THE LIMITATIONS OF THE JUDICIAL FUNCTION
Taking the human race collectively, its ideal of a court of justice has
been the omniscient and inexorable judgment seat of God. Individually,
on the contrary, they have dearly loved favor. Hence the doctrine of the
Intercession of the Saints, which many devout persons have sincerely
believed could be bought by them for money. The whole development of
civilization may be followed in the oscillation of any given society
between these two extremes, the many always striving to so restrain the
judiciary that it shall be unable to work the will of the favored few.
On the whole, success in attaining to ideal justice has not been quite
commensurate with the time and effort devoted to solving the problem,
but, until our constitutional experiment was tried in America, I think
it had been pretty generally admitted that the first prerequisite to
success was that judges should be removed from political influences.
For the main difficulty has been that every dominant class, as it has
arisen, has done its best to use the machinery of justice for its own
benefit.
No argument ever has convinced like a parable, and a very famous story
in the Bible will illustrate the great truth, which is the first lesson
that a primitive people learns, that unless the judge can be separated
from the sovereign, and be strictly limited in the performance of his
functions by a recognized code of procedure, the public, as against the
dominant class, has, in substance, no civil rights. The kings of Israel
were judges of last resort. Solomon earned his reputation for wisdom in
the cause in which two mothers claimed the same child. They were indeed
both judge and jury. Also they were prosecuting officers. Also they were
sheriffs. In fine they exercised unlimited judicial power, save in so
far as they were checked by the divine interference usually signified
through some prophet.
Now David was, admittedly, one of the best sovereigns and judges who
ever held office in Jerusalem, and, in the days of David, Nathan was the
leading prophet of the dominant political party. "And it came to pass
in an eveningtide, that David arose from off his bed, and walked upon
the roof of the king's house: and from the roof he saw a woman washing
herself; and the woman was very beautiful to look upon. And David sent
and enquired after the woman. And one said, Is not this Bath-sheba, the
daughter of Eliam, the wife of Uriah the Hittite? And David sent
messengers, and took her; and she came in unto him, and he lay with her;
... and she returned unto her house."
Uriah was serving in the army under Joab. David sent for Uriah, and told
him to go home to his wife, but Uriah refused. Then David wrote a letter
to Joab and dismissed Uriah, ordering him to give the letter to Joab.
And David "wrote in the letter, saying, Set ye Uriah in the forefront of
the hottest battle, and retire ye from him, that he may be smitten and
die....
"And the men of the city went out and fought with Joab; and there fell
some of the people of the servants of David; and Uriah the Hittite died
also.... But the thing that David had done displeased the Lord.
"And the Lord sent Nathan unto David. And he came unto him, and said
unto him, There were two men in one city; the one rich and the other
poor. The rich man had exceeding many flocks and herds:
"But the poor man had nothing, save one little ewe lamb, which he had
bought and nourished up: and it grew up together with him, and with his
children; it did eat of his own meat and drank of his own cup, and lay
in his bosom, and was unto him as a daughter.
"And there came a traveller unto the rich man, and he spared to take of
his own flock, ... but took the poor man's lamb, and dressed it for the
man that was come to him.
"And David's anger was greatly kindled against the man; and he said to
Nathan, As the Lord liveth, the man that hath done this thing shall
surely die: ...
"And Nathan said to David, Thou art the man. Thus saith the Lord God of
Israel ... Now therefore the sword shall never depart from thine house;
because thou has despised me ... Behold, I will raise up evil against
thee out of thine own house, and I will take thy wives before thine
eyes, and give them unto thy neighbor." Here, as the heading to the
Twelfth Chapter of Second Book of Samuel says, "Nathan's parable of the
ewe lamb causeth David to be his own judge," but the significant part of
the story is that Nathan, with all his influence, could not force David
to surrender his prey. David begged very hard to have his sentence
remitted, but, for all that, "David sent and fetched [Bathsheba] to his
house, and she became his wife, and bare him a son." Indeed, she bore
him Solomon. As against David or David's important supporters men like
Uriah had no civil rights that could be enforced.
Even after the judicial function is nominally severed from the executive
function, so that the sovereign himself does not, like David and
Solomon, personally administer justice, the same result is reached
through agents, as long as the judge holds his office at the will of the
chief of a political party.
To go no farther afield, every page of English history blazons this
record. Long after the law had taken an almost modern shape, Alice
Perrers, the mistress of Edward III, sat on the bench at Westminster and
intimidated the judges into deciding for suitors who had secured her
services. The chief revenue of the rival factions during the War of the
Roses was derived from attainders, indictments for treason, and
forfeitures, avowedly partisan. Henry VII used the Star Chamber to ruin
the remnants of the feudal aristocracy. Henry VIII exterminated as
vagrants the wretched monks whom he had evicted. The prosecutions under
Charles I largely induced the Great Rebellion; and finally the limit of
endurance was reached when Charles II made Jeffreys Chief Justice of
England in order to kill those who were prominent in opposition. Charles
knew what he was doing. "That man," said he of Jeffreys, "has no
learning, no sense, no manners, and more impudence than ten carted
street-walkers." The first object was to convict Algernon Sidney of
treason. Jeffreys used simple means. Usually drunk, his court resembled
the den of a wild beast. He poured forth on "plaintiffs and defendants,
barristers and attorneys, witnesses and jurymen, torrents of frantic
abuse, intermixed with oaths and curses." The law required proof of an
_overt act_ of treason. Many years before Sidney had written a
philosophical treatise touching resistance by the subject to the
sovereign, as a constitutional principle. But, though the fragment
contained nothing more than the doctrines of Locke, Sidney had
cautiously shown it to no one, and it had only been found by searching
his study. Jeffreys told the jury that if they believed the book to be
Sidney's book, written by him, they must convict for _scribere est
agere_, to write is to commit an overt act.
