treaty-making power?

But to appreciate fully the startling character of the opinion pronounced in the case under consideration it is necessary to add that, in it, the court has announced a rule-a primary and fundamental rule for the construction of the Constitution, which is entirely at variance with all its previous decisions. It was said: "When we are dealing with words that also are a constituent act, like the Constitution of the United

States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago."

Contrast with this the language pronounced in 1905 by the same court upon the same subject: "The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now.

This new constitution, which was formally adopted by a constituent assembly in February, 1920, and went into operation on the 5th of March following, has been acclaimed as "a new landmark in the history of free government" and as "the most modern and complete instrument of democratic selfgovernment." In its most important features, it follows rather closely the model of the constitution of France, although it draws from the United States a very noteworthy provision for insuring the stability of constitutional government by extending the judicial power to the determination of the validity of laws alleged to contravene the constitution. This function, however, is confided to a special "Constitutional Court" of seven members, of whom two are designated by each of the two highest courts of the country and the other three by the President of the Republic. The preamble, also, has a very familiar sound. It declares that the constitution is adopted "in order to form a more perfect union of the nation, establish justice and order in the Republic, insure tranquil development of the Czechoslovak homeland, promote the general welfare of all the citizens of this state, and secure the blessings of liberty to future generations."

It is said that there was a strong sentiment in the constituent assembly in favor of a legislative body of only one chamber. But the predominant opinion supported the bicameral system, and accordingly the National Assembly consists of a Senate and a Chamber of

overcome

Deputies. But the former has not much more real power than the British House of Lords, since its dissent from a measure passed by the Deputies can be overcome by a majority vote of the entire membership of the lower house, and a bill originating in the Senate and passed there can be rejected by a similar vote in the Chamber of Deputies. In the exceptional case, however, where the Senate rejects a House bill by a vote of three-fourths of its entire membership, it requires a majority of threefifths of the entire membership of the Chamber of Deputies to the objection of the Senate and enact the measure into law. There are 300 deputies and 150 senators, all elected by the vote of the qualified citizens (including women as well as men) and according to the principle of proportionate representation. But whereas all citizens 21 years of age may vote for deputies, they must have reached the age of 26 to share in the election of senators. All citizens, without distinction of sex, who are 30 years of age and not otherwise disqualified, are eligible to be elected to the Chamber of Deputies, but to be senators they must be at least 45 years old. Senators are chosen for a term of eight years, but deputies apparently for an indefinite term, subject to new elections upon a dissolution of the Assembly. The legislative powers of the Assembly are general and unlimited except by the specific provisions of the constitution. But there are two subjects which require the affirmative vote of three-fifths of