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Editor's Introduction CONSTITUTIONALISM has played a dominant role in the United States. It has affected public affairs both for better and for worse, at some junctures restraining mere momentary and dangerous impulses and at others standing in the way of mature judgment. However, although its significance throughout our life as a nation will not be disputed, comprehensive histories of American constitutional development, covering the whole ground within reasonable compass, have been wanting. This book provides such a survey. But Professor Swisher has not merely filled an hiatus. In fact, that contribution may seem relatively small when other merits are envisioned. His blueprints show the skill of a master architect and also an originality that has given to the rebuilt edifice a better design and more satisfying dimensions. He writes both with authority and, unlike some specialists, with rare insight and penetration. Already his books and articles have brought him a high reputation in the field that has commanded his interest since undergraduate days. At the same time they reflect more than technical competence: above all, perhaps, a realization that law is an "end product," shaped by the interplay of social forces and constantly being reshaped in compliance with the dynamic needs of society. Respect for tradition does not crowd out breadth of view, freshness of judgment, or the vigor of an inquisitive mind. From early days under the influence of a great teacher, the late Russell M. Story he broke free from the formalism of the Pharisees and, peering behind the law and the prophets, searched for the springs of action, the causative factors. His first book, which dealt with the California constitutional convention of 1878-1879, was concerned mainly with motives and political techniques. His biographies of Justice Field and Chief Justice Taney show keen awareness of the complexities that go into the framing of judicial opinions. Practical acquaintance with problems of administration at Washington and service for two years as special assistant to the Attorney General confirmed his realistic attitude. Realism here manifests itself in various ways. Constitutional problems are viewed, not in any narrow legalistic sense, but in relation to concrete and shifting circumstance. Law appears as the creature of its environment. Judges, whose opinions modify or make law, respond to a like control. They come to the bench with a formed social outlook or at least tendencies toward it, and often interpret the law in the light of personal philosophy. That human frailty Professor Swisher exposes in his analysis of judicial opinions. But he does not overemphasize it or assume that judges are abnormally biased. Nor does he look askance at tradition and precedent. If today means more to him than yesterday, he does not imply that the past, even the distant past, should be ignored or neglected. He sets great store by experience. He believes that, in spite of the hazards of navigation which lie ahead, our constitutional heritage will help us in charting a course to some sate harbor. A unique feature of this book is its expansion, like a river, from remote sources to the vast delta and gulf of our own time generations ago, a trickling stream; now, a mighty flood. This feature may be illustrated by remarks which Sir John Seeley made sixty years ago. He felt that the interest of English history should deepen steadily to the close. "Yet our popular histories scarcely seem to think so. . . . English history, as it is popularly related, not only has no distinct end, but leaves off in such a gradual manner, growing feebler and feebler, duller and duller, towards the close, that one might suppose that England, instead of steadily growing in strength, had been for a century or two dying of mere old age." Professor Swisher does not leave off in a gradual manner. The fifteenth of thirty-nine chapters carries us through the period of Reconstruction. Approximately half of the book is devoted to the present century. Interest centers in the problems of our own time. Yet we are reminded here, as in the pages of William Stubbs, that the roots of the present are buried deep in the past and that there is a certain continuity in the majestic movement of politics. Several authorities in constitutional law have read parts of Professor Swisher's manuscript and have commented on its quality with enthusiasm. The book deserves high tribute. In addition to being praised by the experts, it will be widely read. Within and without our college gates it may well become the chief medium