A revolution followed upon this and other like convictions, as
revolutions have usually followed such uses of the judicial power. In
that revolution the principle of the limitation of the judicial function
was recognized, and the English people seriously addressed themselves to
the task of separating their courts from political influences, of
protecting their judges by making their tenure and their pay permanent,
and of punishing them by removal if they behaved corruptly, or with
prejudice, or transcended the limits within which their duty confined
them. Jeffreys had legislated when he ruled it to be the law that, to
write words secretly in one's closet, is to commit an overt act of
treason, and he did it to kill a man whom the king who employed him
wished to destroy. This was to transcend the duty of a judge, which is
to expound and not to legislate. The judge may develop a principle, he
may admit evidence of a custom in order to explain the intentions of the
parties to a suit, as Lord Mansfield admitted evidence of the customs of
merchants, but he should not legislate. To do so, as Jeffreys did in
Sidney's case, is tantamount to murder. Jeffreys never was duly punished
for his crimes. He died the year after the Revolution, in the Tower,
maintaining to the last that he was innocent in the sight of God and man
because "all the blood he had shed fell short of the King's command."
And Jeffreys was perfectly logical and consistent in his attitude. A
judiciary is either an end in itself or a means to an end. If it be
designed to protect the civil rights of citizens indifferently, it must
be free from pressure which will deflect it from this path, and it can
only be protected from the severest possible pressure by being removed
from politics, because politics is the struggle for ascendancy of a
class or a majority. If, on the other hand, the judiciary is to serve as
an instrument for advancing the fortunes of a majority or a dominant
class, as David used the Jewish judiciary, or as the Stuarts used the
English judiciary, then the judicial power must be embodied either in a
military or political leader, like David, who does the work himself, or
in an agent, more or less like Jeffreys, who will obey his orders. In
the colonies the subserviency of the judges to the Crown had been a
standing grievance, and the result of this long and terrible experience,
stretching through centuries both in Europe and America, had been to
inspire Americans with a fear of intrusting power to any man or body of
men. They sought to limit everything by written restrictions. Setting
aside the objection that such a system is mechanically vicious because
it involves excessive friction and therefore waste of energy, it is
obviously futile unless the written restrictions can be enforced, and
enforced in the spirit in which they are drawn. Hamilton, whose instinct
for law resembled genius, saw the difficulty and pointed out in the
_Federalist_ that it is not a writing which can give protection, but
only the intelligence and the sense of justice of the community itself.
"The truth is, that the general genius of a Government is all that can
be substantially relied upon for permanent effects. Particular
provisions, though not altogether useless, have far less virtue and
efficiency than are commonly ascribed to them; and the want of them will
never be, with men of sound discernment, a decisive objection to any
plan which exhibits the leading characters of a good Government." After
an experience of nearly a century and a quarter we must admit, I think,
that Hamilton was right. In the United States we have carried bills of
right and constitutional limitations to an extreme, and yet, I suppose
that few would care to maintain that, during the nineteenth century,
life and property were safer in America, or crime better dealt with,
than in England, France, or Germany. The contrary, indeed, I take to be
the truth, and I think one chief cause of this imperfection in the
administration of justice will be found to have been the operation of
the written Constitution. For, under the American system, the
Constitution, or fundamental law, is expounded by judges, and this
function, which, in essence, is political, has brought precisely that
quality of pressure on the bench which it has been the labor of a
hundred generations of our ancestors to remove. On the whole the result
has been not to elevate politics, but to lower the courts toward the
political level, a result which conforms to the _a priori_ theory.
The abstract virtue of the written Constitution was not, however, a
question in issue when Washington and his contemporaries set themselves
to reorganize the Confederation. Those men had no choice but to draft
some kind of a platform on which the states could agree to unite, if
they were to unite peacefully at all, and accordingly they met in
convention and drew the best form of agreement they could; but I more
than suspect that a good many very able Federalists were quite alive to
the defects in the plan which they adopted.
Hamilton was outspoken in preferring the English model, and I am not
aware that Washington ever expressed a preference for the theory that,
because of a written fundamental law, the court should nullify
legislation. Nor is it unworthy of remark that all foreigners, after a
prolonged and attentive observation of our experiment, have avoided it.
