The text of this address is taken from Grote's "History of Greece." The
historian, reviewing the state of the Athenian democracy in the age
of Kleisthenes, points out that it became necessary to create in the
multitude, and through them to force upon the leading men, the rare and
difficult sentiment which he terms constitutional morality. He shows
that the essence of this sentiment is self-imposed restraint, that few
sentiments are more difficult to establish in a community, and that its
diffusion, not merely among the majority, but throughout all classes,
is the indispensable condition of a government at once free, stable
and peaceable. Whoever has studied the history of Greece knows that
the Grecian democracy was ultimately overthrown by the acts of her own
citizens and their disregard of constitutional morality rather than by
the spears of her conquerors.
We American lawyers would be blind, indeed, if we did not recognize
that there is at the present time a growing tendency throughout the
country to disregard constitutional morality. On all sides we find
impatience with constitutional restraints, manifesting itself in many
forms and under many pretences, and this impatience is particularly
strong with the action of the courts in protecting the individual and
the minority against unconstitutional enactments favoring one class
at the expense of another. However worded and however concealed under
professions of social reform or social justice, the underlying spirit
in most instances is that of impatience with any restraint or rule of
law.
We are meeting again the oldest and the strongest political plea of
the demagogue, so often shown to be the most fallacious and dangerous
doctrine that has ever appeared among men, that the people are
infallible and can do no wrong, that their cry must be taken as the
voice of God, and that whatever at any time seems to be the will of
the majority, however ignorant and prejudiced, must be accepted as
gospel. The principal political battle-cry to-day seems to be that,
if the people are now fit to rule themselves, they no longer need any
checks or restraints, that the constitutional form of representative
government under which we have lived and prospered has become
antiquated and unsatisfactory to the masses, and that we should adopt a
pure democracy and leave to the majority itself the decision of every
question of government or legislation, with the power to enforce its
will or impulse immediately and without restraint.
We find many political and social reformers advocating an absolute
legislative body, whose edicts, in response to the wishes, interests,
or prejudices of the majority, shall at once become binding on all,
no matter how unjust or oppressive these edicts may be. Those who
are loudest in thus demanding the supremacy of the legislative power
are equally loud in charging that our legislatures are inefficient or
corrupt and in proclaiming distrust of the people's representatives in
legislative bodies. In one breath we are asked to vest legislatures
with power and discretion beyond the control of the courts, and in the
next breath we are told that legislative bodies are not to be trusted
by the people, and hence that we must have the initiative and the
referendum.
Other reformers would vest greater power in the executive, so as to
enable him to dictate to legislatures whatever he deemed or professed
to think best for the common welfare or for social progress. In the
final analysis this would, of course, reduce us to a despotism pure and
simple, and place Congress and the state legislatures in the condition
of the Roman senate in the second century. Argue as we may from the
admonitions and experience of the past, the defiant answer is that
the people will select the executive and are prepared to trust him,
an answer that singularly disregards the fact that they now select
the legislators whom they no longer trust, and that practical reform
in legislation is ready to their hand if they will only insist upon
character and ability in their representatives.
Others again would deny to the courts the power and duty to declare
unconstitutional and void any enactment of a legislative body that was
in conflict with the constitution, or, if not going quite so far,
would give the courts power to disregard constitutional limitations
whenever the judges found or fancied that an enactment was in
consonance with prevailing morality or the opinion of the majority in
respect of matters relating to the police power or social progress or
social justice. They would have the judiciary interpret and enforce a
constitution not according to the mandate of the people who adopted it,
nor according to the true meaning and intent of the language employed
by the framers, nor according to settled general rules and principles,
but according to the ever-changing desires or notions or opinions
of the majority and the personal ideas of so-called progressive or
sympathetic judges. Many of those who charge the judiciary with having
usurped the power to determine whether a particular enactment does or
does not conflict with the fundamental and supreme law as established
by the people themselves, would now place a far greater power in
the hands of the courts by authorizing them to expand or contract a
constitution by judicial construction, and would thus in reality vest
in the judges an arbitrary discretion. Under this doctrine, practically
every constitutional restraint could be readily circumvented,
perverted, or nullified; constitutional rights could be frittered away,
and great landmarks of human progress could be undermined.
We should then have government by the judiciary with a vengeance. Our
constitutional system would be no longer reasonably fixed and stable,
no longer regulated by the justice of necessary general rules, but
would be subject to constant uncertainty and change as judges might
think the moral atmosphere of the moment or the will or opinion or
interests of the majority required. It would, of course, be better to
have no constitutional restraints at all, and to vest supreme power
and corresponding responsibility in the legislative branch of our
government. It is of the essence of judicial power that judges in
deciding cases shall be bound by principles, rules and precedents, that
they shall not be permitted to exercise arbitrary discretion, and that
they shall be required to give reasons for their decisions. A court
bound by no rules or principles at all would not be exercising judicial
power as we understand that term. If we were to vest in legislatures
or courts the discretion to obey or disobey constitutional restraints
according as the prevailing moral or political sentiment might seem
to dictate, we would at once deprive such restraints of all practical
force and effect, and would have a constitution only in name and form
and not in substance. As the late Chief Justice Fuller, _clarum et
venerabile nomen_, so well said in the Lottery case, "our form of
government may remain notwithstanding legislation or decision, but, as
long ago observed, it is with governments as with religions, the form
may survive the substance of the faith."[11]
The limited time at my disposal compels me to confine this address
to the aspect of constitutional morality which is presented by the
criticism of the courts for refusing to enforce unconstitutional
statutes. This seems to me to be the most dangerous of all the lines
of attack. I regret that I have not time to deal with other important
aspects of my subject, such as the movement for the recall of judges
and judicial decisions, the agitation for the initiative and the
referendum, and the growing practice on the part of legislatures and
executives of abandoning the consideration of constitutional questions
and leaving this duty to the courts, thus casting upon the judges the
sole responsibility and frequently the unpopularity and even odium of
enforcing constitutional restraints.
