Section. 1. All legislative Powers herein granted shall be vested in a

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82d Congress } SENATE { Document

_2d Session_ } { No. 170

THE CONSTITUTION OF THE UNITED STATES OF AMERICA

ANALYSIS AND INTERPRETATION

Annotations of Cases Decided by the Supreme Court of the United States

to June 30, 1952

Prepared by the Legislative Reference Service, Library of Congress

EDWARD S. CORWIN, Editor

[Illustration]

United States Government Printing Office Washington: 1953

For sale by the Superintendent of Documents, U.S. Government Printing

Office

Washington 25 D.C.--Price $6.25

SENATE JOINT RESOLUTION 69

JOINT RESOLUTION To prepare a revised edition of the Annotated

Constitution of the United States of America as published in 1938 as

Senate Document 232 of the Seventy-fourth Congress.

Whereas the Annotated Constitution of the United States of America

published in 1938 as Senate Document 232, Seventy-fourth Congress, has

served a very useful purpose by supplying essential information in one

volume and at a very reasonable price; and

Whereas Senate Document 232 is no longer available at the Government

Printing Office; and

Whereas the reprinting of this document without annotations for the last

ten years is now considered appropriate: Now, therefore, be it

_Resolved by the Senate and House of Representatives of the United

States of America in Congress assembled_, That the Librarian of Congress

is hereby authorized and directed to have the Annotated Constitution of

the United States of America, published in 1938, revised and extended to

include annotations of decisions of the Supreme Court prior to January

1, 1948, construing the several provisions of the Constitution

correlated under each separate provision, and to have the said revised

document printed at the Government Printing Office. Three thousand

copies shall be printed, of which two thousand two hundred copies shall

be for the use of the House of Representatives and eight hundred copies

for the use of the Senate.

Sec. 2. There is hereby authorized to be appropriated for

carrying out the provisions of this Act, with respect to the preparation

but not including printing, the sum of $35,000 to remain available until

expended.

Approved June 17, 1947.

PREFACE

By Honorable Alexander Wiley

_Chairman, Senate Foreign Relations Committee_

To the Members and Committees of the Congress, the Constitution is more

than a revered abstraction; it is an everyday companion and counsellor.

Into it, the Founding Fathers breathed the spirit of life; through every

subsequent generation, that spirit has remained vital.

In more than a century and a half of cataclysmic events, the

Constitution has successfully withstood test after test. No

crisis--foreign or domestic--has impaired its vitality. The system of

checks and balances which it sets up has enabled the growing nation to

adapt itself to every need and at the same time to checkrein every bid

for arbitrary power.

And meantime America itself has evolved dynamically and dramatically.

The humble 13 colonies, carved out of the wilderness in the 18th

Century, emerged in the 20th Century as leader of

earth--industrial--military--political--economic--psychological. Yet the

broad outline of the Supreme Law remains today fundamentally intact.

It is small wonder that W.E. Gladstone described the Constitution as

"the most wonderful work ever struck off at a given time by the brain

and purpose of man." He knew, as should we, that the Constitution's

words, its phrases, clauses, sentences, paragraphs, and sections still

possess a miraculous quality--a mingled flexibility and strength which

permits its adaptation to the needs of the hour without sacrifice of its

essential character as the basic framework of freedom.

Congress has long recognized how necessary it is to have a handy working

guide to this superb charter. It has sought a map, so to speak, of the

great historical landmarks of Constitutional jurisprudence--landmarks

which mark the oft-times epic battles of clashing legal interpretations.

A first step was taken toward meeting this need by publication of Senate

Document 12, 63d Congress in 1913. Ten years later, in 1923 another

volume was issued, Senate Document 96, 67th Congress, and it was

followed in turn by Senate Document 154 of the 68th Congress.

In 1936, Congress authorized a further revision, this time by the

Legislative Reference Service. Mr. Wilfred C. Gilbert, now the Assistant

Director of the Service, was the editor of this volume which became

Senate Document 232, 74th Congress, and he has given counsel throughout

the development of the present edition of this volume.

After another decade of significant and far-reaching judicial

interpretation, the Senate Judiciary Committee reported out Senate Joint

Resolution 69 of the 80th Congress calling upon the Librarian of

Congress for the preparation of the new work. However, because of the

increase in responsibilities of the Legislative Reference Service, it

was no longer feasible for it to undertake this additional burden with

its regular staff. The Director of the Service, Dr. Ernest S. Griffith,

suggested therefore that Dr. Edward S. Corwin be engaged to head the

project with a collaborating staff to be furnished by the Legislative

Reference Service.

In my capacity at the time, as Chairman of the Senate Judiciary

Committee, I was delighted to give my approval to this arrangement, for

I recognized our particular good fortune in obtaining the services of an

acknowledged authority for this highly significant and delicate

enterprise.

I should like now to express our thanks and appreciation to Dr. Corwin

and to his collaborators from the Service, Dr. Norman J. Small,

Assistant Editor, Miss Mary Louise Ramsey, and Dr. Robert J. Harris, for

all their prodigious and skilled labors.

Moreover, for their considerable efforts in connection with the detailed

legislative and printing arrangements for the publication of this

volume, I should like to express appreciation to Mr. Darrell St. Claire,

Staff Member for the Senate Rules Committee, as well as Chief Clerk for

the Joint Committee on the Library of Congress; and Mr. Julius N. Cahn,

previously Executive Assistant to me when I was Chairman of the

Judiciary Committee and now Counsel to the Senate Foreign Relations

Committee.

Initiated in the Republican 80th Congress, the project was undertaken

With funds supplied by the succeeding Democratic 81st Congress, while

the Democratic 82d Congress extended its coverage to include Supreme

Court decisions through June 30, 1952. The document thus represents

Congressional nonpartisan activity at its best, as should ever be the

case in our fidelity to this great charter.

In the present volume, in addition to the annotations indicating the

current state of interpretation, Dr. Corwin has undertaken to supply an

historical background to the several lines of reasoning. It is our hope

and expectation that this introduction will prove of immense benefit to

users in understanding the trends of judicial constitutional

interpretation.

It is our further hope that this edition as a whole may serve a still

larger purpose--strengthening our understanding of and loyalty to the

principles of this republic.

In that way, the Constitution will remain the blueprint for freedom. It

will continue as an inspiration for us of this blessed land, and for men

and women everywhere; for they look to these shores as the lighthouse of

freedom, in a world where the darkness of despotism hangs so heavily.

_May 30, 1953._

[Illustration: Alexander Wiley signature]

PREFACE

For many years the Congress has felt the need for a handy, concise guide

to the interpretation of the Constitution. An edition of the

Constitution issued in 1913 as Senate Document 12, 63d Congress, took a

step in this direction by supplying under each clause, a citation of

Supreme Court decisions thereunder. This was obviously of limited

usefulness, leaving the reader, as it did, to an examination of cases

for any specific information. In 1921 the matter received further

consideration. Senate Resolution 151 authorized preparation of a volume

to contain the Constitution and its amendments, to January 1, 1923 "with

citations to the cases of the Supreme Court of the United States

construing its several provisions." This was issued as Senate Document

96 of the 67th Congress, and was followed the next year by a similar

volume annotating the cases through the October 1923 Term of the Supreme

Court. (Senate Document 154, 68th Congress.) Both of these volumes went

somewhat beyond the mere enumeration of cases, carrying under the

particular provisions of the Constitution a brief statement of the point

involved in the principal cases cited.

Thirteen years of Constitutional developments led Congress in 1936 to

authorize a revision of the 1924 volume, and under authority of Senate

Concurrent Resolution 35 introduced by Senator Ashurst, Chairman of the

Judiciary Committee, such a revision was prepared in the Legislative

Reference Service and issued as Senate Document 232, 74th Congress.

This volume was, like its predecessors, dedicated to the need felt by

Members for a convenient ready-reference manual. However, so extensive

and important had been the judicial interpretation of the Constitution

in the interim that a very much larger volume was the result.

After another decade, in the course of which many of the earlier

interpretations were reviewed and modified, the Senate again moved for a

revision of the Annotations. Senate Joint Resolution 69 introduced by

the then Chairman of the Judiciary Committee, Senator Alexander Wiley,

again called upon the Library of Congress to undertake the work. The

confidence thus implied was most thoroughly appreciated. To meet his

responsibilities, the Librarian called upon Dr. Edward S. Corwin to head

the project. The collaborating staff, supplied by the Legislative

Reference Service, included Dr. Norman J. Small as assistant editor,

Miss Mary Louise Ramsey, and Robert J. Harris.

This time, more than ever, the compilers faced a difficult task in

balancing the prime requirement of a thorough and adequate annotation

against the very practical desire to keep the results within convenient

compass.

Work on the project was delayed until funds were made available. In

consequence the annotations have been extended to a somewhat later date,

covering decisions of the Supreme Court through June 30, 1952.

Ernest S. Griffith,

_Director, Legislative Reference Service._

EDITOR'S FOREWORD

The purpose of this volume is twofold; first, to set forth so far as

feasible the currently operative meaning of all provisions of the

Constitution of the United States; second, to trace in the case of the

most important provisions the course of decision and practice whereby

their meaning was arrived at by the Constitution's official

interpreters. Naturally, the most important source of material relied

upon comprises relevant decisions of the Supreme Court; but acts of

Congress and Executive orders and regulations have also been frequently

put under requisition. Likewise, proceedings of the Convention which

framed the Constitution have been drawn upon at times, as have the views

of dissenting Justices and occasionally of writers, when it was thought

that they would aid understanding.

That the Constitution has possessed capacity for growth in notable

measure is evidenced by the simple fact of its survival and daily

functioning in an environment so vastly different from that in which it

was ordained and established by the American people. Nor has this

capacity resided to any great extent in the provision which the

Constitution makes for its own amendment. Far more has it resided in the

power of judicial review exercised by the Supreme Court, the product of

which, and hence the record of the Court's achievement in adapting the

Constitution to changing conditions, is our national Constitutional Law.

Thus is explained the attention that has been given in some of these

pages to the development of certain of the broader doctrines which have

influenced the Court in its determination of constitutional issues,

especially its conception of the nature of the Federal System and of the

proper role of governmental power in relation to private rights. On both

these great subjects the Court's thinking has altered at times--on a few

occasions to such an extent as to transcend Tennyson's idea of the law

"broadening from precedent to precedent" and to amount to something

strongly resembling a juridical revolution, bloodless but not wordless.

The first volume of Reports which issued from the Court following

Marshall's death--11 Peters (1837)--signalizes such a revolution, that

is to say, a recasting of fundamental concepts; so does 100 years later,

Volume 301 of the United States Reports, in which the National Labor

Relations Act [The "Wagner Act"] and the Social Security Act of 1935

were sustained. Another considerable revolution was marked by the

Court's acceptance in 1925 of the theory that the word "liberty" in the

Fourteenth Amendment rendered the restrictions of the First Amendment

upon Congress available also against the States.

In the preparation of this volume constant use has been made of "The

Constitution of the United States of America Annotated," which was

brought out under the editorship of Mr. W.C. Gilbert in 1938. Its

copious listing of cases has been especially valuable. Its admirable

Tables of Contents and Index have furnished a model for those of the

present volume. If this model has been approximated the contents of this

volume ought to be readily accessible despite its size. The coverage of

the volume ends with the cases decided June, 1952.

A personal word or two must be added. The Editor was invited to

undertake this project by Dr. Ernest S. Griffith, Director of the

Legislative Reference Service of the Library of Congress, and his

constant interest in the progress of our labors has been a tremendous

source of encouragement. To his able collaborators the Editor will not

attempt to express his appreciation--they share with him the credit for

such merits as the work possesses and responsibility for its short

comings. And I am sure that they join me in thanking Miss Evelyn K.

