592 CONSTITUTIONAL LAW 



United States judiciary must put a much more liberal interpreta- 

 tion upon the existing commerce clauses of the constitution. The 

 distinctions between commerce " among the commonwealths " and 

 commerce within the commonwealths have now become too attenu- 

 ated to bear the strain much longer. They must go, or the federal 

 system of government may break down entirely. 



It certainly is not necessary for me to enter into any argument 

 at all to show that the scandals of polygamy and divorce, which 

 bring the blush of shame to the cheek of every true American, have 

 their root in the system of local regulation of the subjects of marriage 

 and divorce. These relations are fundamental in the civilization of 

 a nation. Their proper regulation must rest upon the national con- 

 sciousness of right and wrong. States' rights must give way upon 

 this point, too, if they would stand in regard to those subjects which 

 are not so completely national in their character. In fact, the whole 

 system of federal government, that is, dual government under a 

 common sovereign, is now under great strain, in consequence of the 

 rapidly developing nations and national states. It is a question 

 whether it can stand against the centralizing forces in modern polit- 

 ical and civil society. It certainly cannot unless it yields the trans- 

 fer of some subjects, such as those just mentioned, from local to 

 central regulation. This has been done in Switzerland, the German 

 Empire, and Brazil, and in large degree in Mexico, and these United 

 States must follow the same course of development or witness soon 

 the same sort of a movement in universal reform as occurred in 1787. 



The fifth and last great problem, or rather series of problems of the 

 constitutional law of to-day which I shall consider in this paper, 

 relates to civil liberty. 



From the point of view of public law civil liberty, as distinguished 

 from political liberty and moral freedom, is the immunity of the 

 individual person within a given sphere against both the powers 

 of the government and the encroachments of another individual 

 or combination of individuals. Constitutional law should construct 

 this sphere, define its contents in principle, fix its boundaries, and 

 provide its fundamental guarantees and defenses. Usually this part 

 of a constitution is called the Bill of Rights, although in its nature 

 it is rather a Bill of Immunities. 



Every written constitution in the civilized world, except that of 

 France, contains such a division. Perhaps the constitution of the 

 German Empire ought to be excepted, although the constitutions 

 of the states of the Empire contain such provisions, and the Imperial 

 Constitution itself, in slight measure, contains them. The reason 

 why it does not contain them in larger measure is quite apparent. 

 It is simply because the Imperial Government is one of enumerated 

 powers. This is not a sufficient reason, as we know from American 