Since 1789, every highly civilized Western people have readjusted their
institutions at least once, yet not one has in this respect imitated
us, though all have borrowed freely from the parliamentary system of
England.[6]
Even our neighbor, Canada, with no adverse traditions and a population
similar to ours, has been no exception to the rule. The Canadian courts
indeed define the limits of provincial and federal jurisdiction as fixed
under an act of Parliament, but they do not pretend to limit the
exercise of power when the seat of power has been established. I take
the cause of this distrust to be obvious. Although our written
Constitution was successful in its primary purpose of facilitating the
consolidation of the Confederation, it has not otherwise inspired
confidence as a practical administrative device. Not only has constant
judicial interference dislocated scientific legislation, but casting the
judiciary into the vortex of civil faction has degraded it in the
popular esteem. In fine, from the outset, the American bench, because it
deals with the most fiercely contested of political issues, has been an
instrument necessary to political success. Consequently, political
parties have striven to control it, and therefore the bench has always
had an avowed partisan bias. This avowed political or social bias has, I
infer, bred among the American people the conviction that justice is not
administered indifferently to all men, wherefore the bench is not
respected with us as, for instance, it is in Great Britain, where law
and politics are sundered. Nor has the dissatisfaction engendered by
these causes been concealed. On the contrary, it has found expression
through a series of famous popular leaders from Thomas Jefferson to
Theodore Roosevelt.
The Constitution could hardly have been adopted or the government
organized but for the personal influence of Washington, whose power lay
in his genius for dealing with men. He lost no time or strength in
speculation, but, taking the Constitution as the best implement at hand,
he went to the work of administration by including the representatives
of the antagonistic extremes in his Cabinet. He might as well have
expected fire and water to mingle as Jefferson and Hamilton to
harmonize. Probably he had no delusions on that head when he chose them
for his ministers, and he accomplished his object. He paralyzed
opposition until the new mechanism began to operate pretty regularly,
but he had not an hour to spare. Soon the French Revolution heated
passions so hot that long before Washington's successor was elected the
United States was rent by faction.
The question which underlay all other questions, down to the Civil War,
was the determination of the seat of sovereignty. Hamilton and the
Federalists held it to be axiomatic that, if the federal government were
to be more than a shadow, it must interpret the meaning of the
instrument which created it, and, if so, that it must signify its
decisions through the courts. Only in this way, they argued, could
written limitations on legislative power be made effective. Only in this
way could statutes which contravened the Constitution be set aside.[7]
Jefferson was abroad when Hamilton wrote _The Federalist_, but his views
have since been so universally accepted as embodying the opposition to
Hamilton, that they may be conveniently taken as if they had been
published while the Constitution was under discussion. Substantially
the same arguments were advanced by others during the actual debate, if
not quite so lucidly or connectedly then, as afterward by him.
Very well, said Jefferson, in answer to Hamilton, admitting, for the
moment, that the central government shall define its own powers, and
that the courts shall be the organ through which the exposition shall be
made, both of which propositions I vehemently deny, you have this
result: The judges who will be called upon to pass upon the validity of
national and state legislation will be plunged in the most heated of
controversies, and in those controversies they cannot fail to be
influenced by the same passions and prejudices which sway other men. In
a word they must decide like legislators, though they will be exempt
from the responsibility to the public which controls other legislators.
Such conditions you can only meet by making the judicial tenure of
office ephemeral, as all legislative tenure is ephemeral.
It is vain to pretend, continued he, in support of fixity of tenure,
that the greater the pressure on the judge is likely to be, the more
need there is to make him secure. This may be true of judges clothed
with ordinary attributes, like English judges, for, should these try to
nullify the popular will by construing away statutes, Parliament can
instantly correct them, or if Parliament fail in its duty, the
constituencies, at the next election, can intervene. But no one will be
able to correct the American judge who may decline to recognize the law
which would constrain him. Nothing can shake him save impeachment for
what is tantamount to crime, or being overruled by a constitutional
amendment which you have purposely made too hard to obtain to be a
remedy. He is to be judge in his own case without an appeal.
Nowhere in all his long and masterly defence of the Constitution did
Hamilton show so much embarrassment as here, and because, probably, he
did not himself believe in his own brief. He really had faith in the
English principle of an absolute parliament, restrained, if needful, by
a conservative chamber, like the House of Lords, but not in the total
suspension of sovereignty subject to judicial illumination. Consequently
he fell back on platitudes about judicial high-mindedness, and how
judges could be trusted not to allow political influences to weigh with
them when deciding political questions. Pushed to its logical end,
concluded he, the Jeffersonian argument would prove that there should be
no judges distinct from legislatures.[8]
Now, at length, exclaimed the Jeffersonian in triumph, you admit our
thesis. You propose to clothe judges with the highest legislative
functions, since you give them an absolute negative on legislation, and
yet you decline to impose on them the responsibility to a constituency,
which constrains other legislators. Clearly you thus make them
autocratic, and in the worst sense, for you permit small bodies of
irresponsible men under pretence of dispensing justice, but really in a
spirit of hypocrisy, to annul the will of the majority of the people,
even though the right of the people to exercise their will, in the
matters at issue, be clearly granted them in the Constitution.
No, rejoined Hamilton, thus driven to the wall, judges never will so
abuse their trust. The duty of the judge requires him to suppress his
_will_, and exercise his _judgment_ only. The Constitution will be
before him, and he will have only to say whether authority to legislate
on a given subject is granted in that instrument. If it be, the
character of the legislation must remain a matter of legislative
discretion. Besides, you must repose confidence somewhere, and judges,
on the whole, are more trustworthy than legislators. How can you say
that, retorted the opposition, when you, better than most men, know the
line of despotic legal precedents from the Ship Money down to the Writs
of Assistance?