Mayhugh for her skill and devotion in aiding us at every step in our

common task.

Edward S. Corwin.

INTRODUCTION

It is my purpose in this Introduction to the _Constitution of the United

States, Annotated_ to sketch rapidly certain outstanding phases of the

Supreme Court's interpretation of the Constitution for the illustration

they may afford of the interests, ideas, and contingencies which have

from time to time influenced the Court in this still supremely important

area of its powers and of the comparable factors which give direction to

its work in the same field at the present time.

As employed in this country, Constitutional Law signifies a body of

rules resulting from the interpretation by a high court of a written

constitutional instrument in the course of disposing of cases in which

the validity, in relation to the constitutional instrument, of some act

of governmental power, State or national, has been challenged. This

function, conveniently labelled "Judicial Review," involves the power

and duty on the part of the Court of pronouncing void any such act which

does not square with its own reading of the constitutional instrument.

Theoretically, therefore, it is a purely juristic product, and as such

does not alter the meaning. To those who hold this theory, the Court

does not elaborate the instrument, as legislative power might; it

elucidates it, bringing forth into the light of day, as it were, what

was in the instrument from the first.

In the case of judicial review as exercised by the Supreme Court of the

United States in relation to the national Constitution, its preservative

character has been at times a theme of enthusiastic encomium, as in the

following passage from a speech by the late Chief Justice White, made

shortly before he ascended the Bench:

... The glory and ornament of our system which distinguishes

it from every other government on the face of the earth is

that there is a great and mighty power hovering over the

Constitution of the land to which has been delegated the awful

responsibility of restraining all the coordinate departments

of government within the walls of the governmental fabric

which our fathers built for our protection and immunity.[1]

At other times the subject has been dealt with less enthusiastically,

even skeptically.

One obstacle that the theory encountered very early was the refusal of

certain Presidents to regard the Constitution as primarily a source of

rules for judicial decision. It was rather, they urged, a broadly

discretionary mandate to themselves and to Congress. And pursuing the

logic of this position, they contended that while the Court was

undoubtedly entitled to read the Constitution independently for the

purpose of deciding cases, this very purpose automatically limited the

authoritativeness of its readings; and that within their respective

jurisdictions President and Congress enjoyed the same correlative

independence as the Court did within its jurisdiction. This was, in

effect, the position earlier of Jefferson and Jackson, later of Lincoln,

and in recent times that of the two Roosevelts.

Another obstacle has been of the Court's own making. Whether because of

the difficulty of amending the Constitution or for cautionary reasons,

the Court took the position, as early as 1851, that it would reverse

previous decisions on constitutional issues when convinced they were

erroneous.[2] An outstanding instance of this nature was the decision in

the Legal Tender cases, in 1871, reversing the decision which had been

rendered in Hepburn _v._ Griswold fifteen months earlier;[3] and no less

shattering to the prestige of _stare decisis_ in the constitutional

field was the Income Tax decision of 1895,[4] in which the Court

accepted Mr. Joseph Choate's invitation to "correct a century of error".

The "constitutional revolution" of 1937 produced numerous reversals of

earlier precedents on the ground of "error", some of them, the late Mr.

James M. Beck complained, without "the obsequious respect of a funeral

oration".[5] In 1944 Justice Reed cited fourteen cases decided between

March 27, 1937 and June 14, 1943 in which one or more prior

constitutional decisions were overturned.[6] On the same occasion

Justice Roberts expressed the opinion that adjudications of the Court

were rapidly gravitating "into the same class as a restricted railroad

ticket, good for this day and train only".[7]

Years ago the eminent historian of the Supreme Court, Mr. Charles

Warren, had written:

However the Court may interpret the provisions of the

Constitution, it is still the Constitution which is the law

and not the decision of the Court.[8]

In short, it is "not necessarily so" that the Constitution is preserved

in the Court's reading of it.

A third difficulty in the way of the theory that Judicial Review is

preservative of the Constitution is confronted when we turn to consider

the statistical aspects of the matter. The suggestion that the

Constitution of the United States contained in embryo from the beginning

the entirety of our national Constitutional Law confronts the will to

believe with an altogether impossible test. Compared with the

Constitutional Document, with its 7,000 words more or less, the bulk of

material requiring to be noticed in the preparation of an annotation of

this kind is simply immense. First and last, the Court has probably

decided well over 4,000 cases involving questions of constitutional

interpretation. In many instances, to be sure, the constitutional issue

was disposed of quite briefly. In some instances, on the other hand, the

published report of the case runs to more than 200 pages.[9] In the

total, it is probable that at least 50,000 pages of the United States

Supreme Court Reports are devoted to Constitutional Law topics.

Nor is this the whole story, or indeed the most important part of it.

Even more striking is the fact that the vast proportion of cases forming

the corpus of national Constitutional Law has stemmed, or has purported

to stem, from four or five brief phrases of the Constitutional Document,

the power "to regulate ... commerce among the States," impairment of

"the obligation of contracts" (now practically dried up as a formal

source of constitutional law), deprivation of "liberty or property

without due process of law" (which phrase occurs both as a limitation on

the National Government and, since 1868, on the States), and out of four

or five doctrines which the Constitution is assumed to embody. The

latter are, in truth, the essence of the matter, for it is through these

doctrines, and under the cover which they afford, that outside

interests, ideas, preconceptions, have found their way into

Constitutional Law, have indeed become for better, for worse, its

leavening element.

That is to say, the effectiveness of Constitutional Law as a system of

restraints on governmental action in the United States, which is its

primary _raison d'etre_, depends for the most part on the effectiveness

of these doctrines as they are applied by the Court to that purpose. The

doctrines to which I refer are (1) the doctrine or concept of

Federalism; (2) the doctrine of the Separation of Powers; (3) the

concept of a Government of Laws and not of Men, as opposed especially to

indefinite conceptions of presidential power; (4) and the substantive

doctrine of Due Process of Law and attendant conceptions of Liberty.

What I proposed to do is to take up each of these doctrines or concepts

in turn, tell something of their earlier history, and then project

against this background a summary account of what has happened to them

in recent years in consequence of the impact of war, of economic crisis,

and of the political and ideological reaction to the latter during the

Administrations of Franklin D. Roosevelt.

I

Federalism

Federalism in the United States embraces the following elements: (1) as

in all federations, the union of several autonomous political entities,

or "States," for common purposes; (2) the division of legislative powers

between a "National Government," on the one hand, and constituent

"States," on the other, which division is governed by the rule that the

former is "a government of enumerated powers" while the latter are

governments of "residual powers"; (3) the direct operation, for the most

part, of each of these centers of government, within its assigned

sphere, upon all persons and property within its territorial limits; (4)

the provision of each center with the complete apparatus of law

enforcement, both executive and judicial; (5) the supremacy of the

"National Government" within its assigned sphere over any conflicting

assertion of "state" power; (6) dual citizenship.

The third and fourth of the above-listed salient features of the

American Federal System are the ones which at the outset marked it off

most sharply from all preceding systems, in which the member states

generally agreed to obey the mandates of a common government for certain

stipulated purposes, but retained to themselves the right of ordaining

and enforcing the laws of the union. This, indeed, was the system

provided in the Articles of Confederation. The Convention of 1787 was

well aware, of course, that if the inanities and futilities of the

Confederation were to be avoided in the new system, the latter must

incorporate "a coercive principle"; and as Ellsworth of Connecticut

expressed it, the only question was whether it should be "a coercion of

law, or a coercion of arms," that "coercion which acts only upon

delinquent individuals" or that which is applicable to "sovereign

bodies, states, in their political capacity."[10] In Judicial Review the

former principle was established, albeit without entirely discarding

the latter, as the War between the States was to demonstrate.

The sheer fact of Federalism enters the purview of Constitutional Law,

that is, becomes a judicial concept, in consequence of the conflicts

which have at times arisen between the idea of State Autonomy ("State

Sovereignty") and the principle of National Supremacy. Exaltation of the

latter principle, as it is recognized in the Supremacy Clause (Article

VI, paragraph 2) of the Constitution, was the very keystone of Chief

Justice Marshall's constitutional jurisprudence. It was Marshall's

position that the supremacy clause was intended to be applied literally,

so that if an unforced reading of the terms in which legislative power

was granted to Congress confirmed its right to enact a particular

statute, the circumstance that the statute projected national power into

a hitherto accustomed field of state power with unavoidable curtailment

of the latter was a matter of indifference. State power, as Madison in

his early nationalistic days phrased it, was "no criterion of national

power," and hence no independent limitation thereof.

Quite different was the outlook of the Court over which Marshall's

successor, Taney, presided. That Court took as its point of departure

the Tenth Amendment, which reads, "The powers not delegated to the

United States by this Constitution, nor prohibited by it to the States,

are reserved to the States respectively, or to the people." In

construing this provision the Court under Taney sometimes talked as if

it regarded all the reserved powers of the States as limiting national

power; at other times it talked as if it regarded certain subjects as

reserved exclusively to the States, slavery being, of course, the

outstanding instance.[11]

But whether following the one line of reasoning or the other, the Taney

Court subtly transformed its function, and so that of Judicial Review,

in relation to the Federal System. Marshall viewed the Court as

primarily an organ of the National Government and of its supremacy. The

Court under Taney regarded itself as standing outside of and above both

the National Government and the States, and as vested with a

quasi-arbitral function between two centers of diverse, but essentially

equal, because "sovereign", powers. Thus in Ableman _v._ Booth, which

was decided on the eve of the War between the States, we find Taney

himself using this arresting language:

This judicial power was justly regarded as indispensable, not

merely to maintain the supremacy of the laws of the United

States, but also to guard the States from any encroachment

upon their reserved rights by the general government.... So

long ... as this Constitution shall endure, this tribunal must

exist with it, deciding in the peaceful forms of judicial

proceeding, the angry and irritating controversies between

sovereignties, which in other countries have been determined

by the arbitrament of force.[12]

It is, therefore, the Taney Court, rather than the Marshall Court, which

elaborated the concept of Dual Federalism. Marshall's federalism is more

aptly termed national federalism; and turning to modern issues, we may

say without exaggeration that the broad general constitutional issue

between the Court and the Franklin D. Roosevelt program in such cases as

Schechter Corp. _v._ United States and Carter _v._ Carter Coal Co.[13]

was, whether Marshall's or Taney's brand of federalism should prevail.

More precisely, the issue in these cases was whether Congress' power to

regulate commerce must stop short of regulating the employer-employee

relationship in industrial production, that having been hitherto

regulated by the States. In Justice Sutherland's words in the Carter

case:

Much stress is put upon the evils which come from the struggle

between employers and employees over the matter of wages,

working conditions, the right of collective bargaining, etc.,

and the resulting strikes, curtailment and irregularity of

production and effect on prices; and it is insisted that

interstate commerce is greatly affected thereby.... The

conclusive answer is that the evils are all local evils over

which the Federal Government has no legislative control. The

relation of employer and employee is a local relation. At

common law, it is one of the domestic relations. The wages are

paid for the doing of local work. Working conditions are

obviously local conditions. The employees are not engaged in

or about commerce, but exclusively in producing a commodity.