Few of us, I assume, would seriously suggest that the judicial
department is to be above criticism, or that it is to be deemed
sacrosanct so that we must bow and submit in silence, without the right
of challenge, criticism, or censure, to whatever the courts declare to
be law. Such a view would be absurd. Of course, judges make mistakes
as the wisest and best men make mistakes. They are not infallible. But
neither are our legislative bodies infallible, nor is the crowd. There
must be the fullest liberty of criticism and if need be of censure of
our judges as of all other public officials. Fair and just criticism,
however, would be distinctly educational, and it could tend only to
restore the courts to public favor and confidence. The danger is not in
freedom of criticism, but in unfair and unfounded criticism supported
by distorted or false statements. Our judicial system is inherently
sound enough and strong enough to withstand and overcome any fair
criticism. We should, therefore, encourage the fullest discussion of
judicial decisions in constitutional cases in order that constitutional
principles may be adequately explained and the necessity for the
observance of constitutional morality brought home to the people.
Let us, however, insist that the facts be truthfully stated. If the
reasons and principles of justice which support most of the decisions
criticized could be explained to all classes in simple language and
in terms intelligible to laymen as well as to lawyers, much of the
misapprehension of judicial decisions and prejudice against the courts
and constitutional restraints would be dispelled. To tell the man in
the street or in the workshop that a statute is in conflict with the
guaranty of due process of law or of the law of the land, conveys no
meaning to his mind; yet, if he understood the fundamental principles
involved and the consequences of disregarding them, he might be
persuaded of the justice and propriety of the decision under discussion.
I shall call your attention to a few examples of alleged abuse or
usurpation of power by the judiciary, and endeavor to show the
characteristics of much of the criticism of the judges and the manner
in which the masses are being constantly prejudiced and inflamed
against the courts.
The case in the New York courts which probably is being more criticized
and misrepresented than any other is known as the Tenement House
Tobacco case (Matter of Jacobs),[12] decided in January, 1885.
The courts then held unconstitutional an act which forbade the
manufacture of tobacco products in certain tenement houses in New
York and Brooklyn, because the statute unwarrantably and unreasonably
interfered with the liberty of the individual. The enactment was an
attempt on the part of the owners of large tobacco factories to destroy
the competition of cigar manufacturers who worked at home. It was
not an honest health measure at all; it was not in fact designed to
protect the health of tobacco workers, and it did not contain a single
provision tending in any degree to secure sanitary conditions of work
or living. Not one word in the opinions of the courts in the Jacobs
case prevented the legislature from adopting regulations to secure
wholesome conditions in the manufacture of any article. Since that
decision, the New York constitution has been carefully revised by a
constitutional convention in 1894, and in addition has been repeatedly
amended, no less than nineteen separate amendments having been adopted
by the people, whilst a large number of additional proposed amendments
have been rejected. But in neither the revision nor in any of the
amendments, whether adopted or rejected, was any change suggested in
the rule of constitutional law declared in the Tenement House case,
although the subject was directly called to the attention of the
convention. For more than a quarter of a century, the people of the
state of New York have acquiesced in the decision of the Court of
Appeals as fair, just and satisfactory.
Jacobs with his wife and two children lived in a tenement house in the
city of New York and occupied an apartment of seven rooms in a building
where there were only three other apartments, all of equal size. In
this apartment he carried on the trade of manufacturing cigars, and
the rooms in which he did so were separated from the sleeping and
cooking-rooms. The testimony showed that there was no odor of tobacco
in these sleeping and cooking-rooms. The conditions under which he was
carrying on his trade in his own home for the support of himself and
his family were much more healthful than if he and his assistants had
been compelled to work in a crowded factory, particularly in 1884, when
there were no such sanitary conditions in factories as now prevail
under the beneficent operation of our present public health and labor
laws. It was shown that, when this legislation was enacted, 840,000,000
cigars were being manufactured annually in the city of New York, of
which about 370,000,000, or 44 per cent., were made in the homes of
dwellers in tenement or apartment houses, and that about two thousand
artisans were supporting themselves and their families by thus working
at home. The board of health of the city of New York had officially
declared, after careful investigation, as set forth in the brief of
Mr. Evarts, then the leader of the American bar, "that the health of
the tenement-house population is not jeopardized by the manufacture
of cigars in those houses; that this bill is not a sanitary measure,
and that it has not been approved by this board." It also appeared
from this brief that while the death-rate in the city of New York
generally was 31 in each 1,000, it was only 9 in each 1,000 in the
tenement houses where cigars were being manufactured. The act, if valid
and enforceable, would have crushed the competition of home workers
with the tobacco factories; it would have deprived the tenement-house
dweller of the liberty to exercise his trade of cigar-making at home
even under the most sanitary conditions, and it would have driven
every such workman and the working members of his family into crowded
and generally unhealthful factories, to be harassed and oppressed by
strikes and lockouts and the other troubles which attend modern labor
conditions, to say nothing of being exposed to all the mischiefs,
physical and moral, that are inseparable from crowded workshops. The
court held that the statute was not a legitimate health regulation and
released Jacobs from imprisonment. The principle of constitutional
law recognized and applied was that an individual cannot be made a
criminal for working at a lawful trade in his own home under sanitary
conditions, and cannot be compelled by discriminatory legislation to
labor in a crowded factory. If the provisions of the act had not been
declared to be in conflict with the constitutional guaranty of personal
liberty, similar statutes could have been passed with respect to all
kinds of home work, and all artisans, whether men or women, could
have been driven into factories at the dictation of factory owners
or trade-unions having sufficient political influence to secure the
necessary legislation.
I digress here a moment to point out that people urging particular
enactments too often overlook the effect of disregarding a principle
and establishing a precedent. Constitutions declare general rules or
principles of justice, which sometimes do not coincide with the justice
of particular cases. The framing of general rules of conduct so as to
bring about practical justice in the greatest number of cases and with
the fewest exceptions, constitutes the science of jurisprudence, of
which constitution-making is but a branch, and the application of these
general rules to practical affairs is the duty of legislatures and
courts. The statutes before the courts are frequently recognized and
conceded to be only entering wedges and experiments, and, if sustained,
are certain to be followed by others far broader and more radical. If
legislative power exists to regulate a subject, the extent or degree
of its exercise is essentially for the legislature to determine in its
discretion and cannot be controlled by the courts. Hence, a court must
always consider, in determining the constitutionality of a statute, not
merely the features of the particular statute before it and not merely
the justice or merits of the particular case as between man and man or
between the state and the individual, but what might be done under the
same principle if the statute before it were upheld and a precedent
established. Thus, if we once grant the power of a legislature to
prohibit work at home under sanitary conditions in one trade, then
every trade becomes subject to the same power of regulation and
prohibition, and all working men and women can be driven into crowded
factories.