Looking back upon this initial controversy touching judicial functions
under the Constitution, we can hardly suppose that Hamilton did not
perceive that, in substance, Jefferson was right, and that a bench
purposely constructed to pass upon political questions must be
politically partisan. He knew very well that, if the Federalists
prevailed in the elections, a Federalist President would only appoint
magistrates who could be relied on to favor consolidation. And so the
event proved. General Washington chose John Jay for the first Chief
Justice, who in some important respects was more Federalist than
Hamilton, while John Adams selected John Marshall, who, though one of
the greatest jurists who ever lived, was hated by Jefferson with a
bitter hatred, because of his political bias. As time went on matters
grew worse. Before Marshall died slavery had become a burning issue, and
the slave-owners controlled the appointing power. General Jackson
appointed Taney to sustain the expansion of slavery, and when the
anti-slavery party carried the country with Lincoln, Lincoln supplanted
Taney with Chase, in order that Chase might stand by him in his struggle
to destroy slavery. And as it has been, so must it always be. As long as
the power to enact laws shall hinge on the complexion of benches of
judges, so long will the ability to control a majority of the bench be
as crucial a political necessity as the ability to control a majority in
avowedly representative assemblies.
Hamilton was one of the few great jurists and administrators whom
America has ever produced, and it is inconceivable that he did not
understand what he was doing. He knew perfectly well that, other things
being equal, the simplest administrative mechanism is the best, and he
knew also that he was helping to make an extremely complicated
mechanism. Not only so, but at the heart of this complexity lay the
gigantic cog of the judiciary, which was obviously devised to stop
movement. He must have had a reason, beyond the reason he gave, for not
only insisting on clothing the judiciary with these unusual political
and legislative attributes, but for giving the judiciary an
unprecedented fixity of tenure. I suspect that he was actuated by some
such considerations as these:
The Federalists, having pretty good cause to suppose themselves in a
popular minority, purposed to consolidate the thirteen states under a
new sovereign. There were but two methods by which they could prevail;
they could use force, or, to secure assent, they could propose some
system of arbitration. To escape war the Federalists convened the
constitutional convention, and by so doing pledged themselves to
arbitration. But if their plan of consolidation were to succeed, it was
plain that the arbitrator must arbitrate in their favor, for if he
arbitrated as Mr. Jefferson would have wished, the United States under
the Constitution would have differed little from the United States under
the Confederation. The Federalists, therefore, must control the
arbitrator. If the Constitution were to be adopted, Hamilton and every
one else knew that Washington would be the first President, and
Washington could be relied on to appoint a strong Federalist bench.
Hence, whatever might happen subsequently, when the new plan first
should go into operation, and when the danger from insubordination among
the states would probably be most acute, the judiciary would be made to
throw its weight in favor of consolidation, and against disintegration,
and, if it did so, it was essential that it should be protected against
anything short of a revolutionary attack.
In the convention, indeed, Charles Pinckney of South Carolina suggested
that Congress should be empowered to negative state legislation, but
such an alternative, for obvious reasons, would have been less palatable
to Hamilton, since Congress would be only too likely to fall under the
control of the Jeffersonian party, while a bench of judges, if once well
chosen, might prove to be for many years an "excellent barrier to the
encroachments and oppressions of the representative body."[9]
I infer that Hamilton and many other Federalists reasoned somewhat thus,
not only from what they wrote, but from the temper of their minds, and,
if they did, events largely justified them. John Jay, Oliver Ellsworth,
and John Marshall were successively appointed to the office of Chief
Justice, nor did the complexion of the Supreme Court change until after
1830.
What interests us, however, is not so much what the Federalists thought,
or the motives which actuated them, as the effect which the clothing of
the judiciary with political functions has had upon the development of
the American republic, more especially as that extreme measure might
have been avoided, had Pinckney's plan been adopted. Nor, looking back
upon the actual course of events, can I perceive that, so far as the
movement toward consolidation was concerned, the final result would have
varied materially whether Congress or the Supreme Court had exercised
control over state legislation. Marshall might just as well, in the one
case as the other, have formulated his theory of a semi-centralized
administration. He would only have had uniformly to sustain Congress, as
an English judge sustains Parliament. Nor could either Congress or the
Court have reached a definite result without an appeal to force. Either
chamber might expound a theory, but nothing save an army could establish
it.
For two generations statesmen and jurists debated the relation of the
central to the local sovereignties with no result, for words alone could
decide no such issue. In America, as elsewhere, sovereignty is
determined by physical force. Marshall could not conquer Jefferson, he
could at most controvert Jefferson's theory. This he did, but, in doing
so, I doubt if he were quite true to himself. Jefferson contended that
every state might nullify national legislation, as conversely Pinckney
wished Congress to be given explicitly the power to nullify state
legislation; and Marshall, very sensibly, pointed out that, were
Jefferson's claim carried into practice, it would create "a hydra in
government,"[10] yet I am confident that Marshall did not appreciate
whither his own assertion of authority must lead. In view of the victory
of centralization in the Civil War, I will agree that the Supreme Court
might have successfully maintained a position as arbitrator touching
conflicting jurisdictions, as between the nation and the states, but
that is a different matter from assuming to examine into the wisdom of
the legislation itself. The one function might, possibly, pass by
courtesy as judicial; the other is clearly legislative.
