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Is Our Constitution too Rigid? more flexible Constitution is argued more forcibly and clearly. Professor Smith says: —
"The effort to bend the Constitution ency to meet to evade new social its restrictions needs, andwhen the tend— these appear harmful, may be justified on the
ground of necessity; but progress along these lines has many undesirable results. Evasion of law does not increase respect for law, and the lack of respect for law is already one of our national vices. Further, the attempt to evade the law
and to justify its evasion is unfavorable to intellectual integrity, to straight thinking and honest speech, on the part of our legislators, and also, in second
instance, on the part of our judges." The feeling of most people will be that Professor Smith is right on this point.
chicanery in attempting to override its provisions. A third reason for making the Con stitution more easily amendable is the need of injecting a more wholesome spirit into national party politics. Pro fessor Smith writes: —
“Mr. Roosevelt’s New Nationalism wouldbe an excellent party programif the
results that he desires could be attained without
amending
the
Constitution;
but in view of the practical impossi bility of securing the necessary amend ments in the constitutional way, his
propaganda began, and has for the present ended, in criticism of the Su preme Court because that tribunal has
not developed our constitutional law along new nationalistic lines. Whether Mr. Roosevelt's strictures are justified
There is, of course, the consideration
or not is here beside the question.
that whereas the written Constitution is now accepted as the test of the funda mental law, a policy of amendment by
attitude is cited to show the difliculty
His
of building up a party pledged to radical reform measures, when it is obviously
judicial interpretation, once firmly estab
impossible for a party to redeem such
lished, would lead to a change in the attitude toward the written Constitu tion. We would virtually be living under
pledges.
an unwritten Constitution, as in Eng land, and the letter of the law would
not occupy so prominent a place in man's minds as to lead them to accuse judges of a lack of candor, nor would judges themselves have to feel any shame in
setting up new criteria of constitutional rights. The fallacy of such reasoning, however, lies in the fact that our Ameri can institutions have their roots in a living written Constitution which can
not become an obsolete instrument of merely historical interest, and that the written Constitution will long retain an
undisputed supremacy which it does not exert in the fundamental law of other countries.
Consequently judges must
continue to give heed to the letter of the law, and to avoid every suspicion of
If a party that can carry a
presidential election by a fair majority of electoral votes could also amend the Constitution, a strong national party might well be formed with a program more radical then Mr. Roosevelt's, a program which men of conservative
temper would probably term socialistic. Under such conditions, conservatives would no longer be able to rely upon the
rigid Constitution and the Supreme Court to protect property interests; they would be forced to organize a party representing their principles. Even a conservative, if a broad-minded man, might view such a result with satisfac
tion. National parties would then represent something besides the scram ble for oflice, and their leaders would probably be men of a difl'erent type from
the majority of our practical politicians.” It may be added that such a change