In the Jacobs case, Presiding Justice Noah Davis, speaking for the
intermediate appellate court sitting in the city of New York, and
undoubtedly acquainted with conditions then and there existing, used
the following language: "A careful study of the act has satisfied us
that its aim was not 'to improve the public health by prohibiting
the manufacture of cigars and preparation of tobacco in any form in
tenement houses in certain cases, and regulating the use of tenement
houses in certain cases,' as declared in the title, but to suppress
and restrain such manufacture in the cases covered by the act for
the purpose of preventing successful competition injurious to other
modes of manufacturing the same articles.... If the act were general
and aimed at all tenement houses, and prohibited for sanitary reasons
the manufacture of cigars and tobacco in all such buildings, or if it
prohibited such manufacture in the living-rooms of all tenants, another
case would be presented. But in the form in which it comes before us it
is so unjust in its inequality, so harsh and oppressive upon the labor
of poverty, so keenly discriminative in favor of the stronger classes
engaged in the same occupation, that it certainly ought not to have
been enacted; but, being enacted, ought to be held invalid because it
deprives the appellant of his right and liberty to use his occupation
in his own house for the support of himself and family, and takes
away the value of his labor, which is his property protected by the
Constitution equally as though it were in lands or money, without due
process of law."[13]
Discussing the Jacobs case, Mr. P. Tecumseh Sherman of the New York
bar, who is reputed to be one of the best informed men in our state
upon the subject of labor conditions and labor legislation and who was
at one time a state commissioner of labor, said in a letter published
a few weeks ago that the tenement-house statute, although purporting
to be for the public health, was not a reasonable regulation for that
purpose, because it arbitrarily selected one article and forbade its
manufacture under certain conditions not generally unsanitary, and he
added that "as matter of fact, the act was not designed to protect
health but to put out of business one set of competitors in a trade
war."
Now let me call your attention to two examples of the manner in which
this decision is being criticized. In an address delivered at Yale
University last month, the mayor of the city of New York, who for many
years had been a justice of the state supreme court, criticized the
courts and derided the administration of justice in his own state.
He referred to the Jacobs case in the following language: "The first
case I shall call your attention to is known in my own state as the
Tenement House Tobacco case.... You know what a condensed population
we have in a part of the city of New York. Well, benevolent men and
women in going around there found in little rooms in these crowded
tenements certain things being manufactured that were not wholesome.
They found tobacco being manufactured into its various products in the
living-rooms of these poor tenements. Benevolent people who helped the
poor saw it and they saw the evils of it. They saw little children born
into this world and brought up in bedrooms and kitchens in the fumes
and odors of tobacco. They also saw longer hours of work than would be
the case if workers left their work at the shop and went home. So they
went to the legislature and got a law passed forbidding the manufacture
of tobacco in the living-rooms of these tenements." Mayor Gaynor
then proceeded to criticize and condemn the Court of Appeals for its
reasoning and decision.
The facts, however, were that the statute was not limited to "the
living-rooms of these tenements," but applied to every room, and that
the promoters of this legislation were not the benevolent men and
women who visit and help the poor, as Mayor Gaynor imagined, but the
owners of tobacco factories who desired to crush the competition of
independent workers. Nor was there anything in the case before the
courts to support the statement that any one had seen "little children
born into this world and brought up in bedrooms and kitchens in the
fumes and odors of tobacco." No such conditions were before the courts,
and the contrary was proved by unimpeached evidence in the Jacobs case,
as any one reading the record could see. But, even if the picture
had been true, the decision in this case did not in any way whatever
prevent proper legislation prohibiting the manufacture of tobacco
products in the bedrooms and kitchens of crowded tenement houses or
under unsanitary conditions.
Ex-President Roosevelt is equally inaccurate in his criticism of
the Jacobs case. He is reported as having said in one of his recent
speeches that "the decision of the court in this case retarded by at
least twenty years the work of tenement-house reform and was directly
responsible for causing hundreds of thousands of American citizens now
alive to be brought up under conditions of reeking filth and squalor,
which measurably decreased their chance of turning out to be good
citizens." The truth is that the decision did not retard tenement-house
reform by a single day, and did not prevent the enactment of a single
provision for securing sanitary conditions for those who work at home.
In fact, the necessary legislation has since been readily secured and
enacted in New York without any amendment of the state constitution.
Our public health and labor laws now regulate the manufacture of
tobacco and other articles in homes and require and secure sanitary
conditions, and licenses authorizing manufacturing at home are issued
subject to cancellation at any time if the surroundings become
unsanitary.
Mr. Sherman characterized as absurd the statement made by Mr. Roosevelt
in regard to the effect of this decision, and added that "so far, then,
from having done harm in the way of sanitary reform, the decision in
the Jacobs case has done good by giving the reform a proper direction
and object. Mr. Roosevelt's criticism receives a ready chorus of
approval from a large body of ill-informed reformers who seek to
prevent some of the evils of 'sweating' by arbitrarily forbidding all
home manufacture in tenements. But the vast majority of tenement houses
in New York are of a class better described as apartment houses, which
are perfectly sanitary, and in such houses there is much home work
of a good kind, such as fine sewing, art work, &c., and under good
conditions; and it would be a deplorable and unnecessary interference
with liberty to forbid such work as an incident to the prevention of
home work in unsanitary slums."
Another New York case which is being similarly criticized and
misrepresented is what is known as the Bakers case, or People
_vs._ Lochner.[14] The decision in this case declaring a statute
unconstitutional was that of the Supreme Court of the United States
and not of the New York Court of Appeals; in fact the latter court
sustained the act, although by a divided court. Mayor Gaynor explained
this decision to his audience at Yale, composed largely of law
students, in the following language: "The next case in order was the
bake-oven case in my state. A bake-oven, you know, is underground. And
if any of you ever were in a bake-oven I do not need to say another
word about bake-ovens. It is the hottest and most uncomfortable place
on the face of the earth. It is a hard place to work in. It is hot and
unhealthy, and no one can stand it without injury to health. So in the
same way in the state of New York we had an act passed prescribing
sanitary regulations for the bakeries.... These bake-ovens are
exceptional. They are underground and as hot as Tophet, if I may use
such an expression here.... The law was passed prescribing regulations
for them. One of the regulations was that ten hours a night was all
that a baker should work in these places." And Mr. Roosevelt is
reported in the newspapers as criticizing this decision and stating to
his audiences that "this New York law prevented the employment of men
in filthy cellar bakeries for longer than ten hours a day."