This distinction only developed after Marshall's death, but the
resentment which impelled Marshall to annul an act of Congress was
roused by the political conflict which preceded the election of 1800, in
which Marshall took a chief part. Apparently he could not resist the
temptation of measuring himself with his old adversary, especially as he
seems to have thought that he could discredit that adversary without
giving him an opportunity to retaliate.
In 1798 a Federalist Congress passed the Alien and Sedition Acts, whose
constitutionality no Federalist judge ever doubted, but which Jefferson
considered as clearly a violation of the fundamental compact, since they
tended to drive certain states, as he thought, into "revolution and
blood." Under this provocation Jefferson proclaimed that it was both the
right and the duty of any state, which felt itself aggrieved, to
intervene to arrest "the progress of the evil," within her territory,
by declining to execute, or by "nullifying," the objectionable statutes.
As Jefferson wrote the Kentucky Resolutions in 1798 and was elected
President in 1800, the people at least appeared to have sustained him in
his exposition of the Constitution, before he entered into office.
At this distance of time we find it hard to realize what the election of
1800 seemed to portend to those who participated therein. Mr. Jefferson
always described it as amounting to a revolution as profound as, if less
bloody than, the revolution of 1776, and though we maybe disposed to
imagine that Jefferson valued his own advent to power at its full worth,
it must be admitted that his enemies regarded it almost as seriously.
Nor were they without some justification, for Jefferson certainly
represented the party of disintegration. "Nullification" would have been
tantamount to a return to the condition of the Confederation. Besides,
Jefferson not so many years before had written, in defence of Shays's
rebellion, that the tree of Liberty could never flourish unless
refreshed occasionally with the blood of patriots and tyrants. To most
Federalists Jefferson seemed a bloodthirsty demagogue. In 1796 Oliver
Ellsworth had been appointed Chief Justice by General Washington in the
place of Jay, who resigned, and in 1799 John Adams sent Ellsworth as an
envoy to France to try to negotiate a treaty which should reëstablish
peace between the two countries. Ellsworth succeeded in his mission, but
the hardships of his journey injured his health, and he, in turn,
resigned in the autumn of 1800. Then Adams offered the Chief Justiceship
to Jay, but Jay would not return to office, and after this the President
selected his Secretary of State, John Marshall, one of the greatest of
the great Virginians, but one of Jefferson's most irreconcilable
enemies. Perhaps at no moment in his life did John Adams demonstrate his
legal genius more convincingly than in this remarkable nomination. Yet
it must be conceded that, in making John Marshall Chief Justice, John
Adams deliberately chose the man whom, of all his countrymen, he thought
to be the most formidable champion of those views which he himself
entertained, and which he conceived that he had been elected President
to advance. Nor was John Adams deceived. For thirty-four years John
Marshall labored ceaselessly to counteract Jefferson's constitutional
principles, while Jefferson always denounced the political partiality of
the federal courts, and above all the "rancorous hatred which Marshall
bears to the government of his country, and ... the cunning and
sophistry within which he is able to enshroud himself."[11]
No one, at this day, would be disposed to dispute that the Constitution,
as a device to postpone war among the states, at least for a period, was
successful, and that, as I have already pointed out, during the
tentative interval which extended until Appomattox, the Supreme Court
served perhaps as well, in ordinary times, as an arbiter between the
states and the general government, as any which could have been
suggested. So much may be conceded, and yet it remains true, as the
record will show, that when it passed this point and entered into
factional strife, the Supreme Court somewhat lamentably failed, probably
injuring itself and popular respect for law, far more by its errors,
than it aided the Union by its political adjudications.
Although John Marshall, by common consent, ranks as one of the greatest
and purest of Americans, yet even Marshall had human weaknesses, one of
which was a really unreasonable antipathy to Thomas Jefferson; an
antipathy which, I surmise, must, when Jefferson was inaugurated, have
verged upon contempt. At least Marshall did what cautious men seldom do
when they respect an adversary, he took the first opportunity to pick a
quarrel with a man who had the advantage of him in position.
In the last days of his presidency John Adams appointed one William
Marbury a justice of the peace for the District of Columbia. The Senate
confirmed the appointment, and the President signed, and John Marshall,
as Secretary of State, sealed Marbury's commission; but in the hurry of
surrendering office the commission was not delivered, and Jefferson
found it in the State Department when he took possession. Resenting
violently these "midnight" appointments, as he called them, Jefferson
directed Mr. Madison, his Secretary of State, to withhold the
commission; and, at the next December term of the Supreme Court, Marbury
moved for a rule to Madison to show cause why he should not be commanded
to deliver to the plaintiff the property to which Marbury pretended to
be entitled. Of course Jefferson declined to appear before Marshall,
through his Secretary of State, and finally, in February, 1803, Marshall
gave judgment, in what was, without any doubt, the most anomalous
opinion he ever delivered, in that it violated all judicial conventions,
for, apparently, no object, save to humiliate a political opponent.
