The Supreme court and the Constitution

Preface

This little volume is based upon an article which I published in the Political Science Quarterly for March, 1912. The original text has been considerably expanded by the addition of new illustrative materials. It seems hardly necessary to apologize for including such copious quotations from the writings of "the Fathers" on the point at issue. The best paraphrases are never so eloquent or convincing as the documents themselves.

I Mr. B. E. Shultz assisted me in collecting the jmaterials for the essay, and I wish to acknowledge my debt to him for this service. j C. A. B.

Columbia University, i

Contents

CHAPTER PAGE

I. Attacks upon Judicial Control i

II. The Constitutional Convention of 1787 and

CHAPTER I. Attacks upon Judicial Control

Did the framers of the federal Constitution intend that the Supreme Court should pass upon the constitutionality of acts of Congress? The emphatic negative recently given to this question by legal writers of respectable authority^ has put the sanction of some guild members on the popular notion that the nullification of statutes by the federal judiciary is warranted neither by the letter nor by the spirit of the supreme law of the land and is, therefore, rank usurpation. Thus the color of legality, so highly prized by revolutionaries as well as by apos-

* Cf. Chief Justice Walter Clark, of North Carolina, Address before the Law Department of the University of Pennsylvania, April 27, 1906; reprinted in Congressional Record, July 31, 191 1- Dean William Trickett, of the Dickinson Law School, "Judicial Dispensation from Congressional Statutes," American Law Review, vol. xli, pp. 65 et seq. L. B. Boudin, of the New York Bar, "Government by Judiciary," Political Science Quarterly, vol. xxvi (191 1), PP- 238 et seq. Gilbert Roe, of the New York Bar, "Our Judicial Oligarchy" (second article). La Follette's Weekly Magazine, vol. iii, no. 25, pp. 7-9> J^e 24, 191 1.

I ties of law and order, is given to a movement designed to strip the courts of their great political fimction. While the desirability of judicial control over legislation may be considered by practical men entirely apart from its historical origins, the attitude of those who drafted the Constitution surely cannot be regarded as a matter solely of antiquarian interest. Indeed, the eagerness with which ''the views of the Fathers" have been marshalled in support of the attack upon judicial control proves that they continue to exercise some moral weight, even if they are not binding upon the public conscience.

In an address before the Law Department of the University of Pennsylvania on April 27, 1906, the Honorable Walter Clark, Chief Justice of North Carolina, expressly declares that it was not the intention of the framers to confer upon the courts the power of passing upon the constitutionaHty of statutes. A proposition was made in the convention, he maintains, to confer this high power upon the judiciary and was defeated; the doctrine of judicial control had been enimciated in but a few cases before the meeting of the Convention and had been strongly disapproved by the people ; the action of the Supreme Court in assuming the power to declare an act of

Congress void was without a line in the Constitution to authorize it either expressly or by implication; and had the Convention intended to give the courts this power, it would not have left its exercise unreviewable and final.

To state the case in Mr. Justice Clark's own language:

A proposition was made in the convention — ^as we now know from Mr. Madison's Journal — that the judges should pass upon the constitutionality of acts of Congress. This was defeated June 5, receiving the vote of only two States. It was renewed no less then three times, i. e., on June 6, July 21, and finally again for the fourth time on August 15; and, though it had the powerful support of Mr. Madison and Mr. James Wilson, at no time did it receive the votes of more than three States. On this last occasion (August 15) Mr. Mercer thus summed up the thought of the convention: He disapproved of the doctrine that the judges, as expositors of the Constitution, should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be incontrovertible.

Prior to the convention, the courts of four States — New Jersey, Rhode Island, Virginia, and North Carolina — had expressed an opinion that they could hold acts of the legislature unconstitutional. This was a new doctrine never held before (nor in any other country since) and met with strong disapproval. In Rhode Island the movement to remove the offending judges was stopped only on a suggestion that they could be "dropped" by the legislature at the annual election, which was done. The decisions of these four State courts were recent and well known to the convention. Mr. Madison and Mr. Wilson favored the new doctrine of the paramount judiciary, doubtless deeming it a safe check upon legislation, since it was to be operated only by lawyers. They attempted to get it into the Federal Constitution in its least objectionable shape — the judicial veto before final passage of an act, which would thus save time and besides would enable the legislature to avoid the objections raised. But even in this diluted form, and though four times presented by these two very able and influential members, this suggestion of a judicial veto at no time received the votes of more than onefourth of the States.