The statute in question applied to manufacturers of bread, biscuits and
confectionery. Taken in connection with the then existing Public Health
Law, it contained adequate provisions for securing the best conditions
of sanitation and ventilation and for safeguarding bakers from the
effects of heat and of breathing flour or other particles. There was no
distinction drawn in the act as to hours of labor between sanitary and
unsanitary conditions of work, or between bakers and other employees,
or between night and day work. The power of the legislature to prevent
the manufacture of bread or other articles of food in cellars or in
underground bake-ovens or in filthy and unsanitary places, whether
above or below ground, was not challenged. The provisions of the act
tending to secure sanitary conditions were not interfered with or set
aside by the courts, and they have ever since been enforced as valid
for all purposes. The act was not confined in its operation to workmen
compelled to labor at night underground, but applied to everyone
employed day or night in factories, above or below ground, in which
bread, confectionery, or biscuits were manufactured. It is true that
medical authorities were cited to the courts in support of the view
that the trade of a baker was injurious to health, but such authorities
were based upon statistics gathered under conditions of labor which
could not have existed then and cannot exist now in New York if the
elaborate regulations of our public health and labor laws be duly
enforced. There were, however, conflicting medical authorities cited to
the court, which asserted that the trade was not unwholesome.
Lochner owned a bakery at Utica in which he worked himself and
employed three or four workmen. There was only one oven, and it was
above ground. The building was clean, especially well ventilated and
sanitary. The only question before the court in the case was whether
Lochner could be made a criminal and imprisoned for permitting his
workmen to labor more than ten hours in any day under the best
sanitary conditions, and the Supreme Court held that this could not be
done without violating his constitutional rights. Had the conditions
of work in bread, biscuit, or confectionery factories in the state of
New York been shown to have been unusually dangerous and necessarily
unwholesome, the law would undoubtedly have been sustained by the
Supreme Court, as was the Utah miners' act in Holden _vs._ Hardy.[15]
No one who has studied the decisions of the New York courts or of
the Supreme Court of the United States can doubt that any statutory
provision reasonably tending to protect the health of bakers and other
workmen and to prevent labor in unhealthful places would be upheld as
clearly within the police power of the legislature.
The act, moreover, was one-sided and discriminatory in that it made the
employer a criminal but left the workman free to do as he saw fit. A
baker working for A for ten hours in one day was left at liberty to go
next door to B, A's competitor, and, if he saw fit, work another ten
hours for B. In fact, as I am told, the informer on whose testimony
Lochner was convicted frequently worked ten hours a day for Lochner and
a number of hours additional in another bakery. If the act had been
honestly conceived in a desire to safeguard the health of bakers, it
would, of course, have provided some punishment for any violation of
the law on the part of the workmen, and not have left them at liberty
to disregard its spirit whenever they saw fit to do so.
The principle involved in this Bakers case was universal, and if
employers in bread, biscuit, or confectionery factories could be made
criminals for permitting their employees to labor more than ten hours
in any one day, the legislature could enact similar legislation as to
every other employment. No court would then have power to regulate
the degree of the exercise of legislative discretion in such cases.
The provision, which at first limited the workday to ten hours, could
thereafter be changed to eight hours, or even to six hours, as was
advocated in More's "Utopia."
In February of this year, Mr. Roosevelt delivered an address before
the Ohio constitutional convention, in which he discussed the decision
of the Supreme Court of the United States in the Employers' Liability
cases,[16] decided while he was President. The court then held that
the act of Congress of June 11, 1906, sometimes erroneously called
the National Workmen's Compensation Act, attempted to regulate the
internal affairs of the several states as well as interstate commerce,
that it consequently included a subject not within the constitutional
power of Congress, and that the two matters were so blended that they
were incapable of separation unless the court made a new statute in
the place of the one enacted by Congress. Conscientiously entertaining
this view, the majority of the court would have been guilty of the
plainest constitutional immorality if they had not declared that the
act was beyond the power of Congress and declined to give it effect. No
honest men, believing as the majority did, could have done otherwise
than obey the constitutional mandate expressly reserving to the states
the legislative powers not delegated to Congress. In the light of
the long-established and wise rule that courts should avoid judicial
legislation and not revise or give effect to a statute in a manner
not clearly intended by the legislative body, the justices could not,
of course, have upheld and enforced the statute simply because the
individual cases before them excited their sympathy or involved the
claims of widows. The remedy was obvious and simple. Congress was
then in session, and within a few days an amended statute could have
been enacted so as to limit the act to interstate commerce, which
alone was within the constitutional power of Congress to regulate.
After the lapse of three months, such a law was enacted, and being
plainly confined to interstate commerce, as the original statute should
have been, and would have been if properly and competently drafted,
the amended act was unanimously sustained by the Supreme Court as
constitutional in the Second Employers' Liability cases, decided this
year,[17] when it was held that Congress had power to change the
common law rules as to assumption of risk, contributory negligence and
fellow-servants' acts in connection with the regulation of interstate
commerce.
Speaking of the first decision, Mr. Roosevelt said: "When I was
President, we passed a National Workmen's Compensation Act. Under it
a railway man named Howard, I think, was killed in Tennessee, and his
widow sued for damages. Congress had done all it could to provide
the right, but the court stepped in and decreed that Congress had
failed. Three of the judges took the extreme position that there was
no way in which Congress could act to secure the helpless widow and
children against suffering, and that the man's blood and the blood
of all similar men when spilled should forever cry aloud in vain for
justice. This seems a strong statement, but it is far less strong than
the actual facts; and I have difficulty in making the statement with
any degree of moderation. The nine justices of the Supreme Court on
this question split into five fragments. One man, Justice Moody, in
his opinion stated the case in its broadest way and demanded justice
for Howard, on grounds that would have meant that in all similar cases
thereafter justice and not injustice should be done. Yet the court,
by a majority of one, decided as I do not for one moment believe the
court would now decide, and not only perpetuated a lamentable injustice
in the case of the man himself, but set a standard of injustice for
all similar cases. Here again I ask you not to think of mere legal
formalism, but to think of the great immutable principles of justice,
the great immutable principles of right and wrong, and to ponder what
it means to men dependent for their livelihood, and to the women and
children dependent upon these men, when the courts of the land deny
them the justice to which they are entitled."
