constitutions. A survey of the constitutional decisions of the past twenty years or more suggests the theory that the courts are successfully escaping from the dilemma, first, by abandoning the conception of the written constitution as a yard-stick and recognizing its possibilities of growth; second, by conceding a due weight to the popular, as distinguished from the juristic, interpretation of the Constitution, and third, by contributing to the growth of a system of constitutional policy.

A written constitution, like that which has been established for the United States or for any one of the States, cannot remain a set of immutable formulas, dead and embalmed for all time. It must function as an organism. That is, it must live and grow with the life and growth of the society which it purports to govern, or else, to the extent that it remains stationary and unresponsive to the urge of an expanding public consciousness, it will be discarded by that society, either silently or with violence, and in either case it will lose its authority as law and become no more than an historical document.

Now there are at least four ways in which a written constitution can grow. First, by conscious and intended change effected in accordance with methods provided by the constitution itself. Several times within the last few years the people of the United States, acting through their representatives in Congress and then through their State legislatures, have expressed their conviction that the national Constitution should be amended, and it has been changed in conformity with their desires, and in each case the movement has been one of growth and not of contraction. Second, a constitution may undergo a process of unconscious and gradual modification without formal amendment. This happens when usages and customs grow up around a rigid constitution, which do not so much contravene it as supplement it, but which eventually replace or transform some of its provisions. A conspicuous illustration may be found in the history of the electoral college. The framers of the Constitution had no idea of committing the selection of a President to the general body of voters. The "electors" were meant to be a carefully chosen body, charged with entire responsibility for the nomination of candidates and voting according to their personal convictions. But by a custom

or usage of the Constitution it has come to pass that the candidates are named by party conventions, and the people cast their ballots for a set of intermediaries, who formally comply with the letter of the Constitution but automatically vote the ticket of their party. Thus the formulas of the Constitution are preserved, but they have been in this respect emptied of all meaning. The people have changed their Constitution, without disobeying it, by the growth of a habit. Third, a written constitution may grow as a consequence of the interpretation of its various provisions by the courts. It is not necessary to repeat the familiar story of the expansion of the Federal Constitution under the vigorous hands of Chief Justice Marshall and his associates. They changed no word of it. Only a few of its provisions underwent the process of a constructive enlargement. But as it stood, it might have fitted a feeble alliance of proud and not very concordant semi-sovereignties. As they left it, it fitted a powerful, autonomous, and closely compacted nation.

But in the fourth place and this is the point to be especially emphasized here-a constitution may change and expand through a process of interpretation by the people, growing out of their progressing views of morality or of social and industrial relations. This last is unconscious. That is, the people are mostly unaware of the process, or they have no deliberate and continuous intention in regard to it, although, at any moment when their attention is sharply pricked, they may perceive the result. It is, furthermore, not specific nor very definitely formulated. It does not base itself upon the words or phrases of the Constitution. It is not a syllogism but a sentiment. It takes but little account of the framework of institutions and still less of precedent and tradition, for its wellsprings lie in the genius of our race and in the popular understanding of American liberty and self-government. Again, it is expectant rather than empirical. It assumes that the constitutions will be found in harmonious relations with the will of the people as each successive occasion shall arise. But it does not reason from experience, and this assumption has very little if anything at all to do with the judicial history of the Constitution. Finally, it is not at all legalistic, but it is intensely pragmatic. If the popular conception of con

stitutional government could be made articulate, it might be heard expressing itself in terms somewhat like these:

"This is a government of the people by the people. Whatever the people deliberately decide upon in the way of governmental action they should be allowed to carry through. That is why we have our written constitutions. They were meant first to establish popular government and then to insure its continuity. They were not designed to cast society in rigid lines; on the contrary, their function is to give its expansion full play. Now this is an era of change. The day of intensive individualism is past. We are no longer an aggregation of units: society is the unit. Democracy is an organization of society in which every man is the keeper of his brother's welfare. Whatever injures or debases one reacts upon the whole. Whatever elevates one makes for the common good. Moreover, it is not an age of simple and uncomplicated relations. More and more the complexity of social and industrial interactions increases. So it is necessary to revise old rules, to discard outgrown standards. The principles of justice, it is true, are immutable, but in the distribution of justice we must take cognizance of the needs and the opportunities of the day and hour. Of course we know that our constitutions contain prohibitions and limitations. No one may be deprived of his life, liberty, or property without due process of law; all are entitled to the equal protection of the laws, and so on. But these are promises. They make safe forever the fundamental rights of free citizens. But they are not shackles to bind the feet of democracy, forever struggling to its distant goal. They are not manacles to chain its upward-reaching hands. If it were so, woe to democracy!"

