Paternalism, whether state or federal, as the derivation of the term implies, is an assumption by the government of a quasi-fatherly relation to the citizen and his family, involving excessive governmental regulation of the private affairs and business methods and interests of the people, upon the theory that the people are incapable of managing their own affairs, and is pernicious in its tendencies. In a word, it minimizes the citizen and maximizes the government. Our federal and state governments are founded upon a principle wholly antagonistic to such a doctrine. Our fathers believed the people of these free and independent states were capable of self-government; a system in which the people are the sovereigns and the government their creature to carry out their commands. Such a government is founded on the willingness and right of the people to take care of their own affairs and an indisposition to look to the government for everything. The citizen is the unit. It is his province to support the government and not the government's to support him. Under self-government we have advanced in all the elements of a great people more rapidly than any nation that has ever existed upon the earth, and there is greater need now than ever before in our history of adhering to it. Paternalism is a plant which should receive no nourishment upon the soil of Missouri.

In a way, therefore, it may be said that the political thought prevalent at the end of the eighteenth century has been read into our constitution by the courts. But unless we consider the

doctrine of stare decisis just as controlling in constitutional as in other cases it may not be said of our constitutions and particularly of the United States constitution that they adopted as a permanent guide for future action any of the theories which have been mentioned. It is only because of judicial interpretation that they have legal force. By a further process of judicial interpretation they may lose their authority.

So far as concerns the effect of the laissez-faire theory on the judicial interpretation of the constitution, even the application of the doctrine of stare decisis to constitutional cases will not interfere with a considerable enlargement of the powers of the federal government. In a number of instances, among which the attempted exercise of the power to regulate commerce is perhaps the most marked, the federal courts through the denial of the propriety of the exercise of state powers laid the basis for the exercise of federal power. However they

may have been influenced in their decisions by the laissez-faire theory, their actual decisions recognized the existence of federal power. For state power was denied because the power attempted to be exercised had been conferred by the constitution upon the federal government. When in the course of our economic development it came to be believed that Congress should take positive action, the decisions denying state power were thus at the same time precedents in favor of the propriety of federal action. On the other hand, not all the decisions recognizing that state action was proper may be regarded as precedents in favor of the proposition that Congress is without jurisdiction. For through the adoption of the rule that state action is in many cases proper only because the federal government has not acted, the question as to the propriety of federal action is left open for determination, to be influenced if not controlled by the conditions existing at the time the determination is made.

In the discussion of the possibility by judicial interpretation of adapting the constitution to changing economic and social needs we must then remember: first, that it has not been as yet determined how much pressure may constitutionally be brought by Congress upon the federal judiciary to interpret the constitution in the way desired by Congress; and second, that our constitution has been made by past judicial interpretation to take on a meaning which is not necessarily the only meaning which may be given to it. Finally, attention should be called to the fact that the present interpretation which is popularly given to the constitution is in many cases a political rather than a judicial interpretation. Political parties as well as courts have been influenced by the political and economic theories of the eighteenth and early nineteenth centuries. Under their influence Congress has not even considered the question whether it may exercise powers which a careful study of the constitution might reveal that Congress possessed. An historical tradition with regard to the constitution has sprung up which finds its basis in political expediency rather than in constitutional power. For example, Congress has only just begun to exercise its power to regulate commerce among the

several states. What the limits of that power are no one can with safety say, but that they transcend those assigned to that power by the accepted political interpretation would be denied by few who have made a careful study of the constitution itself. Now this political interpretation of the constitution may easily change. It is not in any way influenced by the doctrine of stare decisis. For Congress is not bound by the decisions of its predecessors even on constitutional questions.

If, however, we leave out of consideration the possibility that Congress may diminish the independence of the federal judiciary, if we put out of our minds the expectation that the courts will adopt any new method of constitutional interpretation, and if we confine ourselves to the consideration of the present judicial interpretation of the constitution, how shall we answer the question? In other words, are the courts through their powers of interpretation at the present time adapting the constitution to changing economic and social conditions?