Now, if this argument meant anything it certainly meant that, in
the opinion of the speaker, an ex-President of the United States,
the justices of the Supreme Court should have disregarded the
Constitution as they understood it in order to allow a widow to
recover notwithstanding the unconstitutionality of the act under and
by virtue of which she was suing. You will not find a single word of
reference by Mr. Roosevelt in his whole address to the only point
upon which the majority, speaking by Mr. Justice White, decided the
cases. Of course, the statement of what was actually decided would have
been tame and unsensational. The criticism in form and substance was
based upon a distorted and unfair statement of what was decided, and
it was calculated to create in the minds of the members of the Ohio
constitutional convention, as well as in the minds of the uninformed
public, the belief that the justices of the Supreme Court of the United
States had "set a standard of injustice for all similar cases" and
had denied to Congress the power to pass a fair and just employers'
liability statute properly limited to interstate commerce. The contrary
was plainly the truth, as the subsequent decision of the court had
clearly shown, for this latter decision was rendered and published
before Mr. Roosevelt made his address.
Another example of distorted statement and unfair criticism of the
courts will be found in the same address. It related to the decision of
the New York Court of Appeals in the case of Ives _vs._ South Buffalo
Railway Company,[18] decided last year, in which the court held that a
statute concededly novel and revolutionary, creating liability on the
part of an employer to his workmen although the employer and his agents
were wholly free from negligence or fault of any kind and had neglected
no duty of care, supervision or selection, was unconstitutional because
taking the property of the employer and giving it to the workman
without due process of law. Ives was a brakeman employed by the
defendant railway company. While walking on the top of the cars of a
very long train, he gave a signal to the engineer to close up a space
or slack and was thrown to the ground by the resulting jar, concededly
without any negligence on the part of the railway company, and probably
through his own carelessness. The injury consisted of a sprained ankle
and slight bruises. There was no claim in the complaint that the injury
was in any sense permanent, and as matter of fact Ives sued for loss of
wages during only five weeks, claiming fifty dollars as the measure of
his damage. I am informed that the injury was not serious, that Ives
entirely recovered and resumed his work within four weeks after the
injury, that the railroad company ultimately paid him for his loss of
time, that he has since been continuously employed by the same company
at similar work, and that in no sense whatever was his ability to earn
his livelihood impaired.
Let us turn to the picture drawn by Mr. Roosevelt in describing this
case for the instruction and guidance of a constitutional convention.
"I am not thinking of the terminology of the decision, nor of what seem
to me the hair-splitting and meticulous arguments elaborately worked
out to justify a great and terrible miscarriage of justice. Moreover,
I am not thinking only of the sufferers in any given case, but of the
tens of thousands of others who suffer because of the way this case was
decided. In the New York case, the railway employee who was injured
was a man named, I believe, Ives. The court admits that by every moral
consideration he was entitled to recover as his due the money that the
law intended to give him. Yet the court by its decision forces that
man to stagger through life maimed, and keeps the money that should be
his in the treasury of the company in whose service, as an incident of
his regular employment and in the endurance of ordinary risks, he lost
the ability to earn his own livelihood. There are thousands of Iveses
in this country; thousands of cases such as this come up every year;
and while this is true, while the courts deny essential and elementary
justice to these men and give to them and the people in exchange for
justice a technical and empty formula, it is idle to ask me not to
criticize them. As long as injustice is kept thus intrenched by any
court, I will protest as strongly as in me lies against such action."
To repeat, as a matter of fact, Ives was not maimed; he was not
permanently injured; he was not deprived of the ability to earn his
livelihood. Nor did the Court of Appeals admit that by every moral
consideration Ives was entitled to recover as his due the money that
the law intended to give him. Had that point been before a court of
justice, however sympathetic and sentimental, I doubt very much whether
it could have held that Ives was entitled, by any moral consideration
whatever, to compel the railway company to compensate him for the
four or five weeks' loss of wages resulting from no fault on its
part but from his own carelessness. The statements that "the court
by its decision forces that man to stagger through life maimed" and
that "he lost the ability to earn his own livelihood" were simply so
much fiction, but, of course they were very effective with emotional
audiences and highly calculated to inflame Mr. Roosevelt's hearers
and readers against the courts. I venture to assert that it would be
difficult to find or indeed to conceive a more unwarranted and unfair
misrepresentation of the facts actually before a court.
Another current misrepresentation is that the Supreme Court of the
United States in the Second Employers' Liability cases upheld as
constitutional a statute of Congress identical with the statute held
unconstitutional by the New York Court of Appeals in the Ives case.
The people are being told that the New York courts hold the provision
requiring due process of law in the fourteenth amendment to mean one
thing, whilst the Supreme Court of the United States holds exactly
the same provision in the fifth amendment to mean the contrary. But
those who will take the trouble to read the two statutes will at once
perceive that the act of Congress differs radically from the New York
Workmen's Compensation Act. The act of Congress, although abolishing
or restricting the rules as to fellow-servants' acts, assumption of
risk and contributory negligence, imposes liability on common carriers
by railroad only for "injury or death resulting in whole or in part
from the _negligence_ of any of the officers, agents, or employees of
such carrier, or by reason of any defect or insufficiency, _due to
its negligence_, in its cars, engines, appliances, machinery, track,
roadbed, works, boats, wharves, or other equipment." On the other hand,
the New York statute created liability not in one dangerous employment,
such as the business of common carrier by railroad, but in many other
employments not necessarily dangerous, and wholly irrespective of
negligence or fault on the part of the employer or any of his officers,
agents, or employees. In fact, there is nothing in the New York
decision or in the opinions of the judges which would invalidate a
statute identical with the act of Congress if now enacted by the New
York legislature. The Ives case, far from preventing such a statute,
would be an authority in its support.
I regret that we have not time to consider further these particular
decisions. In my opinion they correctly and wisely applied established
principles of constitutional law and constitutional justice and were
morally right and just. I am now pleading for fairness and temperance
in discussing the decisions of our courts and for the imperative
necessity of founding these discussions upon the truth. Ambassador
Bryce said in a recent address: "To counsel you to stick to facts
is not to dissuade you from philosophical generalizations, but only
to remind you ... that the generalizations must spring out of the
facts, and without the facts are worthless." In other words, a regard
for fact, which is but another term for truth, is or should be as
indispensable in law and politics as it is in philosophy.
The criticisms of which the above are fair samples must be refuted
because they find constant repetition and have the authority of
distinguished leaders of public opinion, who at the present time seem
to have the confidence of the people. Their statements are naturally
accepted as true. The judges are being similarly misrepresented and
assailed on all sides, and they cannot defend themselves. Thus far
the bar at large has seemed indifferent, and a misconception of what
constitutes good taste imposes silence upon the counsel engaged in the
cases which are criticized. The people are being misled, prejudiced
and inflamed by false statements and unfair criticism. If the courts
are not defended, they may bend before the storm of undeserved censure.
Constituted as humanity is, there is grave danger that the judges will
be unconsciously intimidated and coerced by this abuse and clamor.
Is it not high time that the members of our profession should charge
themselves with the task of defending the courts by placing the facts
before the people? The bar associations of the country will never be
called upon to render a greater service to the profession and to the
community than that of stemming this tide of misrepresentation and
intemperate abuse and striving to restore confidence in the learning,
impartiality and independence of our judges, in the justice of their
decisions, and in the necessity of their enforcing constitutional
restraints.
Not only are the decisions of the courts constantly distorted and
misrepresented, but the people are also being taught that the courts
have usurped the power to declare void any statute in conflict with the
constitution, and that no such power was ever intended to be conferred
by the framers of national or state constitutions. Surely by this time
it ought to be manifest that if the courts may not adjudge invalid and
refuse to give force and effect to unconstitutional enactments, it
is of little or no use to declare in constitutions that legislatures
shall not pass bills of attainder, or ex post facto laws, or laws
abridging the freedom of speech, or of the press, or prohibiting the
free exercise of religion, or denying the right to trial by jury, or
imprisoning without trial, or suspending the writ of habeas corpus, or
confiscating private property.
Speaking on this subject of judicial power and duty, Hamilton in the
"Federalist" used language which cannot be too often repeated. He
clearly showed that in 1788 it was understood and contemplated that the
courts should exercise the power to adjudge invalid any statute which
was in conflict with the Constitution. In fact, such power had then
already been exercised by state courts. He said that constitutional
limitations "can be preserved in practice no other way than through the
medium of courts of justice, whose duty it must be to declare all acts
contrary to the manifest tenor of the Constitution void. Without this,
all the reservation of particular rights or privileges would amount to
nothing.... There is no position which depends on clearer principles
than that every act of a delegated authority, contrary to the tenor of
the commission under which it is exercised, is void. No legislative
act, therefore, contrary to the Constitution, can be valid. To deny
this would be to affirm that the deputy is greater than his principal;
that the servant is above his master; that the representatives of
the people are superior to the people themselves; that men acting by
virtue of powers may do not only what their powers do not authorize,
but what they forbid.... The interpretation of the laws is the proper
and peculiar province of the courts. A constitution is, in fact, and
must be regarded by the judges, as a fundamental law. It therefore
belongs to them to ascertain its meaning, as well as the meaning of
any particular act proceeding from the legislative body. If there
should happen to be an irreconcilable variance between the two, that
which has the superior obligation and validity ought, of course, to be
preferred; or, in other words, the Constitution ought to be preferred
to the statute; the intention of the people to the intention of their
agents. Nor does this conclusion by any means suppose a superiority
of the judicial to the legislative power. It only supposes that the
power of the people is superior to both; and that where the will of the
legislature, declared in its statutes, stands in opposition to that
of the people, declared in the Constitution, the judges ought to be
governed by the latter rather than the former. They ought to regulate
their decisions by the fundamental laws, rather than by those which are
not fundamental."[19]
Equally conclusive and equally worthy of constant repetition is the
reasoning of Chief Justice Marshall in Marbury _vs._ Madison, where
he said: "To what purpose are powers limited, and to what purpose is
that limitation committed to writing, if these limitations may, at any
time, be passed by those intended to be restrained? The distinction
between a government with limited and unlimited powers is abolished, if
those limits do not confine the persons on whom they are imposed, and
if acts prohibited and acts allowed are of equal obligation. It is a
proposition too plain to be contested, that the Constitution controls
any legislative act repugnant to it; or, that the legislature may
alter the Constitution by an ordinary act. Between these alternatives
there is no middle ground. The Constitution is either a superior
paramount law, unchangeable by ordinary means, or it is on a level
with ordinary legislative acts, and, like other acts, is alterable
when the legislature shall please to alter it. If the former part
of the alternative be true, then a legislative act contrary to the
Constitution is not law: if the latter part be true, then written
constitutions are absurd attempts, on the part of the people, to limit
a power in its own nature illimitable."[20]
This decision of the Supreme Court to the effect that it is the duty
and within the power of the courts to construe constitutions and to
refuse to enforce unconstitutional enactments was rendered in 1803.
Yet, notwithstanding that the Constitution of the United States has
been amended four times since that decision, and that every state
constitution has been again and again remodeled or amended, no American
constitution has ever denied to the courts the power to construe
constitutions or the duty to refuse to enforce statutes which are in
conflict with constitutional limitations. If the power to declare void
any statute in conflict with the Constitution of the United States
was deemed necessary in 1788 when Hamilton was writing his famous
essays, it certainly ought to be far more necessary in our day of
multiform legislation, vast increase in the functions of the state, and
incompetent, reckless and oppressive class legislation interfering in
almost every conceivable manner with the rights and liberties of the
individual.
Moreover, the Constitution of the United States would probably never
have been adopted if the people had understood, as is now pretended,
that Congress was to be at liberty to disregard constitutional
limitations and guaranties and that there would be no way whatever of
preventing a violation by Congress of the constitutional rights of the
individual except at the polls. All students of our history know that
the Constitution was accepted by the people upon the distinct pledge
that amendments embodying a bill of rights to protect the individual
against Congress would be immediately adopted. And one of the first
acts of the First Congress in September, 1789, was to submit the ten
amendments known as the federal bill of rights, which were thereupon
ratified by the states and became an integral part of the Constitution.
But of what avail or benefit were these amendments if Congress was not
to be effectively restrained and bound by them? It is no exaggeration
to say that if the courts should now be deprived of the power to
protect litigants who invoke constitutional guaranties and should
be compelled to enforce, as valid laws, statutes which violate the
limitations upon legislative power which the people have deliberately
embodied in their fundamental law, our constitutions would become
dead letters, and we might as well turn to the pure and unrestrained
democracy of Greece and await her fate.
