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Questions arising under the commerce clause, Professor Orrin K. McMurray, of the law department of the University of California.
Question arising from the administration of the postal service, A. E. Boynton, of the San Francisco Bar.
Questions arising under the treaty making power, Edward Elliott, of the San Francisco Bar,
Questions arising from the administration of the national domain, S. C. Wiel, of the San Francisco Bar.
Each sub-section is responsible for the accuracy and impartiality of its report.
This introduction, and the inquiry into the beliefs of those who adopted the Constitution have been prepared by the chairman, who is a layman. All the chairmen of sub-sections are lawyers who have made special studies in their respective subjects. In fact, all members of the section except the chairman are lawyers.
The preliminary excerpts from the Constitution and the definitions have been prepared and arranged by R. S. Gray, of the San Francisco Bar, secretary of the section.
Meeting of December 13, 1916 At the Annual Meeting of the Club, held on December 13, 1916, the election of officers was held, resulting as follows:
President, Beverly L. Hodghead; Vice-President, C. E. Grunsky; both for the year 1917. For Board of Governors for the term ending December 31, 1919, J. M. Kepner and Grant H. Smith.
At the conclusion of the election, President Hodghead called the meeting to order with the following remarks:
Remarks by President Beverly L. Hodghead THE PRESIDENT: The subject on which the committee is to report and upon which it invites discussion this evening seems to be a very large one, and it certainly is not a new one. It is the disputed zone of authority between the states and the federal government.
This has been a disputed question since there was a federal government. The republic has been established for more than a century, and yet as to some of its attributes we are still looking for the sovereignty, and at times this debate has been heated, as you know. After the courts had construed for half a century and generations had debated in vain, the armies of the republic put a construction upon the constitution which neither Senate nor courts could challenge. Men read the Federalist, and statesmen studied the debates of the convention, but it took Gettysburg, and Appomattox, and the soldier who never read the constitution, to determine and decide finally what the framers of that instrument really meant by it, and at times during that four years' conflict the meaning was in grave doubt, because you will recollect that there were a number of very strong dissenting opinions filed by the minority.
Now, it is not the purpose of this section to start another civil war. This discussion will be more temperate. The chairman of this section, to report this evening, while he may appear a grim-visaged warrior, is not seeking military fame. The section is simply pursuing an earnest inquiry into the true relation existing between the states and the federal government, which is a serious question, and is a vital and pressing issue, as it always has been.
The constitution must be constantly interpreted anew in respect to its application to changing conditions under which it operates, and to the new instrumentalities of government and of commerce and of international dealing.
The civil war did not settle all the questions; in fact, it settled very few questions; but what it did settle, of course, it settled with an air of finality. When the constitution was adopted there were no railroads, no steam, no telegraphs, no electricity, no corporations to amount to anything. Now, these have become the chief agencies and instrumentalities of interstate commerce, which Congress must regulate. The conditions which made necessary the Sherman antitrust law, the Interstate Commerce act, and the Clayton law, and the Employers' Liability law, White Slave act, and the Adamson bill, did not exist when the constitution was adopted, and only in a faint degree at the time of the civil war. But now probably more constitutional questions arise during one term of the Supreme Court at Washington than were considered by that court during the first half century of its existence. These questions relate to the intricacies of commerce, to postal regulations, the regulation and disposition of the public domain, the conservation of its natural wealth, to international relations, and the treaty-making power. Important governmental problems, of course, are constantly arising and novel applications are made of the power given by the constitution, and in each instance the courts are led to inquire what was the real meaning of the framers of that instrument in respect to matters that the framers never heard of and therefore, of course, had no meaning at all. The convention of 1787, for instance, probably did not contemplate the enactment of a white slave law, as it has been interpreted, and it remains for the Supreme Court of the United States to decide whether Congress did or not.