And the controversies and evils, which it is the object of the

act to regulate and minimize, are local controversies and

evils affecting local work undertaken to accomplish that local

result. Such effect as they may have upon commerce, however

extensive it may be, is secondary and indirect. An increase in

the greatness of the effect adds to its importance. It does

not alter its character.[14]

We all know how this issue was finally resolved. In the Fair Labor

Standards Act of 1938 Congress not only prohibits interstate commerce in

goods produced by substandard labor, but it directly forbids, with

penalties, the employment of labor in industrial production for

interstate commerce on other than certain prescribed terms. And in

United States _v._ Darby[15] this Act was sustained by the Court, in all

its sweeping provisions, on the basis of an opinion by Chief Justice

Stone which in turn is based on Chief Justice Marshall's famous opinions

in McCulloch _v._ Maryland and Gibbons _v._ Ogden rendered more than a

century and a quarter ago. In short, as a principle capable of

delimiting the national legislative power, the concept of Dual

Federalism as regards the present Court seems today to be at an end,

with consequent aggrandizement of national power.

There is, however, another side to the story. For in one respect even

the great Marshall has been in effect overruled in support of enlarged

views of national authority. Without essaying a vain task of "tithing

mint, anise and cummin," it is fairly accurate to say that throughout

the 100 years which lie between Marshall's death and the cases of the

1930's, the conception of the federal relationship which on the whole

prevailed with the Court was a competitive conception, one which

envisaged the National Government and the States as jealous rivals. To

be sure, we occasionally get some striking statements of contrary

tendency, as in Justice Bradley's opinion in 1880 for a divided Court in

the Siebold Case,[16] where is reflected recognition of certain results

of the War between the States; or later in a frequently quoted dictum by

Justice McKenna, in Hoke _v._ United States, in which the Mann White

Slave Act was sustained in 1913:

Our dual form of government has its perplexities, State and

Nation having different spheres of jurisdiction ... but it

must be kept in mind that we are one people; and the powers

reserved to the states and those conferred on the nation are

adapted to be exercised, whether independently or

concurrently, to promote the general welfare, material and

moral.[17]

The competitive concept is, nevertheless, the one much more generally

evident in the outstanding results for American Constitutional Law

throughout three-quarters of its history. Of direct pertinence in this

connection is the doctrine of tax exemption which converted federalism

into a principle of private immunity from taxation, so that, for

example, neither government could tax as income the official salaries

paid by the other government.[18] This doctrine traces immediately to

Marshall's famous judgment in McCulloch _v._ Maryland,[19] and bespeaks

a conception of the federal relationship which regards the National

Government and the States as bent on mutual frustration. Today the

principle of tax exemption, except so far as Congress may choose to

apply it to federal instrumentalities by virtue of its protective powers

under the necessary and proper clause, is at an end.

By the cooperative conception of the federal relationship the States and

the National Government are regarded as mutually complementary parts of

a single governmental mechanism all of whose powers are intended to

realize the current purposes of government according to their

applicability to the problem in hand. This is the conception on which

the recent social and economic legislation professes to rest. It is the

conception which the Court invokes throughout its decisions in

sustaining the Social Security Act of 1935 and supplementary state

legislation. It is the conception which underlies congressional

legislation of recent years making certain crimes against the States,

like theft, racketeering, kidnapping, crimes also against the National

Government whenever the offender extends his activities beyond state

boundary lines. The usually cited constitutional justification for such

legislation is that which was advanced forty years ago in the above

quoted Hoke Case.[20]

It has been argued that the cooperative conception of the federal

relationship, especially as it is realized in the policy of federal

subventions to the States, tends to break down state initiative and to

devitalize state policies. Actually, its effect has often been just the

contrary, and for the reason pointed out by Justice Cardozo in Helvering

_v._ Davis,[21] decided in 1937, namely, that the States, competing as

they do with one another to attract investors, have not been able to

embark separately upon expensive programs of relief and social

insurance. Another great objection to Cooperative Federalism is more

difficult to meet. This is, that Cooperative Federalism invites further

aggrandizement of national power. Unquestionably it does, for when two

cooperate, it is the stronger member of the combination who usually

calls the tunes. Resting as it does primarily on the superior fiscal

resources of the National Government, Cooperative Federalism has been,

at least to date, a short expression for a constantly increasing

concentration of power at Washington in the stimulation and supervision

of local policies.[22]

The last element of the concept of Federalism to demand attention is the

doctrine that the National Government is a government of enumerated

powers only, and consequently under the necessity at all times of

justifying its measures juridically by pointing to some particular

clause or clauses of the Constitution which, when read separately or in

combination, may be thought to grant power adequate to such measures. In

spite of such recent decisions as that in United States _v._ Darby, this

time-honored doctrine still guides the authoritative interpreters of the

Constitution in determining the validity of acts which are passed by

Congress in presumed exercise of its powers of domestic legislation--the

course of reasoning pursued by the Chief Justice in the Darby Case

itself is proof that such is the fact. In the field of foreign

relations, on the contrary, the doctrine of enumerated powers has always

had a difficult row to hoe, and today may be unqualifiedly asserted to

be defunct.

As early as the old case of Penhallow _v._ Doane, which was decided by

the Supreme Court in 1795, certain counsel thought it pertinent to urge

the following conception of the War Power:

A formal compact is not essential to the institution of a

government. Every nation that governs itself, under what form

soever, without any dependence on a foreign power, is a

sovereign state. In every society there must be a sovereignty.

1 Dall. Rep. 46, 57. Vatt. B. 1. ch. 1. sec. 4. The powers of

war form an inherent characteristic of national sovereignty;

and, it is not denied, that Congress possessed those

powers....[23]

To be sure, only two of the Justices felt it necessary to comment on

this argument, which one of them endorsed, while the other rejected it.

Yet seventy-five years later Justice Bradley incorporated closely

kindred doctrine into his concurring opinion in the Legal Tender

Cases;[24] and in the years following the Court itself frequently

brought the same general outlook to questions affecting the National

Government's powers in the field of foreign relations. Thus in the

Chinese Exclusion Case, decided in 1889, Justice Field, in asserting the

unlimited power of the National Government, and hence of Congress, to

exclude aliens from American shores, remarked:

While under our Constitution and form of government the great

mass of local matters is controlled by local authorities, the

United States, in their relation to foreign countries and

their subjects or citizens, are one nation, invested with the

powers which belong to independent nations, the exercise of

which can be invoked for the maintenance of its absolute

independence and security throughout its entire territory.[25]

And four years later the power of the National Government to deport

alien residents at the option of Congress was based by Justice Gray on

the same general reasoning.[26]

Finally, in 1936, Justice Sutherland, speaking for the Court in United

States _v._ Curtiss-Wright Corporation, with World War I a still recent

memory, took over bodily counsel's argument of 140 years earlier, and

elevated it to the head of the column of authoritative constitutional

doctrine. He said:

A political society cannot endure without a supreme will

somewhere. Sovereignty is never held in suspense. When,

therefore, the external sovereignty of Great Britain in

respect of the colonies ceased, it immediately passed to the

Union.... It results that the investment of the Federal

government with the powers of external sovereignty did not

depend upon the affirmative grants of the Constitution. The

powers to declare and wage war, to conclude peace, to make

treaties, to maintain diplomatic relations with other

sovereignties, if they had never been mentioned in the

Constitution, would have vested in the Federal government as a

necessary concomitant of nationality.[27]

In short, the power of the National Government in the field of

international relationship is not simply a complexus of particular

enumerated powers; it is an inherent power, one which is attributable to

the National Government on the ground solely of its belonging to the

American People as a sovereign political entity at International Law. In

that field the principle of Federalism no longer holds, if it ever

did.[28]

II

The Separation of Powers

The second great structural principle of American Constitutional Law is

supplied by the doctrine of the Separation of Powers. The notion of

three distinct functions of government approximating what we today term

the legislative, the executive, and the judicial, is set forth in

Aristotle's Politics,[29] but it was the celebrated Montesquieu who, by

joining the idea to the notion of a "mixed constitution" of "checks and

balances", in Book XI of his Spirit of the Laws, brought Aristotle's

discovery to the service of the rising libertarianism of the eighteenth

century. It was Montesquieu's fundamental contention that "men entrusted

with power tend to abuse it". Hence it was desirable to divide the

powers of government, first, in order to keep to a minimum the powers

lodged in any single organ of government; secondly, in order to be able

to oppose organ to organ.

In the United States libertarian application of the principle was

originally not too much embarrassed by inherited institutions. In its

most dogmatic form the American conception of the Separation of Powers

may be summed up in the following propositions: (1) There are three

intrinsically distinct functions of government, the legislative, the

executive, and the judicial; (2) these distinct functions ought to be

exercised respectively by three separately manned departments of

government; which, (3) should be constitutionally equal and mutually

independent; and finally, (4) a corollary doctrine stated by Locke--the

legislature may not delegate its powers.[30]

Prior even to Franklin D. Roosevelt this entire colligation of ideas had

been impaired by three developments in national governmental practice:

first, the growth of Presidential initiative in legislation; secondly,

the delegation by Congress of legislative powers to the President;

thirdly, the delegation in many instances of like powers to so-called

independent agencies or commissions, in which are merged in greater or

less measure the three powers of government of Montesquieu's postulate.

Under Roosevelt the first two of these developments were brought to a

pitch not formerly approximated, except temporarily during World War I.

The truth is that the practice of delegated legislation is inevitably

and inextricably involved with the whole idea of governmental

intervention in the economic field, where the conditions to be regulated

are of infinite complexity and are constantly undergoing change. Granted

such intervention, it is simply out of the question to demand that

Congress should attempt to impose upon the shifting and complex scene

the relatively permanent molds of statutory provision, unqualified by a

large degree of administrative discretion. One of the major reasons

urged for governmental intervention is furnished by the need for gearing

the different parts of the industrial process with one another for a

planned result. In wartime this need is freely conceded by all; but its

need in economic crisis is conceivably even greater, the results sought

being more complex. So in the interest both of unity of design and of

flexibility of detail, presidential power today takes increasing toll

from both ends of the legislative process--both from the formulation of

legislation and from its administration. In other words, as a barrier

capable of preventing such fusion of presidential and congressional

power, the principle of the Separation of Powers does not appear to have

retained much of its original effectiveness; for on only one

occasion[31] prior to the disallowance, in Youngstown _v._ Sawyer,[32]

President Truman's seizure in April 1952 of the steel industry has the

Court been constrained to condemn, as in conflict with that principle, a

congressional delegation of legislative power. Indeed, its application

in the field of foreign relations has been virtually terminated by

Justice Sutherland's opinion in the Curtiss-Wright Case.[33]

The Youngstown Opinion appears to rest on the proposition that since

Congress could have ordered the seizure, e.g., under the necessary and

proper clause, the President, in making it on his own, usurped

"legislative power" and thereby violated the principle of the Separation

of Powers. In referring to this proposition, the Chief Justice (in his

dissenting opinion, for himself and Justices Reed and Minton) quoted as

follows from a 1915 brief of the then Solicitor General of the United

States on this same question:

The function of making laws is peculiar to Congress, and the

Executive can not exercise that function to any degree. But

this is not to say that all of the _subjects_ concerning which

laws might be made are perforce removed from the possibility

of Executive influence. The Executive may act upon things and

upon men in many relations which have not, though they might

have, been actually regulated by Congress.

