Under the influence of this static conception of society the political philosophers and lawgivers of the end of the eighteenth century had accepted as a fundamental and everlasting political theory the idea that the state was based upon a compact entered into between governors and governed. The governed-i. e., the mass of mankind-were considered to have reserved at the time of making this compact, certain rights which were often spoken of as natural rights and of which they might not be deprived. This doctrine of natural rights had for its corollary the recognition of a wide sphere of individual liberty which should be unregulated by government action. This corollary ultimately came to be known as the principle of laissez faire.

It was in these conditions and under the influence of these ideas that the constitution of the United States was adopted. This instrument was framed for communities geographically isolated, socially diverse, living a most simple life and in a comparatively low stage of economical development. It was intended to realize through actual application the idea of a social compact, the theory of natural rights and the laissez-faire policy. It was based finally upon the fundamental proposition that man could by searching find out and apply absolute and eternal political truth.

The geographical isolation and social diversity of the states led to the laying of great emphasis in the constitution of the United States upon the necessity of preserving for all time the same degree of state sovereignty and independence as was recognized to exist in the latter part of the eighteenth century. Each state was secured beyond the possibility of change equal representation in the Senate while its consent was made necessary to its division or its union with other states. No serious attempt was made to secure uniformity of law, and subject to the necessity of maintaining a republican form of government, each state was left to arrange its internal organization as it saw fit. Indeed, important matters affecting all the states were left to the determination of each state, such as suffrage and the method of choosing presidential electors.

The social-compact, natural-rights and laissez-faire theories found their expression in the enumeration of governmental

powers, the reservation to the people of all powers not granted to the government, certain express denials of powers of government action and the formulation of a series of individual rights which the government was not permitted to infringe.

Finally, the confidence of the fathers in the existence of ✓ eternal political verities and the possibility that fallible humanity might ascertain and formulate them is seen in the difficulty if not impossibility of amending the constitution which resulted from the processes of amendment provided. For as Dicey says: The sovereign of the United States has been roused to serious action but once during the course of ninety years. It needed the thunder of the civil war to break his repose and it may be doubted whether anything short of impending revolution will ever again rouse him into activity.

If we compare with the conditions which existed at the time the constitution was adopted those in which we are now living, what a contrast at once presents itself! The industrial revolution by which the last century and a half of Western European development has been characterized has changed the face of most civilized countries. Power machinery with its attendant factory system has so modified productive processes that in almost all highly developed countries classes of industrial workers have arisen which in numbers and in minute differentiation of occupation surpass anything the world's history has hitherto exhibited. Improved methods of transportation have so facilitated intercourse and so enlarged the sphere of man's activity that what were once regarded as insurmountable obstacles to communication are no longer so considered, and what once seemed to be natural political boundaries have lost their significance.

In other words, classes have developed whose relations cannot be defined in accordance with the rubrics of a once almost universally accepted legal lore and centralization is necessary if the political system is to be in accord with recognized economic facts. Just as once the privilege of the baron fell before the rights of the merchant, and local law gave way to national law, so at the present time the rights of labor are being em

phasized at the expense of the employer and a political organization based on more or less local isolation is being forced to succumb to the needs of an economic system founded upon more general intercommunication.

This development has not failed to exercise an effect on the United States. The improvement in the means of transportation has, for example, been most marked on this side of the water. The digging of waterways, the building of railways, and the spread of the telegraph and telephone have caused the geographical isolation of the once separated states to disappear. The development of American industry and commerce, notwithstanding the acquisition of the fertile fields of the West and the attendant agricultural development, has caused the former overwhelmingly predominant rural character of the population to disappear. The gradual spread of the English language has brought about an almost complete unity of speech while the greatly diminished influence of religious differences taken together with the complete separation of church and state has prevented the centrifugal force of creeds from making itself felt.

Finally it is to be noticed that the intellectual attitude of what are usually considered the more intelligent classes is quite different from that which was noticeable in the latter part of the eighteenth century. The formulation of the evolutionary theory of development in the world of science has not failed to have its influence on political thought. Students of politics are coming more and more to the conviction that a static society is impossible and that absolute political theories are incapable of application in the changing conditions which have become so noticeable since scientific methods have been applied to the conduct of life. More and more political thinkers and social students are recognizing that a policy of intelligent opportunism is the policy most likely to be followed by desirable results and that adherence to general theories which are to be applied at all times and under all conditions is productive of harm rather than good.

This common attitude of skepticism with regard to the desirability of attempting to postulate fundamental political prin

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ciples of universal application has naturally caused questions to be raised as to the applicability under present conditions of the two great theories so commonly accepted at the end of the eighteenth century, viz., the theories of the social compact and of natural rights. Furthermore, the discovery that through the application of scientific methods man has a much greater influence over his environment than was formerly regarded as possible has opened the way to so many apparently effective methods of governmental regulation that a serious blow has been dealt to the laissez-faire theory.

The question which has been chosen for discussion this morning is: Can a practically unamendable constitution, adopted in the conditions and under the influences of the political thought prevailing at the end of the eighteenth century, be adapted by judicial interpretation to the needs and thought of the twentieth century without causing us to lose the advantages which are commonly regarded as attached to a written constitution? Before the attempt is made to answer this question attention must be called to two things.

In the first place, it is now an accepted doctrine of American constitutional law that it is both the right and the duty of the courts to declare in cases which come before them in the ordinary exercise of their jurisdiction that any act of the legislature is unconstitutional which clearly violates a provision of the constitution. It would be unprofitable for us to enter upon the discussion of the question which has recently been made the subject of considerable debate, whether the courts in exercising this power have been guilty or not of usurpation. However this may be, it is difficult to imagine that the federal courts at this day will relinquish the exercise of a power whose existence has been recognized so long, except as the result of some sort of personal pressure brought to bear upon the judges which will diminish greatly the independence they now enjoy. It is commonly believed that the judges of the United States courts may constitutionally be removed only through the process of impeachment, which as provided for in the constitution is not a method of removal adapted for use in influencing judicial decisions on constitutional questions. The constitution, however,

has no word to say as to the impeachment of judges as judges. It is only as civil officers of the United States that they have been made subject to this process of removal from office. The constitution does, however, contain a specific and express provision with regard to the tenure of judges. It says that they shall hold their office during good behavior. It does not define good behavior nor does it provide a method, outside of the method of impeachment applicable to all civil officers, for determining when a judge is guilty of misbehavior. It has been claimed more than once in Congress that it is within the power of the legislative authority of the United States by law to define what is misbehavior and to provide a method by which misbehavior may be ascertained which is less cumbersome than the present method of impeachment. Until such action is taken, it is naturally impossible to say what would be the decision of the Supreme Court as to its propriety. If, however, such action were regarded as constitutional it would be possible for Congress through the exercise of a power of removal similar to that now possessed by the legislature of Massachusetts over the judges of that state to bring a pressure to bear upon the judges of the federal courts which would have an important influence on the judicial interpretation of the constitution.

In the second place, it is to be noted that the doctrines of the social compact and of natural rights while regarded as truths were not actually made a part of our constitutional law except in so far as specific rights conceived of as natural rights were incorporated into the constitution and were thus accorded judicial protection. At the same time the tendency of our courts has been to read into such general provisions as that preventing the government from depriving a person of life, liberty, or property without due process of law, quite a number of natural-rights ideas, and to endeavor, in their efforts to deny the right of the government to exercise particular powers, to obtain aid and comfort from the theory of laissez faire. A good example of such action is to be found in an opinion of the supreme court of Missouri which said in declaring unconstitutional a law levying a progressive inheritance tax to provide scholarships for indigent students at the state university: