CHAPTER V

THE FEDERAL JUDICIARY

No part of our Constitution has received less adverse criticism than

that which relates to the powers and tenure of the judiciary.

Constitutional writers have almost without exception given it their

unqualified approval, claiming that its wisdom is established beyond

question by the political experience of the English-speaking race. To

express a doubt as to the soundness of this view is to take issue with

what appears to be the settled and mature judgment of the American

people.

Moreover, the authority of the courts is "the most vital part of our

government, the part on which the whole system hinges."[52] This is true

for the reason that the Federal judiciary is not only the most important

of our constitutional checks on the people, but is also the means of

preserving and enforcing all the other checks. To enable the Federal

judges to exercise these important and far-reaching powers, it was

necessary to make them independent by giving them a life tenure. This

provision was in perfect harmony with the general plan and purpose of

the Constitution, a document framed, as we have seen, with a view to

placing effectual checks on the power of the majority. As a means to the

end which the framers of the Constitution had in view, the independence

of the judiciary was an admirable arrangement.

Hamilton says: "Upon the whole, there can be no room to doubt that the

Convention acted wisely in copying from the models of those

constitutions which have established _good behavior_ as the tenure of

their judicial offices, in point of duration; and that so far from being

blamable on this account, their plan would have been inexcusably

defective, if it had wanted this important feature of good government.

The experience of Great Britain affords an illustrious comment on the

excellence of the institution."[53]

This is quoted with approval by Story in his Commentaries on the

Constitution and this same line of argument has been followed by legal

and political writers generally. But with all due respect for the

eminent authorities who have placed so much stress on the political

experience of other countries, we may venture to ask if the parallel

which they have assumed really exists. Is the use made of this argument

from analogy warranted by the facts in the case? Are we sure that the

political experience of England proves the wisdom of an independent

judiciary? This can best be answered by referring to the circumstances

which gave rise to the doctrine that the judges should be independent.

In England formerly the Crown appointed the judges and could remove

them. This power of appointment and removal placed the courts under the

control of the King and made it possible for him to use them as a means

of oppressing the people. A striking example of the way in which this

power could be abused was seen in the career of the notorious Jeffreys,

the pliant judicial tool of the cruel and tyrannical James II. To guard

against a repetition of this experience it was urged that the judges be

made independent of the King.

This was done in 1701 by the Act of Settlement which provided that

judges should be removed only on an address from Parliament to the

Crown. This deprived the King of the power to remove judges on his own

initiative and virtually gave it to Parliament. The object of this

provision was to place a check in the interest of the people upon the

arbitrary power of the Crown. It made the judges independent of the

King, but at the same time established their responsibility to

Parliament by giving the latter the right to demand their removal.[54]

The statement so often made and so generally believed that the American

judicial system was modeled after that of Great Britain will not bear

investigation. English judges are not and never have been independent in

the sense in which that word is used with reference to the Federal

judiciary of the United States. In making the judges independent of the

King, Parliament had no intention of leaving them free to exercise

irresponsible powers. To have made them really independent would have

been to create a new political power of essentially the same character

and no less dangerous than the power of the King which they were seeking

to circumscribe.

"In England," says Jefferson, "where judges were named and removable at

the will of an hereditary executive, from which branch most misrule was

feared, and has flowed, it was a great point gained, by fixing them for

life, to make them independent of that executive. But in a government

founded on the public will, this principle operates in an opposite

direction, and against that will. There, too, they were still removable

on a concurrence of the executive and legislative branches. But we have

made them independent of the nation itself."[55]

There is, as a matter of fact, nothing in the political experience of

Great Britain to support the belief in an independent judiciary. The

judges there do not constitute a co-ordinate branch of the government

and can not enforce their opinion in opposition to that of Parliament.

Instead of being independent, they are strictly dependent upon

Parliament whose supreme power and authority they are compelled to

respect.

This being the case, it is hardly necessary to observe that the courts

in England do not exercise legislative functions. The power to decide

upon the wisdom or expediency of legislation is vested exclusively in

Parliament. The courts can not disregard a statute on the ground that it

is in conflict with the Constitution, but must enforce whatever

Parliament declares to be the law. As the judiciary under the English

system has no voice in the general policy of the state, the tenure of

judges during good behavior carries with it no power to thwart the

popular will.

The provision in the Constitution of the United States for the life

tenure of a non-elective judiciary serves, however, an altogether

different purpose. It was designed as a check, not upon an irresponsible

executive as was the case in England, but upon the people themselves.

Its aim was not to increase, but to diminish popular control over the

government. Hence, though professing to follow the English model, the

framers of the Constitution as a matter of fact rejected it. They not

only gave the Federal judges a life tenure, but made that tenure

unqualified and absolute, the power which Parliament had to demand the

removal of judges being carefully witheld from the American Congress.

This reversed the relation which existed between the legislative and

judicial branches of government under the English system and raised the

judiciary from a dependent and subordinate position to one that made it

in many respects supreme. The most important attribute of sovereignty,

that of interpreting the Constitution for the purposes of law-making,

which belonged to Parliament as a matter of course, was withheld from

Congress and conferred upon the Federal judiciary. Not only, then, did

the framers of the Constitution depart from the English model in making

the Federal judiciary independent of Congress, but they went much

farther than this and conferred upon the body whose independence and

irresponsibility were thus secured, powers which under the English

system were regarded as the exclusive prerogative of a responsible

Parliament. This made our Supreme judges, though indirectly appointed,

holding office for life and therefore independent of the people, the

final interpreters of the Constitution, with power to enforce their

interpretation by declaring legislation null and void. A more powerful

check upon democratic innovation it would be hard to devise.

The main reason for making the Federal judges independent and

politically irresponsible has not been generally recognized. Thus, in a

recent work Professor Channing, while expressing some disapproval of

this feature of our system, fails to offer a satisfactory explanation of

its origin. "Perhaps nothing in the Constitution of the United States is

more extraordinary," he tells us, "than the failure of that instrument

to provide any means for getting rid of the judges of the Federal courts

except by the process of impeachment. In England, in Massachusetts and

in Pennsylvania, judges could be removed by the executive upon address

by both branches of the legislative body.[56] In none of these cases was

it necessary to allege or to prove any criminal act on the part of the

judge. In colonial days the tenure of the judicial office had been of

the weakest. In the royal provinces, the judges had been appointed by

the Crown and had been removable at pleasure. In the charter colonies,

the judges had been appointed by the legislature, and their tenure of

office was generally for one year. The precariousness of the judicial

office in the royal provinces had more than once led to attempts on the

part of the colonists to secure greater permanency, because a permanent

judiciary would afford them protection against the royal authorities.

All attempts of this kind, however, had been defeated by the negative

voice of the government of England. Possibly the permanence of judicial

tenure which is found in the Constitution of the United States may be

regarded in some sort as the result of this pre-revolutionary

contest."[57]

As a matter of fact, however, there is nothing extraordinary or

difficult to explain in this permanency of judicial tenure which the

Constitution established. It was not in the charter colonies where

annual legislative appointment of judges was the rule, but in the royal

provinces that efforts were made by the people to secure greater

permanency of judicial tenure. They wished to give the judges more

independence in the latter, because it would be the means of placing a

check upon irresponsible authority, but were satisfied with a short term

of office for judges in the colonies where they were elected and

controlled by the legislature. Any explanation of the permanent tenure

of our Federal judges "as the result of this pre-revolutionary contest"

is insufficient. It was clearly a device consciously adopted by the

framers of the Constitution, not for the purpose of limiting

irresponsible authority, but for the purpose of setting up an authority

that would be in large measure politically irresponsible.

Conservative writers while giving unstinted praise to this feature of

the Constitution have not explained its real significance. They have

assumed, and expect us to take it for granted, that the Federal

judiciary was designed as a means of making the will of the people

supreme; that its independence and exalted prerogatives were necessary

to enable it to protect the people against usurpation and oppression at

the hands of the legislative branch of the government.

Hamilton tells us, "The standard of good behavior for the continuance in

office of the judicial magistracy, is certainly one of the most valuable

of the modern improvements in the practice of government. In a monarchy,

it is an excellent barrier to the despotism of the prince; in a

republic, it is a no less excellent barrier to the encroachments and

oppressions of the representative body....

"The complete independence of the courts of justice is peculiarly

essential in a limited constitution. By a limited constitution, I

understand one which contains certain specified exceptions to the

legislative authority.... Limitations of this kind can be preserved in

practice no other way than through the medium of the courts of justice,

whose duty it must be to declare all acts contrary to the manifest tenor

of the Constitution void....[58]

"Some perplexity respecting the rights of the courts to pronounce

legislative acts void, because contrary to the Constitution, has arisen

from an imagination that the doctrine would imply a superiority of the

judiciary to the legislative power. It is urged that the authority which

can declare the acts of another void, must necessarily be superior to

the one whose acts may be declared void....

"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.

"If it be said that the legislative body are themselves the

constitutional judges of their own powers, and that the construction

they put upon them is conclusive upon the other departments, it may be

answered, that this can not be the natural presumption, where it is not

to be collected from any particular provisions in the Constitution. It

is not otherwise to be supposed that the Constitution could intend to

enable the representatives of the people to substitute their _will_ to

that of their constituents. It is far more rational to suppose that the

courts were designed to be an intermediate body between the people and

the legislature, in order, among other things, to keep the latter within

the limits assigned to their authority. 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; in other words, the Constitution ought to be preferred to

the statute, the intention of the people to the intention of their

agents....

"This independence of the judges is equally requisite to guard the

Constitution and the rights of individuals from the effects of those ill

humours which the arts of designing men, or the influence of particular

conjunctures, sometimes disseminate among the people themselves, and

which, though they speedily give place to better information, and more

deliberate reflection, have a tendency, in the mean time, to occasion

dangerous innovations in the government, and serious oppressions of the

minor party in the community."[59]

This argument for an independent judiciary, which has been adopted by

all writers who have attempted to defend the system, may be summarized

as follows:

The Constitution being the solemn and deliberate expression of the will

of the people, is the supreme law of the land. As such it enumerates the

powers of the several branches of the government and sets limits to

their authority. Any act, therefore, on the part of the agents or

representatives of the people, which exceeds the authority thus

delegated, is in violation of the fundamental law and can not bind those

whom they profess to represent.

These checks upon the agents and representatives of the people can not

be enforced, however, if each branch of the government is to be

permitted to determine for itself what powers the Constitution has

conferred upon it. Under such a system Congress would overstep the

limits which have been placed upon its authority and substitute its own

will for the will of the people. To prevent this the framers of the

Constitution placed the courts, in their scheme of government, between

the people and the legislature and gave them power to determine and

enforce the constitutional limitations on the authority of Congress.

This put the Constitution and the rights and liberties of the people

under the protection of their natural guardian, the Federal judiciary,

and thereby secured the people against the danger of legislative

tyranny.

We must not forget the circumstances under which Hamilton wrote this

defence of the Federal judiciary. Although the Constitutional Convention

had spared no pains to prevent the publication of its proceedings, the

feeling was more or less general that the whole movement was a

conspiracy against popular government.

"The charge of a conspiracy against the liberties of the people," said

Hamilton, "which has been indiscriminately brought against the advocates

of the plan [the Constitution], has something in it too wanton and too

malignant not to excite the indignation of every man who feels in his

own bosom a refutation of the calumny. The perpetual changes which have

been rung upon the wealthy, the well-born, and the great, have been such

as to inspire the disgust of all sensible men. And the unwarrantable

concealments and misrepresentations which have been in various ways

practiced to keep the truth from the public eye have been of a nature to

demand the reprobation of all honest men."[60]

The evidence now accessible to students of the American Constitution

proves that the charges of "concealments and misrepresentations" made

with this show of righteous indignation against the opponents of the

Constitution might have justly been made against Hamilton himself. But

knowing that the views expressed in the Federal Convention were not

public property, he could safely give to the press this "refutation of

the calumny."