In other words, just as there are fields which are peculiar to

Congress and fields which are peculiar to the Executive, so

there are fields which are common to both, in the sense that

the Executive may move within them until they shall have been

occupied by legislative action. These are not the fields of

legislative prerogative, but fields within which the lawmaking

power may enter and dominate whenever it chooses. This

situation results from the fact that the President is the

active agent, not of Congress, but of the Nation.[34]

Or, in more general terms, the fact that one of the three departments

may apply its distinctive techniques to a certain subject matter sheds

little or no light on the question whether one of the other departments

may deal with the same subject matter according to its distinctive

techniques. Indeed, were it otherwise, the action of the Court in

disallowing President Truman's seizure order would have been of very

questionable validity, inasmuch as the President himself conceded that

Congress could do so.

The conception of the Separation of Powers doctrine advanced in

Youngstown appears to have been an ad hoc discovery for the purpose of

disposing of that particular case.

To sum up the argument to this point: War, the Roosevelt-Truman

programs, and the doctrines of Constitutional Law on which they rest,

and the conception of governmental function which they incorporate, have

all tremendously strengthened forces which even earlier were making,

slowly, to be sure, but with "the inevitability of gradualness," for the

concentration of governmental power in the United States, first in the

hands of the National Government; and, secondly, in the hands of the

national Executive. In the Constitutional Law which the validation of

the Roosevelt program has brought into full being, the two main

structural elements of government in the United States in the past, the

principle of Dual Federalism and the doctrine of the Separation of

Powers, have undergone a radical and enfeebling transformation which war

has, naturally, carried still further.

III

A Government of Laws and Not of Men

The earliest repositories of executive power in this country were the

provincial governors. Being the point of tangency and hence of

irritation between imperial policy and colonial particularism, these

officers incurred a widespread unpopularity that was easily generalized

into distrust of their office. So when Jefferson asserted in his

_Summary View_, in 1774, that the King "is no more than the chief

officer of the people, appointed by the laws and circumscribed with

definite powers, to assist in working the great machine of

government,"[35] he voiced a theory of executive power which, impudently

as it flouted historical fact, had the support of the draftsmen of the

first American constitutions. In most of these instruments the governors

were elected annually by the legislative assemblies, were stripped of

every prerogative of their predecessors in relation to legislation, and

were forced to exercise the powers left them subject to the advice of a

council chosen also by the assembly, and from its own members if it so

desired. Finally, out of abundant caution the constitution of Virginia

decreed that executive powers were to be exercised "according to the

laws of" the Commonwealth, and that no power or prerogative was ever to

be claimed "by virtue of any law, statute or custom of England."

"Executive power", in short, was left entirely to legislative definition

and was cut off from all resources of the common law and the precedents

of English monarchy.

Fortunately or unfortunately, the earlier tradition of executive power

was not to be exorcised so readily. Historically, this tradition traces

to the fact that the royal prerogative was residual power, that the

monarch was first on the ground, that the other powers of government

were off-shoots from monarchical power. Moreover, when our forefathers

turned to Roman history, as they intermittently did, it was borne in

upon them that dictatorship had at one time been a normal feature of

republican institutions.

And what history consecrated, doctrine illumined. In Chapter XI of John

Locke's Second Treatise on Civil Government, from the pages of which

much of the opening paragraphs of the Declaration of Independence comes,

we read: "Absolute arbitrary power, or governing without settled

standing laws, can neither of them consist with the ends of society and

government".[36] In Chapter XIV of the same work we are told,

nevertheless, that "prerogative" is the power "to act according to

discretion without the prescription of the law and sometimes against

it"; and that this power belongs to the executive, it being "impossible

to foresee and so by laws to provide for all accidents and necessities

that may concern the public, or make such laws as will do no harm if

they are executed with inflexible rigor." Nor, continues Locke, is this

"undoubted prerogative" ever questioned, "for the people are very seldom

or never scrupulous or nice in the point" whilst the prerogative "is in

any tolerable degree employed for the use it was meant, that is, for the

good of the people."[37] A parallel ambivalence pervades both practice

and adjudication under the Constitution from the beginning.

The opening clause of Article II of the Constitution reads: "The

executive power shall be vested in a President of the United States of

America". The primary purpose of this clause, which made its appearance

late in the Convention and was never separately passed upon by it, was

to settle the question whether the executive branch should be plural or

single; a secondary purpose was to give the President a title. There is

no hint in the published records that the clause was supposed to add

cubits to the succeeding clauses which recite the President's powers and

duties in detail.

For all that, the "executive power" clause was invoked as a grant of

power in the first Congress to assemble under the Constitution, and

outside Congress in 1793. On the former occasion Madison and others

advanced the contention that the clause empowered the President to

remove without the Senate's consent all executive officers, even those

appointed with that consent, and in effect this view prevailed, to be

ratified by the Supreme Court 137 years later in the famous Oregon

Postmaster Case.[38]

In 1793 the protagonist of "executive power" was Alexander Hamilton, who

appealed to the clause in defense of Washington's proclamation of

neutrality, issued on the outbreak of war between France and Great

Britain. Prompted by Jefferson to take up his pen and "cut him to pieces

in face of public," Madison shifted position, and charged Hamilton with

endeavoring to smuggle the prerogative of the King of Great Britain into

the Constitution via the "executive power" clause.[39] Three years

earlier Jefferson had himself written in an official opinion as

Secretary of State: [The Executive branch of the government],

"possessing the rights of self-government from nature, cannot be

controlled in the exercise of them but by a law, passed in the forms of

the Constitution".[40]

This time judicial endorsement of the broad conception of the executive

power came early. In laying the foundation in Marbury _v._ Madison for

the Court's claim of power to pass on the constitutionality of acts of

Congress, Marshall said: "The government of the United States has been

emphatically termed a government of laws and not of men".[41] Two pages

along he added these words:

By the constitution of the United States, the President is

invested with certain important political powers, in the

exercise of which he is to use his own discretion, and is

accountable only to his country in his political character,

and to his own conscience. To aid him in the performance of

these duties, he is authorized to appoint certain officers,

who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion

may be entertained of the manner in which executive discretion

may be used, still there exists, and can exist, no power to

control that discretion. The subjects are political. They

respect the nation, not individual rights, and being entrusted

to the executive, the decision of the executive is

conclusive.[42]

From these words arises the doctrine of Political Questions, an escape

clause from the trammels of judicial review for high executive officers

in the performance of their discretionary duties. The doctrine was

continued, even expanded, by Marshall's successor. In Luther _v._

Borden,[43] decided in 1849, the Court was invited to review the

determination by the President that the existing government of Rhode

Island was "republican" in form. It declined the invitation, holding

that the decision of Congress and of the President as Congress's

delegate was final in the matter, and bound the courts. Otherwise said

Chief Justice Taney, the guarantee clause of the Constitution (Article

IV, section 4) "is a guarantee of anarchy and not of order". But a year

later the same Chief Justice, speaking again for the unanimous Court,

did not hesitate to rule that the President's powers as

commander-in-chief were purely military in character, those of any top

general or top admiral.[44] Hamilton had said the same thing in

Federalist No. 69.

Alongside the opinions of the Court of this period, however, stand

certain opinions of Attorneys General that yield a less balanced bill of

fare. For it is the case that, from the first down to the present year

of grace, these family lawyers of the Administration in power have

tended to favor expansive conceptions of presidential prerogative. As

early as 1831 we find an Attorney-General arguing before the Supreme

Court that, in performance of the trust enjoined upon him by the

"faithful execution" clause, the President "not only may, but ... is

bound to avail himself of every appropriate means not forbidden by

law."[45] Especially noteworthy is a series of opinions handed down by

Attorney-General Cushing in the course of the years 1853 to 1855. In one

of these the Attorney-General laid down the doctrine that a marshal of

the United States, when opposed in the execution of his duty by unlawful

combinations too powerful to be dealt with by the ordinary processes of

a federal court, had authority to summon the entire able-bodied force of

his precinct as a _posse comitatus_, comprising not only bystanders and

citizens generally but any and all armed forces,[46] which is precisely

the theory upon which Lincoln based his call for volunteers in April,

1861.

Also manifest is the debt of Lincoln's message of July 4, 1861, to these

opinions. Here in so many words the President lays claim to "the war

power", partly on the ground of his duty to "take care that the laws be

faithfully executed", partly in reliance on his powers as

Commander-in-Chief, incidentally furnishing thereby a formula which has

frequently reappeared in opinions of Attorneys-General in recent years.

Nor did Lincoln ever relinquish the belief that on the one ground or the

other he possessed extraordinary resources of power which Congress

lacked and the exercise of which it could not control--an idea in the

conscientious pursuit of which his successor came to the verge of utter

disaster.

When first confronted with Lincoln's theory in the Prize Cases,[47] in

the midst of war, a closely divided Court treated it with abundant

indulgence; but in _Ex parte_ Milligan[48] another closely divided Court

swung violently to the other direction, adopting the comfortable

position that the normal powers of the government were perfectly

adequate to any emergency that could possibly arise, and citing the war

just "happily terminated" in proof. But once again the principle of

equilibrium asserted itself. Five months after Milligan, the same Bench

held unanimously in Mississippi _v._ Johnson[49] that the President is

not accountable to any court save that of impeachment either for the

nonperformance of his constitutional duties or for the exceeding of his

constitutional powers.

This was in the 1866-1867 term of Court. Sixteen years later, in 1882,

Justice Samuel Miller gave classic expression to the principle of "a

government of laws and not of men" in these words: "No man is so high

that he is above the law.... All officers are creatures of the law and

are bound to obey it."[50] Eight years later this same great Judge

queried whether the President's duty to take care that the laws be

faithfully executed is "limited to the enforcement of acts of Congress

or of treaties according to their express terms," whether it did not

also embrace "the rights, duties, and obligations growing out of the

Constitution itself ... and all the protection implied by the nature of

the government under the Constitution."[51] Then in 1895, in the Debs

Case,[52] the Court sustained unanimously the right of the National

Executive to go into the federal courts and secure an injunction against

striking railway employees who were interfering with interstate

commerce, although it was conceded that there was no statutory basis for

such action. The opinion of the Court extends the logic of the holding

to any widespread public interest.

The great accession to presidential power in recent decades has been

accompanied by the breakdown dealt with earlier of the two great

structural principles of the American Constitutional System, the

doctrine of Dual Federalism and the doctrine of the Separation of

Powers. The first exponent of "the New Presidency", as some termed it,

was Theodore Roosevelt, who tells us in his _Autobiography_ that the

principle which governed him in his exercise of the presidential office

was that he had not only a right but a duty "to do anything that the

needs of the Nation demanded unless such action was forbidden by the

Constitution or by the laws."[53] In his book, _Our Chief Magistrate and

his Powers_, Ex-President Taft warmly protested against the notion that

the President has any constitutional warrant to attempt the role of a

"Universal Providence."[54] A decade earlier his destined successor,

Woodrow Wilson, had avowed the opinion that "the President is at

liberty, both in law and conscience, to be as big a man as he can".[55]

But it is the second Roosevelt who beyond all twentieth-century

Presidents succeeded in affixing the stamp both of personality and of

crisis upon the Presidency as it exists at this moment. In the solution

of the problems of an economic crisis, "a crisis greater than war", he

claimed for the National Government in general, and for the President in

particular, powers which they had hitherto exercised only on the

justification of war. Then when the greatest crisis in the history of

our international relations arose, he imparted to the President's

diplomatic powers new extension, now without consulting Congress, now

with Congress's approval; and when at last we entered World War II, he

endowed the precedents of both the War between the States and of World

War I with unprecedented scope.[56]

It is timely therefore to inquire whether American Constitutional Law

today affords the Court a dependable weapon with which to combat

effectively contemporary enlarged conceptions of presidential power.