To answer this question adequately would of necessity involve an exhaustive examination of almost our entire constitutional law from the point of view of its historical development. Such an examination would, however, be both impossible and out of place on this occasion. Resort to some other less thorough and less satisfactory method is thus unavoidable. It might be suggested that citations from opinions might be made which would show the attitude of the Supreme Court with regard to the constitution. But any citations which might be made as indicative of the attitude of the court, in addition to lacking the authority of judicial decision, might be met by other citations taking the opposite point of view. For in the century and a quarter of its history the Supreme Court has been subject to a variety of influences and has inevitably expressed conflicting opinions.

The only method which is applicable on this occasion would seem to be to consider certain important lines of decisions in the hope of finding from a consideration of the law developed by them an answer to the question which has been propounded. Let us take in the first place the decisions which have dealt with the powers of the federal government and particularly

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those having to do with navigation and commerce. stitution does not treat of navigation apart from commerce except in so far as it confers admiralty and maritime jurisdiction upon the federal courts. In the early days when local differentiation made state independence more important than at present for state lines now bear little relation to our economic system-the court was inclined to distinguish intrastate from interstate navigation, and to recognize a very narrow admiralty jurisdiction based upon British precedents. At the present time, however, the distinction between a navigation subject to state and one subject to federal regulation has practically ceased to exist, and an admiralty jurisdiction suited to the geographical conditions of the North American continent has been developed out of that which originated in such different conditions as were presented by Great Britain.

The way in which this result was reached is interesting as evidencing the methods of judicial interpretation through whose application the constitution has in this particular been adapted to new social and economic conditions. Originally the Supreme Court was of the opinion that the admiralty and maritime jurisdiction intended to be conferred upon the federal courts was geographically limited to waters affected by the ebb and flow of the tide. The case which laid down this rule was decided at a time when navigation on the Great Lakes and western rivers had not developed to an important extent. Later on Congress by statute extended the jurisdiction to the Great Lakes and the Supreme Court declared the statute constitutional. Still later the Supreme Court without any action by Congress extended the admiralty jurisdiction to all the important western rivers and finally based on the admiralty clause, which merely gives power to the courts, the power of Congress to regulate the operations of all vessels on navigable waters regardless of the fact that they may not be engaged in com

merce.

Somewhat similar has been the judicial interpretation of the constitutional power of Congress to regulate commerce on land. While the Supreme Court has based the power of Congress to regulate navigation in large degree on a clause in the constitu

tion which merely gave the courts the power to fix the substantive law of admiralty, in the case of commerce by land the Supreme Court has based the power of Congress to regulate part at any rate of the substantive law of master and servant upon the power given in the constitution to Congress to regulate commerce among the several states. The safety-appliance and the employer's-liability cases have thus recognized that Congress in cases involving interstate commerce may modify the assumption-of-risk and the contributory-negligence doctrines of the common law.

Another instance of the adaptation by judicial interpretation of the constitution to changing social and economic conditions is to be seen in the lottery and pure-food-law cases which have recognized that Congress through the exercise of its commerce power may take the privilege of engaging in interstate commerce from articles, commerce in which is in the opinion of Congress either productive of immorality or liable to endanger the public health. This result has been reached although it is recognized that Congress is not by the constitution the guardian of either the public morals or the public health.

The Supreme Court has in the second place expressed its belief that such general provisions of the constitution as that contained in the fourteenth amendment prohibiting a state from depriving any person of life, liberty, or property without due process of law, are to be interpreted in view of local conditions. Thus it has been held that, in the conditions existing in New England where manufacturing is of great importance, the power of eminent domain may be used in order to take property for the purposes of a dam used by a private manufacturing company. In the mountainous regions of the West it has been held proper to make use of the same power to take property for the purposes of an aerial railway used only by a private mining company. Finally, in the arid regions of the Pacific States it is regarded as constitutional to make use of both the taxing power and the power of eminent domain to further the irrigation of privately owned lands.

Indeed it may be said in a general way that the judicial interpretation which has already been given to the constitution