The section is not attempting to solve any of these disputed questions. That would be futile. It is simply undertaking to ascertain how far they have been solved by the courts, and how far there is still a judicially unexplored zone of authority between the states and the federal government. By a singular turn of the wheel of construction, we now find persons who argued and debated for the supremacy of the Union are contending for the rights of the states. The particular scope of the work of investigation which this section has undertaken, of course, I must leave to the chairman to explain. While the chairman has a fuller report or discussion which will come later in the evening, I want to ask Mr. Adams at the outset to outline in brief to the members of the Club, particularly those who are not members of the section, just what work has been laid out for the section, what scope they have undertaken to cover, and generally into what branches it has been divided and in what manner they propose to present their report. I will ask Mr. Adams to take this statement. (Applause.)
Remarks by Edward F. Adams MR. ADAMS: The President is correct in saying that those who expected to hear a scrap will be disappointed. The work of the section thus far has been that simply of investigation. It is expected that under another leader the section will proceed to recommend or disapprove of certain policies. That, however, will be for the future. What the section has sought to do is not to make a law book, or a book for lawyers, but to ascertain as nearly as it was possible to do so the delimitation of the twilight zone between the state and national authority, if there is one. We were simply endeavoring to accomplish that by getting from the actual decisions of the Supreme Court what is settled law as to certain branches of this inquiry, and wherein the law is still open to judicial construction. That is all that we have undertaken to present to you tonight.
The field was so great that it was impossible to cover it. We have had no money from the Club. The labor has been very great, and it was impossible to secure the assistance of a sufficient number of competent men who could give their time to ascertaining those matters as to all subjects covered. For instance, we have omitted taxation entirely, which is an exceedingly difficult subject if one chooses to investigate it. So in other respects.
Now, it was not possible for the section as a whole to express any opinion as to the correctness of the conclusions reached by the various sub-sections. Therefore, each sub-section has been made responsible for its findings of the delimitation of the twilight zone within the sphere which was assigned to it, if they found a twilight
To myself there was assigned the duty of ascertaining as far as it could be what the fathers of the republic thought they had done when they had finished the constitution.
That was not a new subject to me. It happens that my time runs back to the civil war and immediately thereafter, when the relative rights of the state and the nation were a subject of most heated discussions, such as this generation has not seen at all. became interested in it. I was then a business man engaged in selling goods as well as I could, and whenever I made a trip to the East I always took the time off to visit the Congressional Library or Boston Public Library, or the New York libraries. I was certainly at that time in favor of the principles which finally culminated in the formation of the republic as we know it.
I took the trouble to find, I think, the legal instrument by which, as I remember it now, some forty communities, as independent of
each other as New York and Virginia ever were, existed east of the Hudson River. I think at one time I knew more than anyone else knew-or anyone needs to know-about the subjects which brought the various communities together until it got to be clear sailing. The data was intended to be published. It was brought out here and was burned up. That was all right; it was all rubbish. I found nothing there that was of any consequence except to the antiquarians, and antiquarians do not count. But in that futile search for something worth while I acquired an interest that has never
I say this to qualify myself as an expert. The other speakers are qualified by their degrees, and I am simply trying to qualify as an expert on the subject that was assigned to me.
I will present first my conclusions. The evidence precedes the conclusions and will be printed. Each of the chairmen of the committee will present his conclusions. I have seen some of them and others I have not, but the proposition is that they will present their conclusions that they had reached without any of the evidence; the evidence, of course, will be printed; and after we have all finished, I, with my statement of what the fathers thought they had done, and the chairmen of the committees with what they find that the Supreme Court say they did do, then will follow a paper prepared by myself which is not a report of the committee, but which has been read by the committee, and which I am permitted to read as expressing my own views without committing the section to anything.
I will now read the conclusions which follow my report of the investigations which I made. They are brief and refer to the record which precedes them:
1. There was opposition to some of the powers explicitly granted but no dispute as to their meaning or direct effect.
2. There was a general recognition of the fact that there were some laws which in the interest of the general welfare it would be necessary for Congress to enact whose necessity could not be foreseen, and which could not therefore be explicitly enumerated among the express grants of power.
3. There was great fear that this apparently indispensable power of implication, its theoretical constitutionality once established, would be extended by the federal government so as to "usurp” powers not only, at the time, not intended to be granted, but which were on the contrary intended to be effectually withheld.