Pertinent in this connection is the aforementioned recent action of the

Court in Youngstown _v._ Sawyer disallowing presidential seizure of the

steel industry. The net result of that Case is distinctly favorable to

presidential pretensions, in two respects: First, because of the failure

of the Court to traverse the President's finding of facts allegedly

justifying his action, an omission in accord with the doctrine of

Political Questions; secondly, the evident endorsement by a majority of

the Court of the doctrine that, as stated in Justice Clark's opinion:

"The Constitution does grant to the President extensive authority in

times of grave and imperative national emergency".[57] That the Court

would have sustained, as against the President's action, a clear-cut

manifestation of congressional action to the contrary is, on the other

hand, unquestionable. In short, if we are today looking for a check upon

the development of executive emergency government, our best reliance is

upon the powers of Congress, which can always supply needed gaps in its

legislation. The Court can only say "no", and there is no guarantee that

in the public interest it would wish to assume this responsibility.

IV

The Concept of Substantive Due Process of Law

A cursory examination of the pages of this volume reveals that fully a

quarter of them deal with cases in which the Court has been asked to

protect private interests of one kind or another against legislation,

most generally state legislation, which is alleged to invade "liberty"

or "property" contrary to "due process of law". How is this vast

proliferation of cases, and attendant expansion of the Court's

constitutional jurisdiction, to be explained? The explanation, in brief,

is to be found in the replacement of the original meaning of the due

process clause with a meaning of vastly greater scope. Judicial review

is always a function, so to speak, of the viable Constitutional Law of a

particular period.

From what has been previously said in this Introduction, it clearly

appears that the Court's interpretation of the Constitution has involved

throughout considerable lawmaking, but in no other instance has its

lawmaking been more evident than in its interpretation of the due

process clauses, and in no other instance have the state judiciaries

contributed so much to the final result. The modern concept of

substantive due process is not the achievement of any one American high

court; it is the joint achievement of several--in the end, of all.[58]

The thing which renders the due process clause an important datum of

American Constitutional Law is the role it has played first and last in

articulating certain theories of private immunity with the

Constitutional Document. The first such theory was Locke's conception of

the property right as anterior to government and hence as setting a

moral limit to its powers.[59] But while Locke's influence is seen to

pervade the Declarations and Bills of Rights which often accompanied the

revolutionary State Constitutions, yet their promise was early defeated

by the overwhelming power of the first state legislatures, especially

_vis-a-vis_ the property right. One highly impressive exhibit of early

state legislative power is afforded by the ferocious catalogue of

legislation directed against the Tories, embracing acts of confiscation,

bills of pains and penalties, even acts of attainder. A second exhibit

of the same kind is furnished by the flood of paper money laws and other

measures of like intent which the widespread debtor class forced through

the great majority of the state assemblies in the years following the

general collapse of values in 1780.

The most important reaction of the creditor interest to this course of

legislation was its energetic part in bringing about the Philadelphia

Convention. Closer, however, to our purpose is the leadership taken by

the new federal judiciary in asserting the availability against

predatory state legislation of extra-constitutional principles sounding

in Natural Law. In 1795 Justice Paterson of the new Supreme Court

admonished a Pennsylvania jury that to construe a certain state statute

in a way to bring it into conflict with plaintiff's property rights

would render it void. "Men," said he, "have a sense of property.... The

preservation of property ... is a primary object of the social

compact".[60] Three years later, Justice Chase proclaimed from the

Supreme Bench itself, with characteristic emphasis, his rejection of the

idea that state legislative power was absolute unless its authority was

"expressly restrained" by the constitution of the State.[61] He too was

thinking primarily of the rights of property.

To dicta such as these constantly accrued others of like tenor from

various high state courts, the total of which had come to comprise prior

to the War between the States an impressive body of coherent doctrine

protective of vested rights but claiming little direct support from

written constitutional texts. This indeed was its weakness. For the

question early obtruded itself, whether judicial review could pretend to

operate on a merely moral basis. Both the notion that the Constitution

was an emanation from the sovereignty of the people, and the idea that

judicial review was but a special aspect of normal judicial function,

forbade the suggestion. It necessarily followed that unless judicial

protection of the property right against legislative power was to be

waived, it must be rested on some clause of the constitutional document;

and, inasmuch as the due process clause and the equivalent law of the

land clause of certain of the early state constitutions were the only

constitutional provisions which specifically mentioned property, they

were the ones selected for the purpose.

The absorptive powers of the law of the land clause, the precursor in

the original state constitutions of the historically synonymous due

process clause, was foreshadowed as early as 1819 in a dictum by

Justice William Johnson of the United States Supreme Court:

As to the words from Magna Charta ... after volumes spoken and

written with a view to their exposition, the good sense of

mankind has at length settled down to this: that they were

intended to secure the individual from the arbitrary exercise

of the powers of government, unrestrained by the established

principles of private rights and distributive justice.[62]

Thirty-eight years later, in 1857, the prophecy of these words was

realized in the famous Dred Scott Case,[63] in which Section 8 of the

Missouri Compromise, whereby slavery was excluded from the territories,

was held void under the Fifth Amendment, not on the ground that the

procedure for enforcing it was not due process of law, but because the

Court regarded it as unjust to forbid people to take their slaves, or

other property, into the territories, the common property of all the

States.

Meanwhile, in the previous year (1856) the recently established Court of

Appeals of New York had, in the landmark case of Wynehamer _v._

People,[64] set aside a state-wide prohibition law as comprising, with

regard to liquors in existence at the time of its going into effect, an

act of destruction of property not within the power of government to

perform "even by the forms of due process of law". The term due process

of law, in short, simply drops out of the clause, which comes to read

"no person shall be deprived of property", period. At the same time

Judge Comstock's opinion in the case sharply repudiates all arguments

against the statute sounding in Natural Law concepts, fundamental

principles of liberty, common reason and natural rights, and so forth.

Such theories were subversive of the necessary powers of government.

Furthermore, there was "no process of reasoning by which it can be

demonstrated that the 'Act for the Prevention of Intemperance, Pauperism

and Crime' is void, upon principles and theories outside of the

constitution, which will not also, and by an easier induction, bring it

in direct conflict with the constitution itself."[65] Thus it was

foreshadowed that the law of the land and the due process of law

clauses, which were originally inserted in our constitutions to

consecrate a specific mode of trial in criminal cases, to wit, the grand

jury, petit jury process of the common law, would be transformed into a

general restraint upon substantive legislation capable of affecting

property rights detrimentally.

It is against this background that the adoption of the Fourteenth

Amendment in 1868 must be projected. Applied, as in the Dred Scott and

Wynehamer cases, the clause which forbids any State "to deprive any

person of life, liberty or property without due process of law"

proffered the Court, in implication, a vast new jurisdiction, but this

the Court at first manifested the greatest reluctance to enter upon. It

did not wish, it protested, to become "a perpetual censor upon all State

legislation"; nor did it wish, by enlarged conceptions of the rights

protected by the Amendment, to encourage Congress to take over, under

the fifth section of the Amendment, the regulation of all civil rights.

"The federal equilibrium" had already been sufficiently disturbed by the

results of the War between the States and Reconstruction.[66]

But this self-denying ordinance, which never had the support of more

than a very narrow majority of the Court, soon began to crumble at the

edges. It was a period of immense industrial expansion, and the men who

directed this wanted a free hand. In 1878 the American Bar Association

was formed from the elite of the American Bar. Organized as it was in

the wake of the "barbarous" decision--as one member termed it--in Munn

_v._ Illinois,[67] in which the Supreme Court had held that states were

entitled by virtue of their police power to prescribe the charges of

"businesses affected with a public interest," the Association, through

its more eminent members, became the mouthpiece of a new constitutional

philosophy which was compounded in about equal parts from the teachings

of the British Manchester School of Political Economy and Herbert

Spencer's highly sentimentalized version of the doctrine of evolution,

just then becoming the intellectual vogue; plus a "booster"--in the

chemical sense--from Sir Henry Maine's _Ancient Law_, first published in

1861. I refer to Maine's famous dictum that "the movement of the

progressive societies has hitherto been a movement from _Status to

Contract_". If hitherto, why not henceforth?[68]

In short, the American people were presented, overnight as it were, with

a new doctrine of Natural Law. Encouraged by certain dicta of dissenting

Justices of the Supreme Court, a growing procession of high State

courts--those of New York, Pennsylvania, Illinois, and Massachusetts,

leading the way--now began infiltrating the due process clauses and

especially the word "liberty" thereof, of their several State

constitutions with the new revelation. The product of these activities

was the doctrine of freedom of contract, the substantial purport of

which was that any legislation which restricted the liberty of male

persons twenty-one years of age, whether they were employers or

employees, in the making of business contracts, far from being

presumptively constitutional, must be justified by well known facts of

which the court was entitled to take judicial notice; otherwise it fell

under the ban of the due process clause.[69]

At last, in 1898, the Supreme Court at Washington, following some

tentative gestures in that direction, accepted the new dispensation

outright. In Smyth _v._ Ames decided that year, partially overturning

Munn _v._ Illinois, it gave notice of its intention to review in detail

the "reasonableness" of railway rates set by State authority and in

Holden _v._ Hardy it ratified, at the same term, the doctrine of freedom

of contract.[70] The result of the two holdings for the Court's

constitutional jurisdiction is roughly indicated by the fact that

whereas it had decided 134 cases under the Amendment during the thirty

preceding years, in the ensuing thirteen years it decided 430 such

cases.[71]

For more than a generation now the Court became the ultimate guardian,

in the name of the Constitutional Document, of the _laissez-faire_

conception of the proper relation of Government to Private Enterprise, a

rather inconstant guardian, however, for its fluctuating membership

tipped the scales now in favor of Business, now in favor of Government.

And today the latter tendency appears to have prevailed. In its

decisions early in 1937 sustaining outstanding Roosevelt Administration

measures, the Court not only subordinated the freedom of employers to

contract to the freedom of employees to organize, but intimated broadly

that liberty in some of its phases is much more dependent upon

legislative implementation that upon judicial protection.[72]

In contrast to this withdrawal, however, has been the Court's projection

of another segment of "liberty" into new territory. In Gitlow _v._ New

York,[73] decided in 1925, even in sustaining an antisyndicalist

statute, the Court adopted _arguendo_ the proposition which it had

previously rejected, that "liberty" in Amendment XIV renders available

against the States the restraints which Amendment I imposes on Congress.

For fifteen years little happened. Then in 1940, the Court supplemented

its ruling in the Gitlow Case with the so-called "Clear and Present

Danger" rule, an expedient which was designed to divest state enactments

restrictive of freedom of speech, of press, of religion, and so forth,

of their presumed validity, just as, earlier, statutes restrictive of

freedom of contract had been similarly disabled. By certain of the

Justices, this result was held to be required by "the preferred

position" of some of these freedoms in the hierarchy of constitutional

values; an idea to which certain other Justices demurred. The result to

date has been a series of holdings the net product of which for our

Constitutional Law is at this juncture difficult to estimate; and the

recent decision in Dennis _v._ United States under Amendment I augments

the difficulty.[74]

A passing glance will suffice for the operation of the due process

clause of Amendment V in the domain of foreign relations and the War

Power. The reader has only to consult in these pages such holdings as

those in Belmont _v._ United States, Yakus _v._ United States, Korematsu

_v._ United States, to be persuaded that even the Constitution is no

exception to the maxim, _inter arma silent leges_.[75]

In short, the substantive doctrine of due process of law does not today

support judicial intervention in the field of social and economic

legislation in anything like the same measure that it did, first in the

States, then through the Supreme Court on the basis of Amendment XIV, in

the half century between 1885 and 1935. But this fact does not signify

that the clause is not, in both its procedural sense and its broader

sense, especially when supplemented by the equal protection clause of

Amendment XIV, a still valuable and viable source of judicial protection

against parochial despotisms and petty tyrannies. Yet even in this

respect, as certain recent decisions have shown, the Court can often act

more effectively on the basis of congressional legislation implementing

the Amendment than when operating directly on the basis of the Amendment

itself.[76]

Resume

Considered for the two fundamental subjects of the powers of government

and the liberties of individuals, interpretation of the Constitution by

the Supreme Court falls into four tolerably distinguishable periods. The

first, which reaches to the death of Marshall, is the period of the

dominance of the Constitutional Document. The tradition concerning the

original establishment of the Constitution was still fresh, and in the

person and office of the great Chief Justice the intentions of the

framers enjoyed a renewed vitality. This is not to say that Marshall did

not have views of his own to advance; nor is it to say that the

historicity of a particular theory concerning the Constitution is

necessarily a matter of critical concern save to students of history. It

is only to say that the theories which Marshall urged in support of his

preferences were, in fact, frequently verifiable as theories of the

framers of the Constitution.

