Page:Harvard Law Review Volume 9.djvu/353

325 • FEDERAL RESTRAINTS, 325 security of investors and for the good of the public, that some limi- tation upon the powers of the State legislatures guilty of such action should exist, and it will be interesting to inquire by what means and in what measure the railroads have escaped these threatened attacks, and to what provisions in the Federal Constitution or its Amendments their success is attributable. It will be found that the sole protection has resided either in the interstate commerce clause of the Constitution or the Fourteenth Amendment thereof relating to due process of law and the equal protection of the laws, and that the provision in the Constitution in regard to the impairment of a charter by a State legislature in the cases that so far have arisen has proved of no avail. It is a peculiar fact, which has often occurred, however, in the development of the history of the Con- stitution, and which has recently been commented upon by the Supreme Court in /;/ re Debs, 158 U. S. 564, 590, that the clauses of the Constitution the interpretation of which has been invoked, although in no sense having changed their meaning, may be sought to be applied to a state of facts which did not exist, and was not contemplated, when the clauses were originally adopted. For example, in the present instance, as has been said, when the in- terstate commerce clause which forms part of the original Consti- tution was drafted, there was not a railroad within the whole area of the United States ; and, so far as the Fourteenth Amendment to the Constitution, relating to due process of law and the equal protection of the laws, is concerned, that was adopted merely as a consequence of the war, and with a view solely to the status of the then recently freed slave. But, nevertheless, constitutional provisions are of universal, and not particular application, and, although unchangeable, operate frequently under different condi- tions and upon separate states of facts. To cite In re Debs, supruy at page 590 : — " Up to a recent date commerce, both interstate and international, was mainly by water, and it is not strange that both the legislation of Congress and the cases in the courts have been principally concerned therewith. The fact that in recent years interstate commerce has come mainly to be carried on by railroads and over artificial highways has in no manner nar- rowed the scope of the constitutional provision, or abridged the power of Congress over such commerce. On the contrary, the same fulness of con- trol exists in the one case as in the other, and the same power to remove obstructions from the one as from the other. " Constitutional provisions do not change, but their operation extends