The subsequent action of the Supreme Court in assirniing the power to declare acts of Congress imconstitutional was without a line in the Constitution to authorize it, either expressly or by impHcation. The Constitution recited carefully and fully the matters over which the courts should have jurisdiction, and there is nothing, and after the above vote four times refusing jiuisdiction, there could be nothing, indicating any power to declare an act of Congress unconstitutional and void.

Had the convention given such powder to the courts, it certainly would not have left its exercise final and imreviewable. It gave Congress power to override the veto of the President, though that veto was expressly given, thus showing that in the last analysis the will of the people, speaking through the legislative power, should govern. Had the convention supposed the courts would assimie such power, it would certainly have given Congress some review over judicial action and certainly would not have placed the judges irretrievably beyond "the consent of the governed" and regardless of the popular will by making them appointive, and further clothing them with the undemocratic prerogative of tenure for life.

Such power does not exist in any other coimtry, and never has. It is therefore not essential to our security. It is not conferred by the Constitution; but, on the contrary, the convention, as we have seen, after the fullest debate, four times, on four several days, refused by a decisive vote to confer such power. The judges not only have never exercised such power in England, where there is no written constitution, but they do not exercise it in France, Germany, Austria, Denmark, or in any other country which, like them, has a written constitution.

A more complete denial of popular control of this Government could not have been conceived than the placing of such unreviewable power in the hands of men not elected by the people and holding office for life. The legal-tender act, the financial policy of the Government, was invalidated by one court and then validated by another, after a change in its personnel. Then the income tax, which had been held constitutional by the court for a hundred years, was again so held, and then by a sudden change of vote by one judge it was held unconstitutional, nullified, and set at naught, though it had passed by a nearly unanimous vote both Houses of Congress, containing many lawyers who were the equals, if not the superiors, of the vacillating judge, and had been approved by the President 1 and voiced the will of the people. This was all negatived (without any warrant in the Constitution for the court to set aside an act of Congress) by vote of one judge; and thus $100,000,000 and more of annual taxation was transferred from those most able to bear it * Cleveland did not, in fact, sign the bill.

and placed upon the backs of those who already carried more than their fair share of the burdens of government. Under an untrue assumption of authority given by 39 dead men one man nullified the action of Congress and the President and the will of 75,000,000 of living people, and in the 13 years since has taxed the property and labor of the country, by his sole vote, $1,300,000,000, which Congress .... had decreed should be paid out of the excessive incomes of the rich.

In England one-third of the revenue is derived from the superfluities of the very wealthy by the levy of a graduated income tax and a graduated inheritance tax, increasing the per cent, with the size of the income. The same system is in force in all other civilized countries. In not one of them would the hereditary monarch venture to veto or declare null such a tax. In this country alone the people, speaking through their Congress and with the approval of their Executive, can not put in force a single measure of any nature whatever with assurance that it shall meet with the approval of the courts ; and its failure to receive such approval is fatal, for, unlike the veto of the Executive, the unanimous vote of Congress (and the income tax came near receiving such vote) can not prevail against it. Of what avail shall it be if Congress shall conform to the popular demand and enact a "rate-regulation" bill and the President shall approve it if five lawyers, holding office for life and not elected by the people, shall see fit to destroy it, as they did the income-tax law? Is such a government a reasonable one, and can it be longer tolerated after 120 years of experience have demonstrated the capacity of the people for self-government? If five lawyers can negative the will of 100,000,000 of men, then the art of government is reduced to the selection of those five lawyers.

A power without limit, except in the shifting views of the court, Hes in the construction placed upon the fourteenth amendment, which, passed, as everyone knows, solely to prevent discrimination against the colored race, has been construed by the court to confer upon it jurisdiction to hold any provision of any statute whatever "not due process of law." This draws the whole body of the reserved rights of the States into the maelstrom of the Federal courts, subject only to such forbearance as the Federal Supreme Court of the day, or in any particular case, may see fit to exercise. The Hmits between State and Federal jurisdiction depend upon the views of five men at any given time; and we have a government of men, and not a government of laws, prescribed beforehand.

At first the court generously exempted from its veto the police power of the several States. But since then it has proceeded to set aside an act of the Legislature of New York restricting excessive hours of labor, which act had been sustained by the highest court in that great State. Thus labor can obtain no benefit from the growing humanity of the age, expressed by the popular will in any State if such statute does not meet the views of five elderly lawyers, selected by influences naturally antagonistic to the laboring classes and whose training and daily associations certainly can not incline them in favor of restrictions upon the power of the employer.

The preservation of the autonomy of the several States and of local self-government is essential to the maintenance of our liberties, which would expire in the grasp of a consolidated despotism. Nothing can save us from this centripetal force but the speedy repeal of the fourteenth amendment or a recasting of its language in terms that no future covirt can misinterpret.

The vast political power now asserted and exercised by the coiirt to set aside public policies, after their full determination by Congress, can not safely be left in the hands of any body of men, without supervision or control by any other authority whatever. If the President errs, his mandate expires in four years, and his party as well as himself is accoimtable to the people at the ballot box for his stewardship. If Members of Congress err, they, too, must account to their constituents. But the Federal judiciary hold for life and, though popular sentiment should change the entire personnel of the other two great departments of government, a whole generation must pass away before the people could get control of the judiciary, which possesses an irresponsible and unrestricted veto upon the action of the other departments — ^irresponsible because impeachment has become impossible, and if it were possible it could not be invoked as to erroneous decisions tmless corruption were shown.

The control of the policy of government is thus not in the hands of the people, but in the power of a small body of men not chosen by the people, and holding for life. In many cases which might be mentioned, had the court been elective, men not biased in favor of colossal wealth would have filled more seats upon the bench, and if there had been such decision as in the income-tax case, long ere this, under the tenure of a term of years, new incvmibents would have been chosen, who, returning to the former line of decisions, would have upheld the right of Congress to control the financial policy of the Government in accordance with the will of the people of this day and age, and not according to the shifting views which the coiut has imputed to language used by the majority of the 55 men who met in Philadelphia in 1787. Such methods of controlling the policy of a government are no whit more tolerable than the conduct of the augurs of old who gave the permission for peace or war, for battle or other public movements, by declaring from the flight of birds, the inspection of the entrails of fowls, or other equally wise devices, that the omens were lucky or unlucky — the rules of such divination being in their own breasts and hence their decisions beyond remedy.

It may be that this power in the courts, however illegally grasped originally, has been too long acquiesced in to be now questioned. If so, the only remedy which can be apphed is to make the judges elective, and for a term of years, for no people can permit its will to be denied, and its destinies shaped, by men it did not choose, and over whose conduct it has no control, by reason of its having no power to change them and select other agents at the close of a fixed term.

Dean William Trickett, of the Dickinson Law School, in an eloquent and almost vehement article in the American Law Review contends that "if the courts possess the power to declare acts of Congress void, they owe it, not to the intention of the makers of the Constitution, but to what Chief Justice Gibson has termed 'necessity,' which seems to be another name for their own desire." The author uses the term ''makers" here to mean the members of the conventions of the states who ratified the instrument framed at Philadelphia; and of course his entire argument rests upon silence, for he does not contend that the conventions reviewed the proposition and decided against it. Perhaps it never occurred to him to inquire what sort of a federal Constitution we should have if the clearly ascertained intention of the "makers" were necessary to the decision of any single point ! On the intention of the framers of the Constitution — which from the legal standpoint is, of course, another matter, Dean Trickett is scarcely less decided. After bringing under review the few cases in which state coiirts had held invalid state statutes previous to the convention of 1787, he continues:

The convention was composed of fifty-five members. Of these thirty-nine signed the Constitution. There is nothing better than surmise that ten of these gentlemen knew an3rthing of the decisions. Of those who knew, we have no evidence that more than five or six regarded the annulment of statutes a judicial function. We know that Spaight and three or four others^ did not regard it as such. Shall we assume that the members of the Convention whose sentiment is unknown were divided in the same ratio? It would be sheer imbecility to infer from the preponderance of the numbers who have spoken for, over those who have spoken against, a measure or view, when four times as many as both of these classes of speakers have remained silent, that a majority of the members shared the view of the major part of the speakers.

^ He does not name them or cite authorities.

ATTACKS UPON JUDICIAL CONTROL ii

Of cotirse Dean Trickett does not categorically deny that the majority of the Convention regarded the annulment of statutes as a normal judicial function; but he so minimizes the actual evidence in the matter as to prejudice his readers strongly against any such view. A more recent critic of the judiciary, Mr. L. B. Boudin, speaks with less reserve than Dean Trickett on the point :

There were undoubtedly some men in the Convention who favored the investing of the federal judiciary with general revisory powers over legislation; but all attempts to make the judiciary part of the legislative power of the federal government failed signally and had to be abandoned by their sponsors. The provisions of the Constitution as they now stand contain no reference whatever to any such powers, either expressly or by obvious implication. And there is ample historical proof that — ^whatever the hopes of some, from the complete silence of the document, as to possible future development — the great majority of the framers never suspected that a general power of the judiciary to control legislation could be interpreted into the new Constitution. They evidently assumed that such extraordinary power could not be exercised unless expressly granted.

The "ample historical proof" which Mr. Boudin mentions is not cited by him, and if he has made the researches himself, he gives no hint as to his methods, soiurces, and authorities.

Mr. Gilbert Roe, member of the New York Bar, in an article in La Follette's Weekly Magazine^ claims that it was not the intention of the framers to vest judicial control over legislation in the Supreme Court. He says;

It can not well be contended that the framers of the Constitution assumed that the courts would exercise such supervisory power over legislation as they now lay claim to. The debates in the Convention negative any such idea, as does the fact that the attempt to exercise such power by the state courts over state statutes had been sharply rebuked by the people.

In support of this contention Mr. Roe cited the efforts made in the convention to associate the judges with the executive in the exercise of the revisionary powers, and quotes the remarks of Mercer and Dickinson presented below. How fragmentary and inconclusive this evidence really is will be shown later.

The arguments advanced by these critics to show that the framers of the Constitution did not intend to grant to the federal judiciary any control over federal legislation may be summarized as follows. Not only is the power in question not expressly granted, but it could not have seemed to the framers to be granted by implication. The power to refuse application to an unconstitutional law was |iot generally regarded as proper to the judiciary. In a few cases only had state courts attempted to exercise such a power, and these few attempts had been sharply rebuked by the people. Of the members of the Convention of 1787 not more than five or six are known to have regarded this power as a part of the general judicial power; and Spaight and three or four others are known to have held the contrary opinion. It cannot be assumed that the other forty-odd members of the Convention were divided on the question in the same proportion. If any conclusion is to be drawn from their silence, it is rather that they did not believe that any such unprecedented judicial power could be read into the Constitution. This conclusion is fortified by the fact that a proposition to confer upon the federal judges revisory power over federal legislation was four times made in the Convention and defeated.

A careful examination of the articles cited fails to reveal that the writers have made any detailed analysis of the sources from which we derive our knowledge of the proceedings of the Convention and of the views held by its members. They certainly do not produce sufficient evidence to support their sweeping generalizations. In the interest of historical accuracy, therefore, it is well to inquire whether the evidence available on the point is sufficient to convict the Supreme Court of usurping an authority which the framers of the Constitution did not conceive to be within the judicial province. If the opinions of the majority of the Convention cannot be definitely ascertained, any categorical answer to the question proposed must rest upon the ''argument of silence," which, as Fustel de Coulanges warned the Germans long ago, is a dangerous argument.

CHAPTER II. The Constitutional Convention of 1787 and Judicial Control

No proposition to confer directly upon the judiciary the power of passing upon the constitutionality of acts of Congress was submitted to the Convention. On this point a statement made in Chief Justice Clark's address, cited above, is misleading. The proposition to which he refers, and which formed a part of the Randolph plan, was to associate a certain number of the judges with the executive in the exercise of a revisionary power over laws passed by Congress. This is obviously a different proposition. Indeed, some members of the Convention who favored judicial control opposed the creation of such a council of revision. The question of judicial control, accordingly, did not come squarely before the Convention, in such form that a vote could be taken on it.

How are we to know what was the intention of l6 THE SUPREME COURT AND THE CONSTITUTION

the framers of the Constitution in this matter? The only method is to make an exhaustive search in the documents of the Convention and in the writings, speeches, papers and recorded activities of its members. It is obviously impossible to assert that any such inquiry is complete, for new material, printed or in manuscript, may be produced at any moment. This essay therefore makes no claim to finality. It is designed to throw light on the subject and to suggest ways in which more light may be obtained.

There were in all fifty-five members of the Convention who were present at some of its meetings. Of these at least one-third took little or no part in the proceedings or were of little weight or were extensively absent. Among these may be included: Blount, Brearley, Broom, Clymer, Fitzsimons, Gilman, W. C. Houston, William Houstoun, Ingersoll, Lansing, Livingston, McClurg, Alexander Martin, Mifflin, Pierce and Yates. It is of course difficult to estimate the influence of the several members of the Convention, and between the extremes there are a few regarding whom there may reasonably be a difference of opinion. The preceding list is doubtless open to criticism, but it may be safely asserted

/ \3 that a large majority of the men included in it were without any considerable influence in the framing of the Constitution.

Of the remaining members there were (say) twenty-five whose character, ability, diligence and regularity of attendance, separately or in combination, made them the dominant element in the Convention. These men were:

Blair Franklin King Morris, R, Rutledge

Butler Gerry Madison Paterson Sherman

Dayton Gorham Martin, L. Pinckney, Charles Washington

Dickinson Hamilton Mason Pinckney, C. C. Williamson

Ellsworth Johnson Morris, G. Randolph Wilson

This list, like the one given above, is tentative; and it is fair to say that, among those whose judgment is entitled to respect, there is no little difference of opinion about the weight of some of the men here enumerated. It can not be doubted, however, that the list includes the decided majority of the men who were most influential in giving the Constitution its form and its spirit. Among these men were the leaders, of whose words and activities we have the fullest records.

Of these men, the seventeen whose names are italicized declared, directly or indirectly, for judicial control. Without intending to imply that the less influential members were divided on the question in the same ratio as these twenty-five, or that due respect should not be paid to the principle of simple majority rule, it is illumdnating to discover how many of this dominant group are foimd on record in favor of the proposition that the judiciary would in the natural course of things pass upon the constitutionality of acts of Congress. The evidence of each man's attitude is here submitted, the names being arranged, as above, in their alphabetical order.

John Blair, of Virginia, was a member of the Virginia court of appeals which decided the case of Commonwealth v. Caton,^ in 1782, and he agreed with the rest of the judges ''that the court had power to declare any resolution or act of the legislature, or of either branch of it, to be imconstitutional and void." 2 Ten years later he was one of the three judges of the federal circuit court for the district of Pennsylvania who claimed that they could not perform certain duties imposed upon them by a law

^ Thayer, Cases in Constitutional Law, vol. i, p. 55.

2 That the decision coiild have been reached without invoking this power, as Mr. Boudin argues, loc. cit., p. 245, note i, does not affect the value of the decision as evidence of Blair's belief in the existence of the power.

i k of Congress, because the duties were not judicial in nature and because under the law their acts would be subject to legislative or executive control. These judges — Blair, Wilson ^ and Peters — joined in a respectful letter of protest to President Washington, April 18, 1792, in which they declared that they held it to be their duty to disregard the directions of Congress rather than to act contrary to a constitutional principle.^ It may also be noted that, as a member of the federal Senate, Blair supported the Judiciary Act of 1789, which accorded to the Supreme Court the power to review and reverse or affirm the decisions of state cotirts denying the validity of federal statutes.^

John Dickinson^ of Delaware, is usually placed among the members of the Convention who did not recognize the power of the courts to pass upon the constitutionality of statutes; for in the debate on August 15, just after Mercer^ declared against judicial control, Dickinson said that "he was strongly impressed with the remark of Mr. Mercer as to the

* Wilson, as we shall see later, had taken a strong stand, both in the constituent Convention and in the ratifying Pennsylvania convention, in favor of judicial control of legislation. Cf. infra, pp. 14, 26. 2 Hayburn's Case, 2 Dallas, 409. ' Cf. infra, p. 44.

* Cf, infra, p. 52.

power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to substitute." ^ Later, however, he accepted the principle of judicial control, either because he thought it sound or because he cotild find no satisfactory substitute. In one of his "Fabius" letters, written in advocacy of the Constitution in 1788, he says:

In the senate the sovereignties of the several states will be equally represented; in the house of representatives the people of the whole union will be equally represented ; and in the president and the federal independent judges, so much concerned in the execution of the laws and in the determination of their constitutionality, the sovereignties of the several states and the people of the whole union may be considered as conjointly represented.^

Whatever his personal preference may have been, he evidently understood that the new instrument implicitly empowered the federal judiciary to determine the constitutionality of laws; and he presents this implication to the public as a commendable feature of the Constitution.

Oliver Ellsworth, of Connecticut, held that the federal judiciary, in the discharge of its normal fimc-

1 Farrand, Records of the Federal Convention, vol. ii, p. 299.

' Ford, Pamphlets on the Constitution of the United States, p. 184.

tions, would declare acts of Congress contrary to the federal Constitution null and void. In the Connecticut convention, called to ratify the federal Constitution, he was careful to explain this clearly to the assembled delegates.^ Later, he was chairman of the Senate committee which prepared the Judiciary Act of 1789 and he took a leading part in the drafting and passage of that measure. ^

Elhridge Gerry, of Massachusetts. When, on June 4, the proposition relative to a council of revision was taken into consideration by the Convention, Gerry expressed doubts

whether the Judiciary ought to form a part of it, as they will have a stifficient check against encroachments on their own department by their exposition of the laws, which involved a power of deciding on their constitutionality. In some States the Judges had actually set aside laws as being against the Constitution. This was done, too, with general approbation. It was quite foreign from the nature of the office to make them judges of the policy of public measures.^