The second period is a lengthy one, stretching from the accession of

Chief Justice Taney in 1835 to, say, 1895. It is the period _par

excellence_ of Constitutional Theory. More and more the constitutional

text fades into the background, and the testimony of the _Federalist_,

Marshall's sole book of precedents, ceases to be cited. Among the

theories which in one way or other received the Court's approval during

this period were the notion of Dual Federalism, the doctrine of the

Police Power, the taboo on delegation of legislative power, the derived

doctrine of Due Process of Law, the conception of liberty as Freedom of

Contract, and still others. The sources of some of these doctrines and

the nature of the interests benefited by them have been indicated

earlier in these pages. Their net result was to put the national

law-making power into a strait-jacket so far as the regulation of

business was concerned.

The third period was that of Judicial Review pure and simple. The Court,

as heir to the accumulated doctrines of its predecessors, found itself

for the time being in possession of such a variety of instruments of

constitutional exegesis that it was often able to achieve almost any

result in the field of constitutional interpretation which it considered

desirable, and that without flagrant departure from judicial good form.

Indeed, it is altogether apparent that the Court was in actual

possession and in active exercise of what Justice Holmes once termed

"the sovereign prerogative of choice." It was early in this period that

Governor Hughes, soon to ascend the Bench, said, without perhaps

intending all that his words literally conveyed, "We are under a

Constitution, but the Constitution is what the judges say it is." A

decade later it was suggested by an eminent law teacher that attorneys

arguing "due process cases" before the Court ought to address the

Justices not as "Your Honors" but as "Your Lordships"; and Senator

Borah, in the Senate debate on Mr. Hughes' nomination for Chief Justice,

in 1930, declared that the Supreme Court had become "economic dictator

in the United States". Some of the Justices concurred in these

observations, especially Justices Holmes and Brandeis. Asserted the

latter, the Court has made itself "a super-legislature" and Justice

Holmes could discover "hardly any limit but the sky" to the power

claimed by the Court to disallow State acts "which may happen to strike

a majority [of its members] as for any reason undesirable".[77]

The fourth period is still with us. It was ushered in by World War I,

but its results were consolidated and extended during the 1930's, and

have been subsequently still further enlarged and confirmed by World War

II and the "cold war". Many of these results have been treated above.

Others can be searched out in the pages of this volume. What they sum up

to is this: that what was once vaunted as a Constitution of Rights, both

State rights and private rights, has been replaced to a great extent by

a Constitution of Powers. The Federal System has shifted base in the

direction of a consolidated national power; within the National

Government itself there has been an increased flow of power in the

direction of the President; even judicial enforcement of the Bill of

Rights has faltered at times, in the presence of national emergency.

In this situation judicial review as exercised by the Supreme Court does

not cease being an important technique of government under the

Constitution, but its field of operation has contracted. The purpose

which it serves more and more exclusively is the purpose for which it

was originally created to serve, the maintenance of the principle of

National Supremacy. But in fact, this is the purpose which it has always

served predominantly, even in the era when it was cutting its widest

swathe in the field of national legislative policy, the period from 1895

to 1935. Even then there was a multiplicity of state legislatures and

only one Congress, so that the legislative grist that found its way to

the Court's mill was overwhelmingly of local provenience. And since then

several things have happened to confirm this predominance: first, the

annexation to Amendment XIV of much of the content of the Federal Bill

of Rights; secondly, the extension of national legislative power,

especially along the route of the commerce clause, into the field of

industrial regulation, with the result of touching state legislative

power on many more fronts than ever before; thirdly, the integration of

the Nation's industrial life, which has brought to the National

Government a major responsibility for the maintenance of a functioning

social order.

Forty years ago the late Justice Holmes said:

"I do not think the United States would come to an end if we

[the Court] lost our power to declare an Act of Congress void.

I do think the Union would be imperiled if we could not make

that declaration as to the laws of the several States".[78]

By and large, this still sizes up the situation.

Edward S. Corwin.

_January, 1953._

Notes

[1] _Cong. Record_, vol. 23, p. 6516.

[2] _The Genessee Chief_, 12 How. 443 (1851), overturning _The Thomas

Jefferson_, 10 Wheat. 428 (1825).

[3] Knox _v._ Lee, 12 Wall. 457 (1871); Hepburn _v._ Griswold, 8 Wall.

603 (1870).

[4] Pollock _v._ Farmers' Loan & Trust Co., 157 U.S. 429; Same, 158 U.S.

601.

[5] _Cong. Record_, vol. 78, p. 5358.

[6] Smith _v._ Allwright, 321 U.S. 649, 665.

[7] Ibid. 669.

[8] _The Supreme Court in United States History_, III, 470-471 (1922).

[9] The Dartmouth College Case (1819) occupies 197 pages of 4 Wheaton;

Gibbons _v._ Ogden (1824), 240 pages of 9 Wheaton; The Charles River

Bridge case (1837), 230 pages of 11 Peters; the Passenger Cases (1849),

290 pages of 7 Howard; the Dred Scott Case (1857), 240 pages of 19

Howard; _Ex parte_ Milligan (1866), 140 pages of 4 Wallace; the first

Pollock Case (1895), 325 pages of 157 U.S.; Myers _v._ United States

(1926), 243 pages of 272 U.S.

[10] Max Farrand, _The Records of the Federal Convention of 1787_, III,

240-241 (1911).

[11] See Taney's words in 5 How. 504, 573-574 (1847), and 7 How. 283,

465-70 (1849).

[12] 21 How. 506, 520-521 (1859).

[13] 295 U.S. 495 (1935); 298 U.S. 238 (1936).

[14] 298 U.S. 238, 308-309.

[15] 312 U.S. 100 (1941).

[16] 100 U.S. 371.

[17] 227 U.S. 308, 322.

[18] Dobbins _v._ Commsrs., 16 Pet. 435 (1842); Collector _v._ Day, 11

Wall. 113. (1870).

[19] 4 Wheat. 316, 431 (1819).

[20] For references and further details, see E.S. Corwin, _Court over

Constitution_, 129-176 (1938).

[21] [Transcriber's Note: Footnote 21 is missing from original text.]

[22] In this connection, _see_ Oklahoma _v._ Civil Service Comm'n., 330

U.S. 127, 142-145 (1947).

[23] 3 Dall. 54, 74.

[24] 12 Wall. 457, 555 (1871).

[25] 130 U.S. 581, 604.

[26] Fong Yue Ting, 149 U.S. 698 (1893).

[27] 299 U.S. 304, 316-318.

[28] _See also_ University of Illinois _v._ United States, 289 U.S. 48,

59 (1933). In Lichter _v._ United States, 334 U.S. 742, 782 (1948),

Justice Burton, speaking for the Court, says: "The war powers of

Congress and the President are only those which are derived from the

Constitution", but he adds: "the primary implication of a war power is

that it shall be an effective power to wage war successfully", which

looks very like an attempt to duck the doctrine of an inherent war power

while appropriating its results.

[29] Welldon (tr.), Book VI, chap. XIV (1888). Jowett and some others

propose a different arrangement.

[30] John Locke. The Second Treatise on Civil Government, Sec. 141. For

the historical background of this principle, see P.W. Duff and H.E.

Whiteside, "_Delegata Potestas Non P[=o]test Delegari_", _Selected

Essays on Constitutional Law_, IV, 291-316 (1938).

[31] Panama Refining Co. _v._ Ryan, 293 U.S. 388 (1935); Schechter Corp.

_v._ United States, 295 U.S. 495 (1935).

[32] 343 U.S. 579 (1952).

[33] 299 U.S. 304, 327-329.

[34] 343 U.S. 579, 690.

[35] Andrew C. McLaughlin, _A Constitutional History of the United

States_, 81 (1935).

[36] Locke, op. cit., Sec. 137.

[37] Ibid., Sec. 159-161.

[38] Meyers _v._ United States, 272 U.S. 52 (1926).

[39] For the famous debate between "Pacificus" (Hamilton) and

"Helvidius" (Madison), see E.S. Corwin, _The President's Control of

Foreign Relations_, chap. I (1917).

[40] Writings of Thomas Jefferson, V, 209 (P.L. Ford, ed.; 1895).

[41] 1 Cr. 137, 163 (1803).

[42] Ibid., 165-166.

[43] 7 How. 1.

[44] Fleming _v._ Page, 9 How. 602 (1850).

[45] United States _v._ Tingy, 5 Pet. 115, 122.

[46] 6 _Op. Atty. Gen._ 466 (1854).

[47] 2 Black 635 (1863).

[48] 4 Wall. 2 (1866).

[49] 4 Wall. 475 (1866).

[50] United States _v._ Lee, 106 U.S. 196, 220.

[51] In Re Neagle, 135 U.S. 1, 64.

[52] 158 U.S. 564.

[53] _Autobiography_, 388-389 (1913).

[54] _Op. cit._, 144 (1916).

[55] _Constitutional Government in the United States_, 70 (1908).

[56] _See_ E.S. Corwin. _Total War and the Constitution_, 35-77 (1947).

[57] 343 U.S. 579, 662.

[58] _See_ E.S. Corwin. _Liberty Against Government_, Chaps. III, IV

(1948).

[59] "... the supreme power cannot take from any man any part of his

property without his consent". _Second Treatise_, Sec. 138.

[60] Van Home's Lessee _v._ Dorrance, 2 Dall. 304, 310 (1795).

[61] Calder _v._ Bull, 3 Dall. 386, 388-389 (1798). _See also_ Loan

Association _v._ Topeka, 20 Wall. 655 (1875).

[62] Bank of Columbia _v._ Okely, 4 Wheat. 235, 244.

[63] Scott _v._ Sandford, 19 How. 393, 450 (1857).

[64] 13 N.Y. 378 (1856).

[65] Ibid. 390-392. The absolute veto of the Court of Appeals in the

Wynehamer case was replaced by the Supreme Court, under the due process

clause of the Fourteenth Amendment, by a more flexible doctrine, which

left it open to the State to show reasonable justification for that type

of legislation in terms of acknowledged ends of the Police Power,

namely, the promotion of the public health, safety and morals. _See_

Mugler _v._ Kansas, 123 U.S. 623 (1887); and for a transitional case,

Bartemeyer _v._ Iowa, 18 Wall. 129 (1874).