Marshall had no intention of commanding Madison to surrender the
commission to Marbury. He was too adroit a politician for that. Marshall
knew that he could not compel Jefferson to obey such a writ against his
will, and that in issuing the order he would only bring himself and his
court into contempt. What he seems to have wished to do was to give
Jefferson a lesson in deportment. Accordingly, instead of dismissing
Marbury's suit upon any convenient pretext, as, according to legal
etiquette, he should have done if he had made up his mind to decide
against the plaintiff, and yet thought it inexpedient to explain his
view of the law, he began his opinion with a long and extra-judicial
homily, first on Marbury's title to ownership in the commission, and
then on civil liberty. Having affirmed that Marbury's right to his
office vested when the President had signed, and the Secretary of State
had sealed the instrument, he pointed out that withholding the property
thus vested was a violation of civil rights which could be examined in a
court of justice. Were it otherwise, the Chief Justice insisted, the
government of the United States could not be termed a government of laws
and not of men.
All this elaborate introduction was in the nature of a solemn lecture by
the Chief Justice of the Supreme Court to the President of the United
States upon his faulty discharge of his official duties. Having eased
his mind on this head, Marshall went on, very dexterously indeed, but
also very palpably, to elude the consequences of his temerity. He
continued: The right of property being established, and the violation of
that right clear, it is plain that a wrong has been committed, and it
only remains to determine whether that wrong can be redressed under this
form of procedure. We are of opinion that it cannot, because Congress
has no constitutional power to confer upon the Supreme Court original
jurisdiction in this class of litigation. In the lower courts alone can
the relief prayed for be obtained.
Of all the events of Marshall's life this controversy with Jefferson
seems to me the most equivocal, and it was a direct effect of a
constitutional system which has permitted the courts to become the
censor of the political departments of the government. Marshall,
probably, felt exasperated by Jefferson's virulence against these final
appointments made by John Adams, while Marshall was Secretary of State,
and for which he may have felt himself, in part, responsible. Possibly,
even, he may have taken some of Jefferson's strictures as aimed at
himself. At all events he went to extreme lengths in retaliation. He
might have dismissed the litigation in a few words by stating that,
whatever the abstract rights of the parties might have been, the Supreme
Court had no power to constrain the President in his official functions;
but he yielded to political animosity. Then, having taken a position
practically untenable, he had to find an avenue of retreat, and he found
it by asserting a supervisory jurisdiction over Congress, a step which,
even at that early period, was most hazardous.[12]
In reality Jefferson's temper, far from being vindictive and
revolutionary, as his enemies believed, was rather gentle and timid, but
he would have been more than mortal had he endured such an insult in
silence. Nor could he, perhaps, have done so without risking the respect
of his followers. So he decided on reprisals, and a scheme was matured
among influential Virginians, like John Randolph and Senator William
Giles, to purge the Supreme Court of Federalists. Among the associate
justices of this court was Samuel Chase, a signer of the Declaration of
Independence and an able lawyer, but an arrogant and indiscreet
partisan. Chase had made himself obnoxious on various public occasions
and so was considered to be the best subject to impeach; but if they
succeeded with him the Jeffersonians proclaimed their intention of
removing all his brethren seriatim, including the chief offender of all,
John Marshall. One day in December, 1804, Senator Giles, of Virginia,
in a conversation which John Quincy Adams has reported in his diary,
discussed the issue at large, and that conversation is most apposite
now, since it shows how early the inevitable tendency was developed to
make judges who participate in political and social controversies
responsible to the popular will. The conversation is too long to extract
in full, but a few sentences will convey its purport:--
"He treated with the utmost contempt the idea of an _independent_
judiciary.... And if the judges of the Supreme Court should dare, _as
they had done_, to declare an act of Congress unconstitutional, or to
send a mandamus to the Secretary of State, _as they had done_, it was
the undoubted right of the: House of Representatives to impeach them,
and of the Senate to remove them, for giving such opinions, however
honest or sincere they may have been in entertaining them. * * * And a
removal by impeachment was nothing more than a declaration by Congress
to this effect: You hold dangerous opinions, and if you are suffered to
carry them into effect you will work the destruction of the nation. _We
want your offices_, for the purpose of giving them to men who will fill
them better."[13]
Jefferson, though he controlled a majority in the Senate, failed by a
narrow margin to obtain the two-thirds vote necessary to convict Chase.
