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There is a feeling abroad in America that when a given measure becomes a part of the Constitution of the United States, its virtue must never henceforth be questioned. There is here a tendency towards a paper worship which involves a fundamental misconception of the true nature of constitutional law. The organic law of a people can never become fixed or static until the civic life of that people has ceased to develop, and become stagnant. This latter condition never exists, because every community is a living community and life always means motion and progress.

Shortly after the adoption of the Fourteenth Amendment the Radicals lost control of the Republican Party and of Congress. Sumner and Stevens were dead. The flames of passion were slowly reducing themselves to ashes. Public opinion had declared against any violent change in the form of the Government, and the country was beginning to breathe the breath of normal health.

We may now consider what phases of the negro race question have become related to the operation of the Fourteenth Amendment since its adoption in 1868. In so doing it is well to bear in mind two facts: First, that the negro race has increased in numbers during the last forty years from nearly five1 to about ten millions, and that the social complexity of the Afro-Teutonic situation has become intensified rather than diminished. Second, that litigation under the Fourteenth Amendment has steadily increased until within recent years it has engaged the attention of the Supreme Court of the United States more than has any other part of the Constitution, with the possible exception of the Interstate Commerce clause.

The Congressional programme for the scope of the Amendment came to a sudden end at the hands of the Supreme Court. Within the short period intervening its adoption and the first cases involving its interpretation, the weight of public opinion had already repudiated the governmental ideal of the Radicals. The destinies of the measure having now been left to the Supreme Court, that tribunal attempted to set forth in general terms its future sphere of activity. This was done not so much by way of positive definition as by protests against certain classes of litigation under the Amendment. This original programme of the Court has, by the logic of events, also failed.

The presence of a large number of persons of African descent within our bounds — different in origin, temperament, and physical appearance from the Teutonic stock among whom they dwell — has ever been a serious problem in the life of our republic. The organic law of the land has more than once felt the effect of this situation, a situation abnormal in a high degree. The influence of the negro on our constitutional development, though in a large measure negative, has been none the less potent. Constitutional Law in its very nature lies closest to the life of the people. It does not originate with the political doctrinaire. It has its roots deep in the social organism. It grows and changes as the people grow and change. And so in a society of mixed races, so widely different as Teuton and African, the organic law should be expected to express this peculiar condition of life which the forces of the past have bequeathed to us. But if under these circumstances it takes into account, not a condition of life, but a theory of life, we may expect to find the life of the people failing to conform to the constitutional ideal so expressed, no matter how noble and exalted such an ideal, in the abstract, may be.

The great problems facing the nation when the Fourteenth Amendment was being adopted were social and political rather than economic in the narrower sense of the word. The debates in Congress, the discussions in the various State legislatures, and the political campaigns before the people in 1866 and 1868 clearly reveal the motives underlying the making of that provision. It was a part of the great problem of reconstruction and had for its immediate purpose social and political readjustment in the South according to the theories of the party in power. It was a war amendment in that it attempted to conserve the results of the victory.