WOE UNTO YOU, LAWYERS!

practically all Constitutional Law, it is impossible to tell what the Court is going to
call unconstitutional, until the Court has gone into its trance and evoked a spirit in
the shape of a “controlling” principle.
Though the bulk of Constitutional Law as applied to the states stems in a
mystic manner from the “due process” clause of the Fourteenth Amendment, its
parent clause in the Fifth Amendment has not been used or needed so often as an
excuse for calling federal laws unconstitutional. Railway workers were doubtless
interested to learn that the Congressional outlawing of yellow dog contracts –
contracts forbidding membership in a labor union – deprived the railroad companies
of liberty and property without due process of law. Women who worked in
Washington, D.C., were doubtless fascinated to hear that their employers had been
similarly deprived, by a Congressional act setting minimum wages for women. Both
the railway men and the Washington women were probably especially impressed to
be told by the Supreme Court that anti-union discrimination and sweatshop wages
were protected against Congressional interference by none other than the American
Bill of Rights – of which the Fifth Amendment is, of course, a part.
But the Supreme Court’s pet reason for calling federal laws unconstitutional
is even more complicated than the “due process” gag, and even harder to trace back
to the Constitution itself. The general idea is that the federal government may not do
anything that the Constitution does not specifically say it may do. This notion is
what is known as “strict construction” of the Constitution, and it is all mixed up with
the slogan of “states’ rights” which is a very nice and very handy political slogan for
those who do not like what the federal government happens to be doing at the
moment.
The chief reasons usually given by the Supreme Court for backing the strict
construction principle – instead of the contradictory “loose construction” or
let-the-federal-government-do-anything-the
Constitution-doesn’t-say-it-mayn’t-do-principle – are two in number. The first
reason is that the Founding Fathers, in person, were strict constuctionists and
intended to hog-tie the federal government when they wrote the Constitution. But
that, as every historian knows, is utter nonsense. The Founding Fathers, almost to a
man avowed enemies of “states’ rights,” were out to give the federal government all
the rope they could possibly give it. Still, as the present uses of the “due process”
clauses indicate, a little matter like historical inaccuracy is never allowed to interfere
with a general principle of Law.
The second reason the Court gives for its zealous protection of “states’ rights”
is the Constitution’s Tenth Amendment. (Those amendments begin to look more
important than the whole original Constitution; and to any of the legal tribe they
are.) What the Tenth Amendment says is: -- “The powers not delegated to the
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