When this general and liberal understanding of the meaning of the constitution is brought to the test of criticism by the courts, there is popular expectation that it will be adopted and followed. If it is not, in any notable case, there is a shock of surprise. It is then that the courts are denounced as reactionary and narrow-minded. It is then that the outcry rises against legalism. It is then that proposals come to the fore to deprive the courts of their authority to adjudge laws unconstitutional. The demand for the recall of judicial decisions is precisely a

demand for the right to substitute the popular interpretation of the constitution for the juristic interpretation. But popular interpretation must be translated into juristic interpretation, because otherwise it cannot take form and become definitely applicable to concrete cases. There is no way in which it can become practically effective except when it is to be applied to the rights of individual persons. Yet popular interpretation cannot be allowed to destroy constitutional limitations altogether; otherwise, public opinion would be the only constitution.

This, then, has been and still is the problem for the courts: to translate popular interpretation into juristic interpretation to the utmost extent compatible with saving the Constitution itself. And anyone who has studied the course of their decisions with an unprejudiced mind, and who has looked at them as human documents as well as legal judgments, will be justified in saying that, in the solving of their problem, our judges have been neither reactionary nor narrow-minded, but that, on the contrary, they have shared the popular vision and had sympathy with the popular aspirations, and so have aided and not retarded the growth of the Constitution.

For instance, in the marvelous expansion of the police power, from a function strictly confined to a few specific purposes to a practically unrestrained authority to legislate for the general welfare, the courts have not led public opinion, much less created it. But they have observed it, they have recognized it, recognized even that it has insensibly changed the constitutions, and they have given effect to it in their decisions.

Again, there has been a widening of the powers and activities of the Federal Government far beyond the prevision even of Chief Justice Marshall. There has arisen a "doctrine of paramount necessity," which is in effect a belief that Congress, under the guise of one or another of its admitted powers, can and should do anything which seems to be for the welfare of the whole country and which the separate States either cannot or will not unite in providing for by adequate legislation. And this is almost entirely the outgrowth of a changing popular conception of the scope and functions of the National Government. Insensibly it

has modified the Constitution. The courts have neither prompted nor fostered it, but they have recognized and acceded to it.

But the opportunity for the courts to exercise discretion, to adopt an attitude, to follow or retard a popular tendency, grows out of the fact that some of the most important of the constitutional limitations are expressed in general and indefinite language. If all were as precise as that which forbids the enactment of “bills of attainder and ex post facto laws," the courts would be held in rigid limits, and any manifestation of a tendency or proclivity on their part would be next to impossible. But such phrases as "due process of law" and "the equal protection of the laws" are so nearly incapable of exact definition that the courts have steadily refused all invitations to mark out their limits. Moreover, there are implied limitations in the constitutions—implied in the sense that they are thought to be implicated in the broad terms of some of the indefinite clauses, or that they emerge as a generalization from some of the conclusions that have been definitely reached as to what those clauses do or do not mean. These implied limitations set up barriers to legislation which are called by some such names as "justice," "reasonableness," "liberty," and "the inalienable rights;" and these terms, although they also are hard to define, certainly do make a nearer approach to correspondence with a concrete idea.

It is these implications or generalizations which now have weight with the courts. Left to deal at will with the broad and indefinite limitations of the constitutions, they have refused to give ear to the counsels of a dry literalism. Instead, they are trying to solve their problem by digging out the living meaning of such constitutional declarations, in the endeavor thus to arrive at norms and standards which shall serve the practical purposes of contemporary life. The matter is well put by Professor Corwin in the following terms:

Our courts today, in construing the Constitution, are in a position to avail themselves of the modern flexible view of law as something inherently developing, in a way never before possible to them. All constitutional limitations setting the bounds between the rights of the community and the rights of the individual have tended of recent years to be absorbed into the constitutional requirement of "due process of law," and this requirement, in turn, has come