through which Americans will familiarize themselves with the growth of the Constitution. EDWARD MCCHESNEY SAIT POMONA COLLEGE Table of Contents INTRODUCTION CHAPTER 1 The Constitution in Embryo The British Colonies in America. The Constitutional Heritage. "The Beginnings of Constitutional Organization. Government Under the Articles of Confederation. CHAPTER 2 The Written Constitution The Constitutional Convention. The Provisions of the Constitution. The Ratification of the Constitution. CHAPTER 3 The Constitution in Operation Establishment of the Government. The Executive Departments. The Judiciary. The Cabinet. CHAPTER 4 The Program of the New Government Foreign Commerce as a Source of Revenue. Support of the Public Credit. The "Continental" Debt. Assumption of State Debts. A National Bank. The Revenue System, The Control of Foreign Affairs. Ware v. Hylton. CHAPTER 5 Federal Turmoil Private Collection of Debts from States. Alien and Sedition Acts. The Virginia and Kentucky Resolutions. Enforcement of the Sedition Act. CHAPTER 6 Growth of Federal Judicial Power The First Decade. Marbury v. Madison. Rivalry Between State and Federal Judiciaries. CHAPTER 7 The Presidency and the Union The Twelfth Amendment. The Jefferson Administration. The Purchase of Louisiana. The Burr Conspiracy. Restraining American Commerce. The War of 1812. Internal Improvements. The Presidential Term. CHAPTER 8 The Obligation of Contracts Grants of Land Made by State Legislatures. Contracts in the Form of Exemption from Taxation. The Confiscation of Church Property. Charters as Contracts The Dartmouth College Case. State Bankruptcy Laws. CHAPTER 9 The Bank of the United States The Second Bank of the United States. McCulloch v. Maryland. Osborn v. Bank of the United States. The National Bank in National Politics. CHAPTER 10 The Control of Commerce Gibbons v. Ogden. Brown v. Maryland. Entanglement with the Issue of Slavery. The License Cases. The Passenger Cases. The Pilot Case. CHAPTER 11 - The Control of Corporations The Interpretation of Charters. State Banking Corporations. The Extraterritorial Powers of Corporations. Corporations and the Federal Courts. Hostility to Corporations. CHAPTER 12 Problems of Slavery The Missouri Compromise. Nullification. Fugitive Slaves Prigg v. Pennsylvania. The Compromise of 1850. The Kansas-Nebraska Act. Judicial Action. The Dred Scott Case. The Booth Cases. Interstate Rendition. From Politics to War. CHAPTER 13 On the Eve of the Civil War Congress. The Executive. The Judiciary. Political Parties. No Fourth Branch of Government. CHAPTER 14 The Maelstrom of Civil War Beginnings of Lincoln's Administration. Impairment of Civil Rights. Military Power Expanded. The Milligan Case. Censorship. Conscription. The Legal Status of the Civil War The Blockade. Treason. Emancipation. The Partition of Virginia. Congress and the Conduct of the War. The Regulation of Private Enterprise. CHAPTER 15 Reconstruction Congress and the President. Impeachment. The Supreme Court and Reconstruction. The Fourteenth Amendment. The Fifteenth Amendment. Judicial Interpretation. Judicial Construction of Enforcement Legislation. The Solid South. CHAPTER 16 Banks and Money Legislative Changes. The Legal-Tender Controversy. Circulation of Legal-Tender Notes. The Control of Inflation. CHAPTER 17 Support for Agriculture Early Legislative Proposals. The Civil-War Measures. Growth of the Department of Agriculture. Funds for Agricultural Education. CHAPTER 18 Control of Railroads The Pacific Railroads. Business Affected with a Public Interest. Development of the Public-Interest Doctrine. Regulation. The Interstate Commerce Commission. CHAPTER 19 The Menace of Monopoly Enforcement of the Sherman Act. Combinations of Labor. CHAPTER 20 The Income Tax The Income Tax of 1894. The Income Tax on Trial. CHAPTER 21 Imperialism Alaska. Hawaii. The Spanish-American War. Government of the New Possessions. Does the Constitution Follow the Flag? CHAPTER 22 Expansion of the Government Congress. The Executive. Administrative Personnel and Organization. The Judiciary. CHAPTER 23 Theodore Roosevelt and the Square Deal The Department of Commerce and Labor. The Hepburn Act and the Railroads. The Anti-Trust Act in Operation. Conservation of Natural Resources. The Pennsylvania Coal Strike of 1902. The Panama Canal. The Supreme Court. Labor Cases in the Supreme Court. Judicial Variety. CHAPTER 24 - Taft and the Roosevelt Policies Economic and Political Background. The Financial Program. The Income-Tax Amendment. Railroad Regulation. The Commerce Court. The Supreme Court and Railroad Regulation. The Control of Corporations. Conservation