PROBLEMS OF CONSTITUTIONAL LAW 597 



I contend that this is no satisfactory solution of the problem, 

 because, in the first place, in a national state, although it may have 

 a system of federal or dual government, sound political science re- 

 quires that the entire individual immunity shall be defined, in prin- 

 ciple, in the national constitution, and shall have the fundamental 

 means and guaranties of its defense provided in the national con- 

 stitution. The most fundamental and important thing in any free 

 government is the system of individual immunity. Free govern- 

 ment exists chiefly for its maintenance and natural enlargement. 

 The contents of this immunity and the methods and means of its 

 defense should, therefore, be determined by the national conscious- 

 ness of right and justice. Any other principle than this belongs, not 

 to the modern system of national states, but to the bygone system 

 of confederated states. It was a resurrection of the doctrine of 

 states' rights, in the extreme, when the Supreme Court of the 

 United States put the interpretation which it did upon the new 

 amendments, a doctrine which should have been considered as 

 entirely cast out of this system by the results of the Civil War. 

 This solution is unsatisfactory, in the second place, because it per- 

 petuates the contention between the nation and the states concern- 

 ing the control of this sphere, while if there is anything in a political 

 system that ought to be made clear and fixed and simple it is this 

 domain of civil liberty. The welfare and prosperity of the whole 

 people depend upon it in a much higher degree than upon any other 

 part of that system. Uncertainty about it and contention over it 

 cannot result, in the long run, advantageously to the average citizen, 

 however it may allow a larger license to the powerful. 



The second problem under this head to which I would refer has 

 been produced by the experience of the last six years of the Republic, 

 in what is called its " imperial policy." This problem had to come 

 sooner or later. No country with so high a civilization as the United 

 States can keep that civilization all to itself in the present condition 

 of barbarism or quasi-barbarism throughout the larger part of the 

 world. It must share its civilization with other peoples, sometimes 

 even as a forced gift. This is nature's principle, and no civilized 

 state can permanently resist its demand. It came rather suddenly 

 upon our country, and some of us thought that we were not quite 

 prepared for it, that we had not yet placed our own house in order. 

 But every student and observer of the world's history and the world's 

 methods knows that civilized nations are not, in the great world- 

 plan, allowed to delay the discharge of the duty of spreading civil- 

 ization until, in their own opinion, they are ready to proceed. 

 Something always happens to drive them forward before they are 

 perfectly prepared and equipped for the great work. And so before 

 the United States had fashioned its constitutional law to meet the 