In an inspiring address delivered this year before the New York State
Bar Association on the subject of judicial decisions and public
feeling, Senator Root eloquently said: "A sovereign people which
declares that all men have certain inalienable rights, and imposes
upon itself the great impersonal rules of conduct deemed necessary
for the preservation of those rights, and at the same time declares
that it will disregard those rules whenever, in any particular case,
it is the wish of a majority of its voters to do so, establishes
as complete a contradiction to the fundamental principles of our
government as it is possible to conceive. It abandons absolutely the
conception of a justice which is above majorities, of a right in the
weak which the strong are bound to respect. It denies the vital truth
taught by religion and realized in the hard experience of mankind, and
which has inspired every constitution America has produced and every
great declaration for human freedom since Magna Carta--the truth that
human nature needs to distrust its own impulses and passions, and to
establish for its own control the restraining and guiding influence of
declared principles of action."
In many of the current assaults upon the judicial department,
in support often of schemes having their birthplace on the
continent of Europe, we find the complaint that in declaring
statutes unconstitutional the courts in this country--state and
federal--exercise greater power than the courts of other countries are
authorized to exercise. As if that were an argument against American
institutions! Every schoolboy knows that the framers intended that our
government should differ from every other government in the world. The
founders not only intentionally departed from the examples of existing
governments, but anxiously sought to establish a new form of republican
government, which would perpetuate the spirit of the Declaration of
Independence, secure the inalienable rights of the individual, and
protect the minority against the oppression or tyranny of the majority.
It was because these rights of the individual against majorities and
every form of governmental power were to be made secure and sacred, as
the founders believed, that we were to differ from other governments.
And the essential and effective feature of that difference was to lie
in the power vested in the judicial department to uphold and protect
these rights. High sounding declarations of the rights of man would
mean very little if they were not to be enforceable by the courts.
When our form of government is compared with that of other countries,
and we are told that in England or in France or elsewhere so-called
progressive measures have been forced into immediate operation by
the will of the majority, and that the courts there were powerless
to interfere, is it seriously intended to suggest to the people
of the United States that they should, therefore, cast aside all
constitutional restraints, all their ancient and honest constitutional
principles, and leave the protection of life, liberty and property
wholly in the hands of the legislative branch? Are there not still
certain rights which even those who are assailing our institutions,
under the protection of the very Constitution they deride, would want
to have protected by our courts? When it is urged that the courts
should not have power to declare an act unconstitutional, but should
be compelled to enforce all legislative enactments although some of
them might conflict with the Constitution, is it realized that the bill
of rights would then be left to the arbitrary discretion or caprice
of the legislature, and that consequently it would be of no more
practical protection to the individual than the paper constitutions
of some of the South American republics which, too, contain eloquent
declarations of the rights of the individual? Is it forgotten or
overlooked that in England and France and all the other countries with
whose systems of government ours is being compared, the legislative
power is practically supreme, and that it can outlaw or disseize or
imprison at its mere will--that it can deny religious liberty, abridge
the freedom of speech or of the press, pass bills of attainder and ex
post facto laws, suspend the writ of habeas corpus, impose cruel and
unusual punishments, deny to the individual accused of crime the right
to a jury-trial or even any hearing at all, confiscate private property
without compensation, and impair the obligation of contracts?
Let us, for example, suppose that Congress or a state legislature saw
fit to imprison those who did not profess the religion of the majority,
or observe its forms and tenets. Who could then protect the minority
against such tyrannical enactments except the courts, and how could
the courts shield them save by declaring the statute unconstitutional
and void and refusing to enforce it? We have only to go back a few
generations to find just such laws in England and in the American
colonies, and it is the repetition of them that our constitutions seek
to prevent. Suppose again that Congress or a state legislature should
pass a statute abridging the freedom of speech or of the press and
making those who violated the statute subject to criminal prosecution
and imprisonment. How could the individual be then protected except
by the judiciary, and how could the judiciary protect him unless by
exercising the power to declare the statute unconstitutional?
Do the agitators who are attacking our constitutional system explain
to their listeners that in the foreign governments with which they
are making comparisons the legislative power could compel workmen
in any trade to work as many hours a day, at such rates of wages,
and under such conditions as the majority saw fit to enact? Suppose
that the Pennsylvania legislature should pass a statute compelling
laborers in coal mines to labor twelve or more hours a day for a
compensation fixed by it and providing that refusal should constitute
a crime. Or similarly in the case of railroad employees. In doing so,
the legislature would find a precedent in the famous English Statute
of Labourers as well as in numerous other European enactments. The
Pennsylvania legislature might pass an act, similar to that enacted by
the British parliament in 1720 and again in 1800, making it a crime
for laborers to combine to obtain an advance of wages or to lessen or
alter their hours of work. Is it inconceivable that the time may come
when the majority of the voters in Pennsylvania will believe that it is
imperative thus to regulate labor in coal mines and on the railroads,
both of which industries are indispensable, serve every household in
the state, affect every individual, rich or poor, and compel all to pay
tribute? Might not prejudice and self-interest tempt or impel to such
a statute, and might not the majority enact it, particularly if those
affected were aliens without political power? Is it inconceivable that
the owners of the coal mines and the railroads may some day control a
majority in the legislature? But how could these miners and railroad
employees be protected from such enactments and criminal prosecutions
thereunder unless the courts had the power to declare statutes
unconstitutional and to refuse to enforce them because depriving the
individual of his constitutional rights?
In nine cases out of ten the answer to these suggestions by those who
to-day are assailing the judicial department would undoubtedly be
that no one intends to go to any such extreme, and that no one wishes
to be placed or to place any one else entirely at the mercy of the
legislature. Thus, they would concede that some rights should still be
safeguarded by the courts. But does not this answer contain the gist of
the whole problem and the whole principle and virtue of the American
system of constitutional restraints? If the critics of our system
would have some rights, and particularly their own, protected by the
courts, must they not then confess that in truth they only wish changes
where the rights of others are concerned, and that they would cling
to the Constitution and invoke the protection of the judicial power
in all those respects in which their own personal liberty and their
own personal and property rights are affected? Chief Judge Cullen of
the New York Court of Appeals recently said that "the great misfortune
of the day is the mania for regulating all human conduct by statute,
from responsibility for which few are exempt, since many of our most
intelligent and highly educated citizens, who resent as paternalism
and socialism legislative interference with affairs in which they are
interested, are most persistent in the attempt to regulate by law the
conduct of others."[21]
I do not doubt that if we could have an exhaustive debate before
a great tribunal of American public opinion and could step by
step analyze and sift the arguments against the judicial power in
constitutional cases, we would find in the final analysis that those
who are so fiercely charging the courts with usurping power by refusing
to enforce unconstitutional enactments would still want the continued
protection of the courts so far as their own constitutional rights and
liberties were concerned, and that they were only asking modification
and curtailment in respect of the rights and liberties of others. I
am confident that if it were left to the people of the United States
to determine by their votes the simple question whether they would
place in the hands of Congress or of their state legislatures the
fundamental, elemental, inalienable rights which every American citizen
now enjoys--the inalienable rights proclaimed in the Declaration of
Independence--an overwhelming vote would be cast against any such
change. Indeed, support for this conviction may be found in the recent
experience of Australia, that hotbed of radicalism. An attempt by
constitutional amendment to curtail the power of the judiciary in
labor controversies and to confer upon the Australian parliament all
power necessary to deal with labor matters was there the subject of a
referendum and met with a decisive defeat at the polls. Are we likely
to be less conservative than the Australians, or to be less mindful of
the necessity for wise constitutional guaranties and restraints?