The publication of the debates on the Constitution at that time would

have shown that the apprehensions of the people were not entirely

without justification. The advocates of the new form of government did

not propose to defeat their own plans by declaring their real

purpose--by explaining the Constitution to the people as they themselves

understood it. For it was not to be supposed that the people would

permit the adoption of a form of government the avowed object of which

was to limit their power. Therefore the conservatives who framed the

Constitution and urged its ratification posed as the friends of

democracy. Professing to act in the name of, and as the representatives

of the people, they urged them to accept the Constitution as a means of

restraining their agents and representatives and thereby making their

own will supreme. It was not the aim of these articles, written, as they

were, to influence public opinion, to explain the real purpose of the

Constitution, but rather to disguise its true character.

In this species of political sophistry Hamilton was a master. It is, to

say the least, strange that the misstatement of historical facts, false

analogies and juggling of popular catch-words which constitute his

defence of the Federal judiciary should have been so often referred to

as an example of faultless logic and a complete vindication of the

system. Hamilton's interpretation of the Constitution as contained in

these articles was merely for popular consumption, and not a frank and

unequivocal expression of what he himself really believed. He was an

uncompromising opponent of democracy and considered the English

government of that day, with its hereditary monarchy and aristocracy,

the best form of government ever devised.[61]

He favored therefore as near an approach to the English system as the

circumstances of the case would permit. According to the plan which he

submitted to the Convention the executive branch of the government was

to be placed beyond the reach of public opinion by a method of

appointment designed to guard against the choice of a popular favorite

and by life tenure. Not only did he wish to make the President

independent of the people, but he proposed to give him an absolute veto

on all acts of Congress. Moreover, the President was to appoint the

governors of the various states, and these, like the royal governors

before the Revolution, were to have an absolute veto on the acts of the

state legislatures.[62] This would have made the President a monarch in

all but name, and though independent of the people, have given him

power to thwart legislation which no majority in Congress, however

great, could override.

But this did not go far enough in the direction of providing checks on

popular legislation to suit Hamilton. The members of the upper house of

Congress were, like the President, to be indirectly elected and to hold

office for life. And finally over and above Congress was to be placed a

Supreme Court whose members, by their mode of appointment and life

tenure, were to be independent of the people. This body, which was to be

the final interpreter of the Constitution, was designed as an additional

safeguard against democratic legislation. The lower house of Congress

was the only branch of the government in which any provision was made,

under Hamilton's plan, for the representation of public opinion. Through

the House of Representatives the people were to have an opportunity to

propose legislation, but no power to enact it, or to control the general

policy of the government.

The refusal of the Convention to endorse the scheme of government

proposed by Hamilton must not be understood as implying lack of sympathy

with the political views which it embodied. With his main purpose, that

of effectually curbing the power of the majority, nearly all the members

of that body were in full accord. They were, however, shrewd

experienced men of affairs who understood the temper of the people and

knew that their plan of political reorganization could be carried

through only by disguising its reactionary character and representing it

as a democratic movement. To have submitted the Constitution in the form

in which it was proposed by Hamilton would have defeated their purpose.

It was too obviously undemocratic, inasmuch as it provided for a strong

centralized government only one branch of which was to be elected by the

people, while the other three were to be placed beyond the reach of

public opinion through indirect election and life tenure. The

Constitution as framed and submitted was more democratic in appearance,

though it really contained all that was essential in Hamilton's plan.

Life tenure for the President and Senate was discarded, it is true, but

indirect election was expected to ensure their independence. The

absolute veto on Federal and state legislation which Hamilton proposed

to give to a permanent executive was the most serious practical

objection to his scheme, since it showed too clearly the purpose of the

Convention to make the aristocratic element supreme not only in the

general government but in the states as well. In form and appearance the

Constitution merely gave the President a qualified negative on the acts

of Congress; but in reality the Convention went much farther than this

and conferred the absolute veto on federal and state legislation

contended for by Hamilton. The power was merely transferred from the

President in whose hands he had proposed to place it, and given to the

Supreme Court. The end which he had in view was thus attained without

arousing the opposition which would have been inevitable had there been

anything in the Constitution to indicate that such a power was intended

to be conferred.

