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THE GREEN BAG

CONSTITUTIONAL LAW. " The National Constitution," by Joseph Culbertson Clayton. American Lawyer (V. xv, p. 19). CONSTITUTIONAL LAW. " The Amend ment of State Constitutions," by James Wilford GarneT, American Political Science Review (V. i, p. 248). CONSTITUTIONAL LAW (Citizenship of Corporation). " A Legal Fiction with Its Wings Clipped," by Simeon E. Baldwin, in the January-February American Law Review (V. xli, p. 38), is a discussion of the fiction by which the United States Supreme Court de cided a corporation to be a citizen of the state to which it owed its existence, not because it was " an artificial person of its creation, having no right to exercise its franchise elsewhere; not because its managing officers were exercising its franchises there; not because all its share holders were in fact citizens of the state; but because the court had concluded to make the false assumption that they were, and to hear no proof to the contrary. . . . "This fiction took definite, and, as it was supposed, final shape in 1862, at the hand of Chief Justice Taney, in the Ohio & Mississippi Railroad case. But as time went on, and cor porations of an interstate character and com position became numerous and powerful, new difficulties became apparent in working under it. The Supreme Court, in 1896, apologetically described its creation as a step which ' went to the very verge of judicial power.' Nine years later, in Doctor v. Harrington, they marked the limits of the verge, but in such a way as practically to overrule many of their earlier decisions. "New Jersey shareholders in a New York corporation brought, by reason of their inter est as such, a bill in equity against another New York corporation, to which they made the former corporation a defendant, on an apparently good cause of action in the Circuit Court. The cause was dismissed because of the conclusive presumption that all the share holders of each company were citizens of New York. . . . On an appeal to the Supreme Court this decree was reversed. The reason, said the brief opinion by Justice McKenna, for adopting the presumption, was to establish the citizenship of the corporation for the purpose

of jurisdiction in the Federal Courts. ' This, then, was its purpose, and to stretch it beyond this is to stretch it to wrong. It is one thing to give to a corporation a status and another thing to take from a citizen the right given him by the Constitution of the United States.'" A new generation of judges had twisted an old theory into new shape, thinks Judge Bald win. " The real error of the Supreme Court . . . lay in Marshall's rejecting the first claim set up in the Deveaux case. A corporation should have been held, by virtue of its own personality, to be a citizen of the state which created it, within the meaning of Article III of the Constitution, notwithstanding it could not be deemed a citizen within the meaning of Article IV. The purposes of the two provisions were obviously so different, that the word citizen might fairly be taken to have in each a different sense. "To treat an artificial person thus as a citizen might have been itself indeed the asser tion of a legal fiction, bu,t it would have been a fiction far simpler and more manageable than one created by a legal presumption of a state of facts which, in nine cases out of ten, every body knew did not and in the nature of things could not exist." CONSTITUTIONAL LAW (Commerce Clause). Judge Walter C. Noyes' article on " The Devel opment of the Commerce Clause of the Federal Constitution," in the February Yale Law Journal (V. xvi, p. 253), is an illuminating historical paper. He sees in the commerce clause and its increasing importance the most striking illustration of the principle of consti tutional evolution through interpretation. "The series of decisions marking that develop ment mark, also," he says, " American com mercial progress, and furnish the most enduring monuments of the greatness of the tribunal which rendered them." After tracing the development he prophesies that " the end is not yet. The tendency in this country toward a centralization of power is increasing. The field of the national govern ment is constantly widening. The nation is dealing more and more with problems formerly thought to belong exclusively to the states. A unity is growing out of a union. And the primary source of all this nationalizing power is the commerce clause of the Constitution."