[66] The Slaughter House Cases, 16 Wall. 36, 78-82 (1873). The opinion

of the Court was focused principally on the privileges and immunities

clause, and the narrow construction given it at this time is still the

law of the Court. But Justices Bradley and Swayne pointed out the

potentialities of the due process of law clause, and the former's

interpretation of it may be fairly regarded as the first step toward the

translation by the Court of "liberty" as Freedom on Contract.

[67] 94 U.S. 113 (1876).

[68] Benjamin R. Twiss, _Lawyers and the Constitution, How Laissez Faire

Came to the Supreme Court_, 141-173 (1942).

[69] _See_ especially Lochner _v._ New York, 198 U.S. 45 (1905); and

Adkins _v._ Children's Hospital, 261 U.S. 525 (1923).

[70] 169 U.S. 466; ibid. 366.

[71] _See_ Charles W. Collins, _The Fourteenth Amendment and the

States_, 188-206 (1912).

[72] Labor Board _v._ Jones & Laughlin, 301 U.S. 1, 33-34; West Coast

Hotel Co. _v._ Parrish, 300 U.S. 379, 391-392.

[73] 268 U.S. 652, 666; _cf._ Prudential Ins. Co. _v._ Cheek, 259 U.S.

530, 543 (1922).

[74] The subject can be pursued in detail in connection with Amendment

I, pp. 769-810.

[75] These cases are treated in the text, _see_ Table of Cases.

[76] _See_ Williams _v._ United States, 341 U.S. 97 (1951).

[77] _See:_ Oliver Wendell Holmes, _Collected Legal Papers_, 239,

295-296 (1920); Merlo J. Pusey, _Charles Evans Hughes_, I, 203-206

(1951). Burns Baking Co. _v._ Bryan, 204 U.S. 504, 534 (1924); Baldwin

_v._ Missouri, 281 U.S. 586, 595 (1930); _American Political Science

Review_, xii, 241 (1918); _New York Times_, February 12, 1930. It was

also during the same period that Judge Andrew A. Bruce of North Dakota

wrote: "We are governed by our judges and not by our legislatures.... It

is our judges who formulate our public policies and our basic law". _The

American Judge_, 6, 8 (1924). Substantially contemporaneously a well

read French critic described our system as _Le Gouvernment des Juges_

(1921); while toward the end of the period Louis B. Boudin published his

well known _Government by Judiciary_ (2 vols., 1932).

[78] _Collected Legal Papers_, 295-296.

CONTENTS

[For contents in detail, see tables at beginning of each article and

amendment]

Page

Prefaces III, V

Editor's forward VII

Editor's introduction IX

Historical note on formation of the Constitution 9

Text of the Constitution (literal print) 17

Text of the amendments (literal print) 37

The Constitution, with annotations 55

The preamble 59

Article I. Legislative Department:

Section 1. The Congress 71

2. House of Representatives 87

3. Senate 91

4. Elections and meetings 92

5. Legislative proceedings 95

6. Rights of Members 99

7. Bills and resolutions 101

8. Powers of Congress 105

9. Powers denied to Congress 312

10. Powers denied to the States 325

Article II. Executive Department:

Section 1. The President 377

2. Powers and duties of the President 389

3. Miscellaneous powers and duties of the

President 462

4. Impeachment 501

Article III. Judicial Department:

Section 1. The judges, their terms, and compensation 511

2. Jurisdiction 538

3. Treason 638

Article IV. Federal relations:

Section 1. Full faith and credit given in each State 647

2. Citizens 686

3. New States and government of Territory,

etc. 697

4. Form of State government 704

Article V. Mode of amendment 707

Article VI. Miscellaneous provisions 717

Article VII. Ratification 741

Amendments to the Constitution:

Amendment 1. Religion, free speech, etc. 753

2. Bearing arms 811

3. Quartering soldiers 815

4. Searches and seizures 819

5. Rights of persons 833

6. Rights of accused in criminal prosecutions 873

7. Civil trials 887

8. Punishment for crime 899

9. Rights retained by the people 907

10. Reserved State powers 911

11. Suits against States 923

12. Election of President, etc. 937

13. Slavery and involuntary servitude 945

Section 1. Prohibition of slavery and

involuntary servitude 949

2. Power of Congress 949

14. Rights of citizens 955

Section 1. Citizenship; due process; equal

protection 963

2. Apportionment of representation 1170

3. Disqualification of officers 1173

4. Public debt; claims for loss of

slaves 1174

5. Enforcement 1175

15. Right of citizens to vote 1179

Section 1. Suffrage not to be abridged for

race, color, etc. 1183

2. Power of Congress 1183

16. Income tax 1187

17. Popular election of Senators 1203

18. Prohibition of intoxicating liquors 1209

Section 1. Prohibition of intoxicating

liquors 1213

2. Concurrent power to enforce 1213

3. Time limit on ratification 1213

19. Equal suffrage 1215

20. Commencement of the terms of the President,

Vice President, and Members of Congress,

etc. 1221

Section 1. Commencement of terms of President,

Vice President, Senators, and

Representatives 1225

2. Meeting of Congress 1225

3. Death or disqualification of

President elect 1225

4. Congress to provide for case

wherein death occurs among those

from whom House chooses a

President 1225

5. Date of effect 1226

6. Time limit on ratificn 1226

21. Repeal of Eighteenth Amendment 1227

Section 1. Repeal of prohibition 1231

2. Transportation into States

prohibited 1231

3. Time limit on ratification 1231

22. Presidential Tenure 1235

Section 1. Restriction on Number of terms 1237

2. Time limit on ratification 1237

Acts of Congress held unconstitutional in whole or in part by

the Supreme Court of the United States 1239

Table of Cases 1257

Index 1337

THE CONSTITUTION OF THE UNITED STATES OF AMERICA

HISTORICAL NOTE ON FORMATION OF THE CONSTITUTION

In June 1774, the Virginia and Massachusetts assemblies independently

proposed an intercolonial meeting of delegates from the several colonies

to restore union and harmony between Great Britain and her American

Colonies. Pursuant to these calls there met in Philadelphia in September

of that year the first Continental Congress, composed of delegates from

12 colonies. On October 14, 1774, the assembly adopted what has come to

be known as the Declaration and Resolves of the First Continental

Congress. In that instrument, addressed to His Majesty and to the people

of Great Britain, there was embodied a statement of rights and

principles, many of which were later to be incorporated in the

Declaration of Independence and the Federal Constitution.[a]

This Congress adjourned in October with a recommendation that another

Congress be held in Philadelphia the following May. Before its successor

met, the battle of Lexington had been fought. In Massachusetts the

colonists had organized their own government in defiance of the royal

governor and the Crown. Hence, by general necessity and by common

consent, the second Continental Congress assumed control of the "Twelve

United Colonies", soon to become the "Thirteen United Colonies" by the

cooperation of Georgia. It became a _de facto_ government: it called

upon the other colonies to assist in the defense of Massachusetts; it

issued bills of credit; it took steps to organize a military force, and

appointed George Washington commander in chief of the Army.

While the declaration of the causes and necessities of taking up arms of

July 6, 1775,[b] expressed a "wish" to see the union between Great

Britain and the colonies "restored", sentiment for independence was

growing. Finally, on May 15, 1776, Virginia instructed her delegates to

the Continental Congress to have that body "declare the united colonies

free and independent States."[c] Accordingly on June 7 a resolution was

introduced in Congress declaring the union with Great Britain dissolved,

proposing the formation of foreign alliances, and suggesting the

drafting of a plan of confederation to be submitted to the respective

colonies.[d] Some delegates argued for confederation first and

declaration afterwards. This counsel did not prevail. Independence was

declared on July 4, 1776; the preparation of a plan of confederation was

postponed. It was not until November 17, 1777, that the Congress was

able to agree on a form of government which stood some chance of being

approved by the separate States. The Articles of Confederation were then

submitted to the several States, and on July 9, 1778, were finally

approved by a sufficient number to become operative.

Weaknesses inherent in the Articles of Confederation became apparent

before the Revolution out of which that instrument was born had been

concluded. Even before the thirteenth State (Maryland) conditionally

joined the "firm league of friendship" on March 1, 1781, the need for a

revenue amendment was widely conceded. Congress under the Articles

lacked authority to levy taxes. She could only request the States to

contribute their fair share to the common treasury, but the requested

amounts were not forthcoming. To remedy this defect, Congress applied to

the States for power to lay duties and secure the public debts. Twelve

States agreed to such an amendment, but Rhode Island refused her

consent, thereby defeating the proposal.

Thus was emphasized a second weakness in the Articles of Confederation,

namely, the _liberum veto_ which each State possessed whenever

amendments to that instrument were proposed. Not only did all amendments

have to be ratified by each of the 13 States, but all important

legislation needed the approval of 9 States. With several delegations

often absent, one or two States were able to defeat legislative

proposals of major importance.

Other imperfections in the Articles of Confederation also proved

embarrassing. Congress could, for example, negotiate treaties with

foreign powers, but all treaties had to be ratified by the several

States. Even when a treaty was approved, Congress lacked authority to

secure obedience to its stipulations. Congress could not act directly

upon the States or upon individuals. Under such circumstances foreign

nations doubted the value of a treaty with the new republic.

Furthermore, Congress had no authority to regulate foreign or interstate

commerce. Legislation in this field, subject to unimportant exceptions,

was left to the individual States. Disputes between States with common

interests in the navigation of certain rivers and bays were inevitable.

Discriminatory regulations were followed by reprisals.

Virginia, recognizing the need for an agreement with Maryland respecting

the navigation and jurisdiction of the Potomac River, appointed in June

1784, four commissioners to "frame such liberal and equitable

regulations concerning the said river as may be mutually advantageous to

the two States." Maryland in January 1785 responded to the Virginia

resolution by appointing a like number of commissioners[e] "for the

purpose of settling the navigation and jurisdiction over that part of

the bay of Chesapeake which lies within the limits of Virginia, and over

the rivers Potomac and Pocomoke" with full power on behalf of Maryland

"to adjudge and settle the jurisdiction to be exercised by the said

States, respectively, over the waters and navigations of the same."[f]

At the invitation of Washington the commissioners met at Mount Vernon,

in March 1785, and drafted a compact which, in many of its details

relative to the navigation and jurisdiction of the Potomac, is still in

force.[g] What is more important, the commissioners submitted to their

respective States a report in favor of a convention of all the States

"to take into consideration the trade and commerce" of the

Confederation. Virginia, in January 1786, advocated such a convention,

authorizing its commissioners to meet with those of other States, at a

time and place to be agreed on, "to take into consideration the trade of

the United States; to examine the relative situations and trade of the

said States; to consider how far a uniform system in their commercial

regulations may be necessary to their common interest and their

permanent harmony; and to report to the several States, such an act

relative to this great object, as when unanimously ratified by them,

will enable the United States in Congress, effectually to provide for

the same."[h]

This proposal for a general trade convention seemingly met with general

approval; nine States appointed commissioners. Under the leadership of

the Virginia delegation, which included Randolph and Madison, Annapolis

was accepted as the place and the first Monday in September 1786 as the

time for the convention. The attendance at Annapolis proved

disappointing. Only five States--Virginia, Pennsylvania, Delaware, New

Jersey, and New York--were represented; delegates from Massachusetts,

New Hampshire, North Carolina, and Rhode Island failed to attend.