Nevertheless, he accomplished his object. Chase never recovered his old
assurance, and Marshall never again committed a solecism in judicial
manners. On his side, after the impeachment, Jefferson showed
moderation. He might, if he had been malevolent, without doubt, have
obtained an act of Congress increasing the membership of the Supreme
Court enough to have put Marshall in a minority. Then by appointing men
like Giles he could have compelled Marshall to resign. He did nothing of
the kind. He spared the Supreme Court, which he might have overthrown,
and contented himself with waiting until time should give him the
opportunity to correct the political tendencies of a body of men whom he
sincerely regarded as a menace to, what he considered, popular
institutions. Thus the ebullition caused by Marshall's acrimony toward
Jefferson, because of Jefferson's strictures on the appointments made
by his predecessor subsided, leaving no very serious immediate mischief
behind, save the precedent of the nullification of an act of Congress by
the Supreme Court. That precedent, however, was followed by Marshall's
Democratic successor. And nothing can better illustrate the inherent
vice of the American constitutional system than that it should have been
possible, in 1853, to devise and afterward present to a tribunal, whose
primary purpose was to administer the municipal law, a set of facts for
adjudication, on purpose to force it to pass upon the validity of such a
statute as the Missouri Compromise, which had been enacted by Congress
in 1820, as a sort of treaty of peace between the North and South, and
whose object was the limitation of the spread of slavery. Whichever way
the Court decided, it must have fallen into opprobrium with one-half the
country. In fact, having been organized by the slaveholders to sustain
slavery, it decided against the North, and therefore lost repute with
the party destined to be victorious. I need not pause to criticise the
animus of the Court, nor yet the quality of the law which the Chief
Justice there laid down. It suffices that in the decade which preceded
hostilities no event, in all probability, so exasperated passions, and
so shook the faith of the people of the northern states in the
judiciary, as this decision. Faith, whether in the priest or the
magistrate, is of slow growth, and if once impaired is seldom fully
restored. I doubt whether the Supreme Court has ever recovered from the
shock it then received, and, considered from this point of view, the
careless attitude of the American people toward General Grant's
administration, when in 1871 it obtained the reversal of Hepburn _v_.
Griswold by appointments to the bench, assumes a sombre aspect.
Of late some sensitiveness has been shown in regard to this transaction,
and a disposition has appeared to defend General Grant and his
Attorney-General against the charge of manipulating the membership of
the bench to suit their own views. At the outset, therefore, I wish to
disclaim any intention of entering into this discussion. To me it is
immaterial whether General Grant and Mr. Hoar did or did not nominate
judges with a view to obtaining a particular judgment. I am concerned
not with what men thought, but with what they did, and with the effect
of their acts at the moment, upon their fellow-citizens.
Hepburn _v_. Griswold was decided in conference on November 27, 1869,
when eight justices were on the bench. On February 1, following, Justice
Grier resigned, and, on February 7, judgment was entered, the court then
being divided four to three, but Grier having been with the majority,
the vote in reality stood five to three. Two vacancies therefore existed
on February 7, one caused by the resignation of Grier, the other by an
act of Congress which had enlarged the court by one member, and which
had taken effect in the previous December.
Chief Justice Chase held that the clause of the currency laws of 1862
and 1863 which made depreciated paper a legal tender for preëxisting
debts was unconstitutional. No sooner had the judgment been recorded
than all the world perceived that, if both vacancies should be filled
with men who would uphold the acts, Hepburn _v_. Griswold might be
reversed by a majority of one.
The Republican party had full control of the government and was united
in vehement support of the laws. On March 21, the second of the two new
judges received his commission, and precisely ten days afterward the
Attorney-General moved for a rehearing, taunting the Chief Justice with
having changed his opinion on this point, and intimating that the issue
was in reality political, and not judicial at all.
In the December Term following Knox _v_. Lee was argued by the
Attorney-General, and, on May 1, 1871, judgment was entered reversing
Hepburn _v_. Griswold, both the new judges voting with the former
minority, thus creating the necessary majority of one. No one has ever
doubted that what General Grant did coincided with the drift of opinion,
and that the Republican party supported him without inquiring how he had
achieved success.[14] After this it is difficult to suppose that much
respect could remain among the American people for the sanctity of
judicial political decisions, or that a President, at the head of a
popular majority, would incur much odium for intervening to correct
them, as a party measure.
The last example of judicial interference which I shall mention was the
nullification, in 1895, of a statute of Congress which imposed an income
tax. The states have since set this decision aside by constitutional
amendment, and I should suppose that few would now dispute that the
Court when it so decided made a serious political and social error. As
Mr. Justice White pointed out, the judges undertook to deprive the
people, in their corporate capacity, of a power conceded to Congress "by
universal consensus for one hundred years."[15] These words were used in
the first argument, but on the rehearing the present Chief Justice waxed
warm in remonstrating against the unfortunate position in which his
brethren placed the Court before the nation, protesting with almost
passionate earnestness against the reversal by half-a-dozen judges of
what had been the universally accepted legal, political, and economic
policy of the country solely in order that "invested wealth" might be
read "into the constitution" as a favored and protected class of
property. Mr. Justice White closed by saying that by this act the
Supreme Court had "deprived [the Government] of an inherent attribute of
its being."[16] I might go on into endless detail, but I apprehend
that these cases, which are the most important which have ever arisen on
this issue, suffice for my purpose.[17] I contend that no court can,
because of the nature of its being, effectively check a popular majority
acting through a coordinate legislative assembly, and I submit that the
precedents which I have cited prove this contention. The only result of
an attempt and failure is to bring courts of justice into odium or
contempt, and, in any event, to make them objects of attack by a
dominant social force in order to use them as an instrument, much as
Charles II used Jeffreys.
