has shown itself capable of adapting that instrument to most of the varied geographical conditions which exist in a continent as diversified as is North America and to permit of the most advantageous development of its economic resources.

It is true that as yet the Supreme Court has not through the judicial interpretation of the constitution adapted it so fully to the changes in economic and social conditions which have been due to the industrial revolution of the last one hundred and fifty years. American courts rather generally, and the Supreme Court to a certain but after all on the whole rather small extent, have not been able to divest themselves of the idea that legal liberty is the only liberty which is protected by the constitution and have sometimes forgotten that legal liberty in the absence of economic liberty is a shadow without substance, under which there is little if any protection from the burning heat of economic struggle.

A case in Pennsylvania has thus laid down the proposition that an employer is denied his constitutional right to the pursuit of happiness by a law which requires him to pay his employes once in two weeks. In the volume of the digest in which this case is mentioned the very next case referred is to the effect that one is not denied the right to the pursuit of happiness by a law forbidding the smoking of opium. The immediate juxtaposition of these two cases is interesting as emphasizing the tendency of American courts to recognize that while individual rights are not violated by laws regulating conduct regarded as inconsistent with prevailing ethical views, they are infringed by any attempt to protect the classes weaker in economic power by diminishing their sphere of legal liberty.

It must be admitted, however, that the Supreme Court has not as yet, largely because of a defect in our appellate procedure, been in a position to express itself upon some of the most important phases of the liberty guaranteed to the individual by the constitution. But in most of the cases which have come before it where it was possible to prove that legal liberty must be curtailed in the interest of health and safety its decisions have recognized that under the economic conditions in which we live the liberty which we may have is much less than

would have been recognized a century ago as our due. It may be added also that in a number of cases the Supreme Court has expressed itself in such a way as to show clearly that it is aware that the economic liberty of vast classes of persons at the present time has been so curtailed that the sphere of legal liberty for which the advocates of a laissez-faire policy contend must also be seriously curtailed if we are to protect the economically weak from their own really involuntary acts. Thus in the case of sailors the court has held constitutional an act of Congress prohibiting under a penalty any payment of wages in advance, and in the case of miners has upheld state statutes which have regulated the method of paying employes by providing for the cashing of coal orders when presented to their employers, and for the weighing of coal without screening where miners are paid by the weight of coal. In one of these cases the court refers to the necessity of protecting the sailor against his own improvidence, and in another cites with apparent approval from the decision of the state court appealed from where it is said: The legislature evidently deemed the laborer at some disadvantage under existing laws and customs, and by this act undertook to ameliorate his condition in some measure by enabling him or his bona fide transferee, at his election and at a proper time to demand and receive his unpaid wages in money rather than in something less valuable. Its tendency, though slight it may be, is to place the employer and employe on equal ground, and, so far as it accomplishes that end, is commendable.

It is, of course, true that a very few of the decisions of the Supreme Court have been a grevious disappointment to some of the most ardent advocates of social reform, but it is to be remembered that these decisions were usually made by a divided court, that the personnel of the court is seldom the same for a very long period, that its members are appointed by an officer who is being brought day by day closer to the people and finally, that the Supreme Court has been known to reverse its opinions, and is not impervious to criticisms and to public demands.

There would seem therefore to be really no serious danger

that judicial interpretation as seen in the long series of decisions of the Supreme Court is unable to adapt our practically unamendable constitution to changing economic and social conditions. If this may not be said of all the state courts our remedy is close at hand and may be applied without abandoning the traditions of the past.

If state courts are, because of their adherence to precedent, unable or unwilling to adapt the provisions of state constitutions to changes in economic conditions, we may amend the state constitutions. Whether that is done by the ordinary methods of constitutional amendment or by the method which has come to be spoken of as "the recall of judicial decisions" is quite immaterial from the viewpoint of the question under consideration. If we regard the "recall of judicial decisions" with suspicion and at the same time consider the present method of constitutional amendment as too difficult, too slow, or too cumbersome, it is a comparatively easy matter to adopt an easier, quicker, and more simple method. The various methods of amendment provided by different state constitutions offer us a choice of methods wide enough to suit almost any taste.

If when our state constitutions are so amended as to make it possible for the state courts to bring their decisions into accord with existing economic conditions, those courts still persist in rendering decisions with regard to the constitutionality of state laws from the viewpoint of the constitution of the United States which are not in accord with the decisions of the United States Supreme Court-in other words, if the state courts refuse to recognize the Supreme Court as the final arbiter as to the meaning of the United States constitution-we should urge upon Congress the necessity of passing the bill introduced at its last session providing for an appeal to the Supreme Court from the decisions of the state courts on federal questions as well in cases in which state laws have been held unconstitutional from the point of view of the federal constitution as in those cases in which they have been held constitutional. If that were done, the final judicial interpretation of the United States constitution would in all cases be made by that court which, whether because of the method of appointing its mem

bers, or because of the wide public experience which most of them have had, or because they come from widely different and differing parts of the country, has shown greater capacity than perhaps any other judicial body to treat the constitution of the United States as an instrument, to use the words of its judges, "made for an undefined and expanding future and for a people gathered and to be gathered from many nations and of many tongues," as an instrument whose "unchanging provisions are adaptable to the infinite variety of the changing conditions of our national life."

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TH

THE AMENDMENT OF THE FEDERAL

CONSTITUTION

I

J. DAVID THOMPSON

Law Librarian, Columbia University

HE subject of our discussion to-day is the adaptation of written constitutions to changing economic and social conditions. One method of such adaptation, namely, by judicial interpretation of existing provisions, has been treated by the previous speaker. It is my purpose to consider a dif- ferent method-alteration by the process of formal amendment, in the particular case of the Federal Constitution. I am not, however, concerned with desirable changes in the substantive part of the constitution, but I wish to direct attention to the procedure for making such changes to the amending clause itself.

When the members of the Federal Convention of 1787 had to consider what provision should be made for remedying defects in their work which they expected time and experience to reveal, there were practically no models or precedents to guide them. The state constitutions offered little that was suggestive. The Articles of Confederation were virtually unamendable, requiring agreement in Congress and confirmation by the legislatures of every state in the Union; in fact, it was this very condition that made necessary the calling of a convention and the adoption of the new constitution by revolutionary methods.

2

The delegates to the Federal Convention had, therefore, to find a solution to a new problem and the account of the debates in Madison's journal shows plainly their uncertainty as to the form it should take. Randolph's resolution on this subject,

1 Read at the meeting of the Academy of Political Science, Oct. 26, 1912.

2 Art. xiii. It is interesting to note, however, that Franklin's draft of articles of confederation (1775) required amendments submitted by Congress to be approved by a majority of the colony assemblies. Cf. Watson, Constitution, pp. 1302-1303.