of Natural Resources. "White-Slave" Legislation. The Webb-Kenyon Act. The Recall of Judges and Admission of Arizona. The Direct Election of Senators. Administrative Changes. The Judiciary. Supreme Court Personnel. CHAPTER 25 Woodrow Wilson and the New Freedom The Federal Reserve Act. The Federal Trade Commission Act and the Clayton Act. Anti-Trust Law Enforcement. The Rights of Labor. The Adamson Act. State Regulation of Hours and Wages. Child Labor. Income Taxes. Taxing Salaries of Federal Judges. Appointments to the Supreme Court. CHAPTER 26 The Nation at War The United States Enters the War. Conscription. Espionage and Sedition. The Search for Disloyalty. Unreasonable Searches and Seizures. Decisions in Lower Federal Courts. Supreme Court Decisions. State Espionage Legislation. Threat of Military Trials for Civilians. The Rights of Labor. Prohibition. CHAPTER 27 Organization and Control in Time of War Organization and Planning Begin. Presidential Control. The Lever Act. The Fuel Administration. The Control of Railroads. Control of Telephone and Telegraph Lines. Maritime Commerce and Enemy Trade. The Control of Finance. Emergency Housing. Labor. The Committee on Public Information. Co-ordination. The War Industries Board. Conclusion. CHAPTER 28 Between War and Peace Partisan Control of Congress. The President's Trips to Europe. The Senate and the Treaty-Making Power. Early Discussion of the Treaty and the League. Agitation for a Special Session of Congress. Drafting the Treaty. The Treaty Before the Senate. The Question of Mandates. The Restoration of Peace. Terminating Operation of War Statutes. War Officially Terminated. The United States in International Affairs. CHAPTER 29 Recent Amendments to the Constitution The Woman-Suffrage Amendment. The Prohibition Amendment. Ratification of the Twenty-First Amendment. The "Lame-Duck" Amendment. Amendments Proposed but not Ratified. CHAPTER 30 Modernising the Government The Theodore Roosevelt Investigations. The Taft Investigation. The Wilson Administration, The Budget and Accounting Act. Legislative Attempts at Executive Reorganization. Presidential Reorganization. The Humphrey Removal Case. The Roosevelt Reorganization Program. CHAPTER 31 The Supreme Court, from the First World War to the New Deal Supreme Court Personnel. The Progressive Attack on the Court. The Stone Appointment. The Hughes Appointment. The Parker Nomination. The Roberts Appointment. The Cardozo Appointment. Jurisdiction of the Supreme Court. The Supreme Court and Governmental Powers Powers of the President. Congressional Investigations. Control of Elections. CHAPTER 32 Personal Rights and Liberties Civil Liberties and Due Process of Law. Rights of Persons Suspected of Crime. The Rights of Aliens. The Rights of Labor. The Labor Injunction. CHAPTER 33 Judicial Limits of Regulatory Power Police Powers of the States. Businesses Affected with a Public Interest. Public-Utility Rate-Making. Police Power Ends and Martial Law. The Rights of Foreign Corporations. Federal Control Anti-Trust Laws. Work of the Federal Trade Commission. Regulation of Packers and Stockyards. Trading in Grain Futures. The Control of Railroads. The Control of Radio. The Protective Tariff. Control by Treaty. Control Through Grants-in-Aid. Problems of Taxation. Inheritance Taxes. Reciprocal Immunity from Taxation. State Taxation and Interstate Commerce. CHAPTER 34 Toward the New Deal Disillusionment. The Predicament of Agriculture. The Exportation of Farm Surpluses. The Federal Farm Board. Education for Production Control. Government in Relation to Electric Power. Muscle Shoals. Boulder Dam. The Trend of the Times. CHAPTER 35 The New Deal in Operation The Setting. The First Special Session. Emergency Efforts. The National Recovery Administration. The Agricultural Program. Labor. Social Security. Control of Commerce and Industry. The Concentration of Economic Power. CHAPTER 36 The Supreme Court in Transition Judicial Review of the New Deal. Judicial Disasters for the New Deal. The 1935-1936 Term. The Attempt at Judicial Reform. The Court Fight. Cases Decided During the Court Fight. CHAPTER 37 - Judicial Trends Personnel. The Control of Agriculture. Labor. The Control of Industry. Taxation. The Nation and the States. Civil Liberties. Checks upon Administration. Current Tendencies. CHAPTER 38 The Second World War The Foreign Policy of the New Deal. Neutrality Legislation. Presidential Leadership. Prewar Mobilization and Control. From Defense to War. Justice in Wartime. CHAPTER 39 The Constitution Today and Tomorrow BIBLIOGRAPHICAL NOTE INDEX
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