The moment we consider the situation philosophically we perceive why
using a court to control a coordinate legislature must, nearly
inevitably, be sooner or later fatal to the court, if it asserts its
prerogative. A court to be a fit tribunal to administer the municipal
law impartially, or even relatively impartially, must be a small body of
men, holding by a permanent and secure tenure, guarded from all pressure
which may unduly influence them. Also they should be men of much
experience and learned in the precedents which should make the rules
which they apply stable and consistent. In short, a court should be
rigid and emotionless. It follows that it must be conservative, for its
members should long have passed that period of youth when the mind is
sensitive to new impressions. Were it otherwise, law would cease to be
cohesive. A legislature is nearly the antithesis of a court. It is
designed to reflect the passions of the voters, and the majority of
voters are apt to be young. Hence in periods of change, when alone
serious clashes between legislatures and courts are likely to occur, as
the social equilibrium shifts the legislature almost certainly will
reflect the rising, the court the sinking power. I take the Dred Scott
Case as an illustration. In 1857 the slaveholding interest had passed
the zenith of high fortune, and was hastening toward its decline. In the
elections of 1858 the Democratic party, which represented slavery, was
defeated. But the Supreme Court had been organized by Democrats who had
been dominant for many years, and it adhered, on the principle laid down
by Jeffreys, to the master which created it.
Occasionally, it is true, a court has been constructed by a rising
energy, as was the Supreme Court in 1789, but then it is equally
tenacious to the instinct which created it. The history of the Supreme
Court is, in this point of view, eminently suggestive. The Federalist
instinct was constructive, not destructive, and accordingly Marshall's
fame rests on a series of constructive decisions like M'Culloch _v_.
Maryland, Cohens _v_. Virginia, and Gibbons _v_. Odgen. In these
decisions he either upheld actual national legislation, or else the
power of the nation to legislate. Conversely, whenever Marshall or his
successors have sought to obstruct social movement they have not
prospered. Marbury _v_. Madison is not an episode on which any admirer
of Marshall can linger with satisfaction. In theory it may be true, as
Hamilton contended, that, given the fact that a written constitution is
inevitable, a bench of judges is the best tribunal to interpret its
meaning, since the duty of the judge has ever been and is now to
interpret the meaning of written instruments; but it does not follow
from this premise that the judges who should exercise this office should
be the judges who administer the municipal law. In point of fact
experience has proved that, so far as Congress is concerned, the results
of judicial interference have been negative. And it would be well if in
other spheres of American constitutional development, judicial activity
had been always negative. Unfortunately, as I believe, it has extended
into the domain of legislation. I will take the Dred Scott Case once
more to illustrate my meaning. The North found it bad enough for the
Supreme Court to hold that, under the Constitution, Congress could not
exclude slavery from the national territory beyond a certain boundary
which had been fixed by compromise between the North and South. But the
North would have found it intolerable if the Court, while fully
conceding that Congress might so legislate, if the character of the
legislation commended itself to the judges, had held the Missouri
Compromise to be unconstitutional because they thought it
_unreasonable_. Yet this, in substance, is what our courts have done.
And this brings me to the consideration of American courts as
legislative chambers.
FOOTNOTES:
[6] The relation of courts to legislation in European countries has been
pretty fully considered by Brinton Coxe, in _Judicial Power and
Constitutional Legislation_.
[7] _Federalist_ No. LXXVIII.
[8] _The Federalist_, No. LXXVIII.
[9] _The Federalist_, No. LXXVIII.
[10] Cohens _v_. Virginia, 6 Wheaton 415.
[11] To Madison, Ford, 9, 275.
[12] Marshall's constitutional doctrine was not universally accepted,
even in the courts of the northern states, until long afterward. As
eminent a jurist as Chief Justice Gibson of Pennsylvania, as late as
1825, gave a very able dissenting opinion in opposition in Eakin _v_.
Raub, 12 S.&R., 344.
[13] Memoirs, I, 322.
[14] Hepburn _v._ Griswold, 8 Wallace 603. Decided in conference on Nov.
27, 1869, more than a month before Grier's resignation. Knox _v_. Lee,
12 Wallace 457.
[15] 157 U.S. 608.
[16] Pollock _v_. The Farmers' Loan & Trust Co., 158 U.S. 715.
[17] In 1889 Mr. J.C. Bancroft Davis compiled a table of the acts of
Congress which up to that time had been held to be unconstitutional. It
is to be found in the Appendix to volume 131 U.S. Reports, page CCXXXV.
Mr. Davis has, however, omitted from his list the Dred Scott Case,
probably for the technical reason that, in 1857, when the cause was
decided, the Missouri Compromise had been repealed. Nevertheless, though
this is true, Tansy's decision hinged upon the invalidity of the law.
Besides the statutes which I have mentioned in the test, the two most
important, I suppose, which have been annulled, have to me no little
interest. These are the Civil Rights Act of 1875, and the Employers'
Liability Act of 1906. The Civil Rights Act of 1875 grew rapidly
unpopular, and the decision which overturned it coincided with the
strong drift of opinion. The Civil Rights Cases were decided in October,
1883, and Mr. Cleveland was elected President in 1884. Doubtless the law
would have been repealed had the judiciary supported it. Therefore this
adjudication stood.
On the other hand, the Employers' Liability Act of 1906 was held bad
because Congress undertook to deal with commerce conducted wholly within
the states, and therefore beyond the national jurisdiction. The Court,
consequently, in the Employers' Liability Cases, simply defined the
limits of sovereignty, as a Canadian Court might do; it did not question
the existence of sovereignty itself. In 1908 Congress passed a statute
free from this objection, and the Court, in the Second Employers'
Liability Cases, 223 U.S. 1, sustained the legislation in the most
thoroughgoing manner. I know not where to look for two better
illustrations of my theory.