Because of the small representation, the Annapolis convention did not

deem "it advisable to proceed on the business of their mission." After

an exchange of views, the Annapolis delegates unanimously submitted to

their respective States a report in which they suggested that a

convention of representatives from all the States meet at Philadelphia

on the second Monday in May 1787 to examine the defects in the existing

system of government and formulate "a plan for supplying such defects as

may be discovered."[i]

The Virginia legislature acted promptly upon this recommendation and

appointed a delegation to go to Philadelphia. Within a few weeks New

Jersey, Pennsylvania, North Carolina, Delaware, and Georgia also made

appointments. New York and several other States hesitated on the ground

that, without the consent of the Continental Congress, the work of the

convention would be extra-legal; that Congress alone could propose

amendments to the Articles of Confederation. Washington was quite

unwilling to attend an irregular convention. Congressional approval of

the proposed convention became, therefore, highly important. After some

hesitancy Congress approved the suggestion for a convention at

Philadelphia "for the sole and express purpose of revising the Articles

of Confederation and reporting to Congress and the several legislatures

such alterations and provisions therein as shall when agreed to in

Congress and confirmed by the States render the Federal Constitution

adequate to the exigencies of Government and the preservation of the

Union."

Thereupon, the remaining States, Rhode Island alone excepted, appointed

in due course delegates to the Convention, and Washington accepted

membership on the Virginia delegation.

Although scheduled to convene on May 14, 1787, it was not until May 25

that enough delegates were present to proceed with the organization of

the Convention. Washington was elected as presiding officer. It was

agreed that the sessions were to be strictly secret.

On May 29 Randolph, on behalf of the Virginia delegation, submitted to

the convention 15 propositions as a plan of government. Despite the fact

that the delegates were limited by their instructions to a revision of

the Articles, Virginia had really recommended a new instrument of

government. For example, provision was made in the Virginia plan for the

separation of the three branches of government; under the Articles

executive, legislative, and judicial powers were vested in the Congress.

Furthermore the legislature was to consist of two houses rather than

one.

On May 30 the Convention went into a committee of the whole to consider

the 15 propositions of the Virginia plan _seriatim_. These discussions

continued until June 13, when the Virginia resolutions in amended form

were reported out of committee. They provided for proportional

representation in both houses. The small States were dissatisfied.

Therefore, on June 14 when the Convention was ready to consider the

report on the Virginia plan, Paterson of New Jersey requested an

adjournment to allow certain delegations more time to prepare a

substitute plan. The request was granted, and on the next day Paterson

submitted nine resolutions embodying important changes in the Articles

of Confederation, but strictly amendatory in nature. Vigorous debate

followed. On June 19 the States rejected the New Jersey plan and voted

to proceed with a discussion of the Virginia plan. The small States

became more and more discontented; there were threats of withdrawal. On

July 2 the convention was deadlocked over giving each State an equal

vote in the upper house--five States in the affirmative, five in the

negative, one divided.[j]

The problem was referred to a committee of 11, there being 1 delegate

from each State, to effect a compromise. On July 5 the committee

submitted its report, which became the basis for the "great compromise"

of the convention. It was recommended that in the upper house each State

should have an equal vote, that in the lower branch each State should

have one representative for every 40,000 inhabitants, counting

three-fifths of the slaves, that money bills should originate in the

lower house (not subject to amendment by the upper chamber). When on

July 12 the motion of Gouverneur Morris of Pennsylvania that direct

taxation should also be in proportion to representation, was adopted, a

crisis had been successfully surmounted. A compromise spirit began to

prevail. The small States were now willing to support a strong national

government.

Debates on the Virginia resolutions continued. The 15 original

resolutions had been expanded into 23. Since these resolutions were

largely declarations of principles, on July 24 a committee of five[k]

was selected to draft a detailed constitution embodying the fundamental

principles which had thus far been approved. The Convention adjourned

from July 26 to August 6 to await the report of its committee of detail.

This committee, in preparing its draft of a Constitution, turned for

assistance to the State constitutions, to the Articles of Confederation,

to the various plans which had been submitted to the Convention and

other available material. On the whole the report of the committee

conformed to the resolutions adopted by the Convention, though on many

clauses the members of the committee left the imprint of their

individual and collective judgments. In a few instances the committee

avowedly exercised considerable discretion.

From August 6 to September 10 the report of the committee of detail was

discussed, section by section, clause by clause. Details were attended

to, further compromises were effected. Toward the close of these

discussions, on September 8, another committee of five[l] was appointed

"to revise the style of and arrange the articles which had been agreed

to by the house."

On Wednesday, September 12 the report of the committee of style was

ordered printed for the convenience of the delegates. The Convention for

3 days compared this report with the proceedings of the Convention. The

Constitution was ordered engrossed on Saturday, September 15.

The Convention met on Monday, September 17, for its final session.

Several of the delegates were disappointed in the result. A few deemed

the new Constitution a mere makeshift, a series of unfortunate

compromises. The advocates of the Constitution, realizing the impending

difficulty of obtaining the consent of the States to the new instrument

of Government, were anxious to obtain the unanimous support of the

delegations from each State. It was feared that many of the delegates

would refuse to give their individual assent to the Constitution.

Therefore, in order that the action of the convention would appear to be

unanimous, Gouverneur Morris devised the formula "Done in Convention, by

the unanimous consent of the States present the 17th of September * * *

In witness whereof we have hereunto subscribed our names." Thirty-nine

of the forty-two delegates present thereupon "subscribed" to the

document.[m]

The Convention had been called to revise the Articles of Confederation.

Instead, it reported to the Continental Congress a new Constitution.

Furthermore, while the Articles specified that no amendments should be

effective until approved by the legislatures of all the States, the

Philadelphia Convention suggested that the new Constitution should

supplant the Articles of Confederation when ratified by conventions in

nine States. For these reasons, it was feared that the new Constitution

might arouse opposition in Congress.

Three members of the Convention--Madison, Gorham, and King--were also

Members of Congress. They proceeded at once to New York, where Congress

was in session, to placate the expected opposition. Aware of their

vanishing authority, Congress on September 28, after some debate,

decided to submit the Constitution to the States for action. It made no

recommendation for or against adoption.

Two parties soon developed, one in opposition and one in support of the

Constitution, and the Constitution was debated, criticized, and

expounded clause by clause. Hamilton, Madison, and Jay wrote a series of

commentaries, now known as the Federalist Papers, in support of the new

instrument of government.[n] The closeness and bitterness of the

struggle over ratification and the conferring of additional powers on

the central government can scarcely be exaggerated. In some States

ratification was effected only after a bitter struggle in the State

convention itself.

Delaware, on December 7, 1787, became the first State to ratify the new

Constitution, the vote being unanimous. Pennsylvania ratified on

December 12, 1787, by a vote of 46 to 23, a vote scarcely indicative of

the struggle which had taken place in that State. New Jersey ratified on

December 19, 1787, and Georgia on January 2, 1788, the vote in both

States being unanimous. Connecticut ratified on January 9, 1788; yeas

128, nays 40. On February 6, 1788, Massachusetts, by a narrow margin of

19 votes in a convention with a membership of 355, endorsed the new

Constitution, but recommended that a bill of rights be added to protect

the States from Federal encroachment on individual liberties. Maryland

ratified on April 28, 1788; yeas 63, nays 11. South Carolina ratified on

May 23, 1788; yeas 149, nays 73. On June 21, 1788, by a vote of 57 to

46, New Hampshire became the ninth State to ratify, but like

Massachusetts she suggested a bill of rights.

By the terms of the Constitution nine States were sufficient for its

establishment among the States so ratifying. The advocates of the new

Constitution realized, however, that the new government could not

succeed without the addition of New York and Virginia, neither of which

had ratified. Madison, Marshall, and Randolph led the struggle for

ratification in Virginia. On June 25, 1788, by a narrow margin of 10

votes in a convention of 168 members, that State ratified over the

objection of such delegates as George Mason and Patrick Henry. In New

York an attempt to attach conditions to ratification almost succeeded.

But on July 26, 1788, New York ratified, with a recommendation that a

bill of rights be appended. The vote was close--yeas 30, nays 27.

Eleven States having thus ratified the Constitution,[o] the Continental

Congress--which still functioned at irregular intervals--passed a

resolution on September 13, 1788, to put the new Constitution into

operation. The first Wednesday of January 1789 was fixed as the day for

choosing presidential electors, the first Wednesday of February for the

meeting of electors, and the first Wednesday of March (i.e. March 4,

1789) for the opening session of the new Congress. Owing to various

delays, Congress was late in assembling, and it was not until April 30,

1789, that George Washington was inaugurated as the first President of

the United States.

Notes

[a] The colonists, for example, claimed the right "to life, liberty, and

property", "the rights, liberties, and immunities of free and

natural-born subjects within the realm of England"; the right to

participate in legislative councils; "the great and inestimable

privilege of being tried by their peers of the vicinage, according to

the course of [the common law of England]"; "the immunities and

privileges granted and confirmed to them by royal charters, or secured

by their several codes of provincial laws"; "a right peaceably to

assemble, consider of their grievances, and petition the king." They

further declared that the keeping of a standing army in the colonies in

time of peace without the consent of the colony in which the army was

kept was "against law"; that it was "indispensably necessary to good

government, and rendered essential by the English constitution, that the

constituent branches of the legislature be independent of each other";

that certain acts of Parliament in contravention of the foregoing

principles were "infringements and violations of the rights of the

colonists." (Text in Documents Illustrative of the Formation of the

Union, pp. 1-5.)

[b] Text in Documents Illustrative of the Formation of the Union, pp.

10-17.

[c] Ibid., pp. 19-20.

[d] Ibid., p. 21.

[e] George Mason, Edmund Randolph, James Madison, and Alexander

Henderson were appointed commissioners for Virginia; Thomas Johnson,

Thomas Stone, Samuel Chase, and Daniel of St. Thomas Jenifer for

Maryland.

[f] The text of the resolutions is to be found in 153 U.S. 162-163.

[g] See Wharton _v._ Wise, 153 U.S. 155 [1894].

[h] Text in Documents Illustrative of the Formation of the Union, p. 38.

[i] Ibid., pp. 39-43.

[j] The New Hampshire delegation did not arrive until July 23, 1787.

[k] Rutledge of South Carolina, Randolph of Virginia, Gorham of

Massachusetts, Ellsworth of Connecticut, and Wilson of Pennsylvania.

[l] William Samuel Johnson of Connecticut, Alexander Hamilton of New

York, Gouverneur Morris of Pennsylvania, James Madison of Virginia, and

Rufus King, of Massachusetts.

[m] At least 65 persons had received appointments as delegates to the

Convention; 55 actually attended at different times during the course of

the proceedings; 39 signed the document. It has been estimated that

generally fewer than 30 delegates attended the daily sessions. For

further details respecting the Convention of 1787 _see_: Elliott,

Debates; Farrand, Records of the Constitutional Conventions; Farrand,

The Framing of the Constitution; Meigs, Growth of the Constitution.

[n] These commentaries on the Constitution, written during the struggle

for ratification, have been frequently cited by the Supreme Court as an

authoritative contemporary interpretation of the meaning of its

provisions.

[o] North Carolina added her ratification on November 21, 1789; yeas

184, nays 77. Rhode Island did not ratify until May 29, 1790; yeas 34,

nays 32.

THE CONSTITUTION OF THE UNITED STATES OF AMERICA

LITERAL PRINT

CONSTITUTION OF THE UNITED STATES

We the People of the United States, in Order to form a more perfect

Union, establish Justice, insure domestic Tranquility, provide for the

common defence, promote the general Welfare, and secure the Blessings of

Liberty to ourselves and our Posterity, do ordain and establish this

Constitution for the United States of America.

Article. I.

Section. 1. All legislative Powers herein granted shall be vested in a

Congress of the United States, which shall consist of a Senate and House

of Representatives.