The truth is that our constitutions, national and state, do not stand
in the way of any fair and just exercise of what is called the police
power, or of measures for social progress or social justice, and
that they do not prevent reasonable and just regulations tending to
secure the health and promote the welfare of the community at large,
or the enactment of proper and reasonable factory laws or proper and
reasonable workmen's compensation acts. The main source of trouble is
that the statutes which the courts are compelled to refuse to enforce
are very often hastily and crudely drawn, and are often inherently
unreasonable and unjust.
But, even if this be not so; even if the people, after full statement
of the facts and thorough explanation of the effect of the change, upon
mature consideration desire to vest greater power in our legislatures,
or to curtail the power of the courts, the means are within their
reach. In New York and in other states, the Constitution can be easily
amended within two years.
It has been repeatedly asserted that the Constitution of the United
States has become practically unamendable, when as a matter of fact its
amendment does not involve any greater difficulties than were intended
or than would seem reasonably necessary, or than would be provided
if we were now framing a new national constitution. The prescribed
machinery of a vote by two-thirds of both houses of Congress and
ratification by three-fourths of the states simply compels deliberation
and prevents hasty and unconsidered action. If the people of the
country really desire a particular amendment to the Constitution of the
United States, it ought to be readily obtainable within less than two
years.
Thus, the first ten amendments were proposed by Congress in September,
1789, and were adopted in those days of slow travel and difficult
communication by eight states within six months and by the requisite
three-fourths within two years. The twelfth amendment, proposed in
1803, was ratified in nine months. The thirteenth amendment, proposed
by Congress in 1865, was ratified by the legislatures of twenty-seven
out of the then thirty-six states within ten months; and the fifteenth
amendment, the latest, proposed in February, 1869, was ratified by
twenty-nine out of the thirty-seven states within one year. The delay
in the adoption of the proposed sixteenth amendment authorizing
Congress to levy an income tax is due wholly to the fact that there is
a serious difference of opinion as to whether or not this power should
be conferred, although the advocates of the amendment confidently
proclaimed the existence of an almost universal desire on the part of
the people for such an amendment to the Constitution.[22]
One of the most insidious suggestions that can possibly be made to
the people at large is that there is an insurmountable difficulty
in securing amendments to our constitutions, just as misleading and
dangerous as it is for them to be told that their desires are being
thwarted by the judiciary and that they must accomplish reforms either
by coercing the courts or by undermining the foundations of their
constitutions. The future contentment of the people requires that
they shall feel that the governments, state and federal, are their
governments, that they themselves are ultimately the sovereign power,
and that they are at liberty to amend the organic law from time to
time as their mature and deliberate judgment shall deem necessary
or desirable. All that the conservatives can ask or do ask is that
the people shall act deliberately and under circumstances calculated
to afford time and opportunity for full explanation and a full
understanding of the scope and tendency of the proposed changes, to
the end that errors may be discovered and exposed, that theorizing,
sentimentalism, clamor and prejudice may exhaust themselves, and that
the sober second thought of every part of the country may be asserted.
If it be then determined to amend our constitutions, even to the extent
of placing life, liberty and property at the unrestrained discretion
and mercy of our legislators, the will of the sovereign people will
have to be obeyed. Let us hope and pray, however, that when amendments
are adopted, they will be conservative and wise, that the rights of the
minority as against the majority will not be heedlessly sacrificed for
the temporary advantage of one class over another, and that it will
be appreciated that individual liberty should be the vital concern
of every man, rich or poor, as being essential to the perpetuation
of the institutions which we cherish as peculiarly and preeminently
American. Let us especially try to avoid permitting any class to make
use of constitutional amendments or of statutory enactments for its own
special purposes. Let us, whilst meeting in full sympathy, generosity
and charity the legitimate demands of the laboring classes and of
the poor and humble, nevertheless keep our eyes open to prevent any
such vicious results as would arise from constitutional or statutory
provisions framed nominally for the benefit of labor but really for the
purpose of serving the interests of a particular class against another,
as we have seen was the case in the New York tenement-house legislation
of 1884. In the meantime, pending such amendments in the due, orderly
and reasonable course prescribed by our constitutions, let us be
faithful and devoted to our constitutional system, which for more than
a century has carried us through every storm and so often "in spite of
false lights on the shore." Let us also be truthful and fair and, if
possible, temperate in our criticism of all public officials, whether
legislative, executive, or judicial.
Finally, a word about the special duty of our profession. It is not
the pulpit nor the press, but the law which reaches and touches every
fibre of the whole fabric of life, which surrounds and guards every
right of the individual, which grasps the greatest and the least of
human affairs, and which comprehends the whole community and every
human right. We lawyers, if worthy of our profession, are in duty
bound not merely to defend constitutional guaranties before the courts
for individual clients, but to teach the people in season and out of
season to value and respect the constitutional rights of others and to
respect and cherish the institutions which we have inherited. It is our
duty to preach constitutional morality to the rich and to the poor, to
all trades and to all professions, to all ranks and to all classes, in
the cities and on the plains. It is for us to convince the members of
every class that, in the long run, disregard of the fundamental rights
of others would be in conflict with their own permanent welfare and
happiness, and cannot be permitted if we are to remain a free people.
What higher duty, what nobler task could engage us than to teach the
value and sacredness of the ancient and honest principles of justice
embodied in our constitutions, immortal as the eternal truths from
which they derive their origin, and to preach to all classes the virtue
of political justice and self-imposed political restraints, without
which there can be no true constitutional morality.