These facts disclose the true motive for Hamilton's untiring efforts in

behalf of the Constitution. He desired its adoption, not because he

believed that it would make the will of the people supreme, as his above

quoted references to _principal_ and _agent_ and _master_ and _servant_

would seem to imply, but for the opposite reason that it would make the

government largely independent of public opinion. As a matter of fact,

Hamilton had no use whatever for a political system which assumed that

the people were a _master_ or _principal_ and the government merely

their _servant_ or _agent_. The chief merit of the Constitution from his

point of view was not its acceptance, but its repudiation of this

principle. Had it been framed on the theory that the will of the people

is the supreme law of the land, no one would have been more bitterly

opposed to its adoption than Hamilton himself. That he gave it his

unqualified support is the best evidence that he did not believe that it

would make the will of the people supreme.

No intelligent man who carefully reads Hamilton's argument in defence of

the Federal judiciary could be misled as to his real views. His dread of

democracy is clearly seen in his desire to exalt the Supreme Court and

subordinate Congress, the only branch of the government in which the

people were directly represented. His seeming anxiety lest the

legislative body should disregard the will of the people was a mere

demagogic attempt to conceal his real motive. Had this been what he

really feared, the obvious remedy would have been the complete

responsibility of Congress to the people. In fact, this was necessarily

implied in the doctrine of principal and agent which he professed to

accept, but which found no recognition either in the constitution which

he himself had suggested, or in the one finally adopted. To this theory

of government the system which he defended was in reality diametrically

opposed. Under the guise of protecting the people against

misrepresentation at the hands of Congress, it effectually limited the

power of the people themselves by tying the hands of their responsible

agents. It deprived the people of the power to compel the enactment of

law by making the consent of the Supreme Court necessary to the

enforcement of all legislation, federal and state. This was a

substantial compliance with Hamilton's proposal to give an absolute veto

to an independent and permanent executive. It was a matter of but

little consequence whether this power was conferred on a single person,

as the President, or on a body, as the Supreme Court, provided the

manner of appointment and tenure of those in whose hands it was placed,

were such as to ensure an independent exercise of the power thus

conferred. The result would be the same in either case: the law-making

power would be placed beyond the reach of popular control.

To allow the legislative body to be "the constitutional judges of their

own power," Hamilton tells us, would be to affirm "that the servant is

above his master." Hence it is necessary, he argues, to divest Congress

of all authority to determine the extent of its own powers. To

accomplish this the Supreme Court was made the constitutional judge of

the powers of Congress and of its own powers as well. Hamilton's

argument involves the assumption that, while it is dangerous to allow a

frequently elected and responsible branch of the government to determine

the extent of its own powers, it is at the same time eminently wise and

proper to give, not only this power, but also the power to determine the

authority of all other branches of government, to a permanent body whom

the people neither elect nor control. His constant reference to the

danger of legislative oppression was merely a mask for his hatred of

popular government. He was anxious to curb the power of Congress because

he feared that public opinion would too largely influence the

proceedings of that body. On the other hand, he saw no danger of

executive or judicial tyranny since these branches of the government

were expected to be independent of public opinion. Hamilton's purpose

was to limit the power of the people by subordinating that part of the

government in which they were directly represented and strengthening

those parts over which they had no direct control. His defence of the

Constitution is thus really an argument against responsible government

and a defence of the principles underlying monarchy and aristocracy.

As the English judiciary is really an offshoot from the executive, the

power of the court to declare legislation null and void may be regarded

as merely a phase of the executive veto. No evidence of this can be

found, it is true, in the constitutional history of England during the

eighteenth and nineteenth centuries. But if we go back to the period

preceding the revolution of 1688, it seems to be clearly established

that the English courts claimed, and in a few instances exercised, the

power to annul acts of Parliament. As late as 1686, in the case of

Godden v. Hales, "the Court of King's Bench actually held that important

provisions of the statute of 25 Charles II, cap. 2, were void because

conflicting with the King's rightful prerogative."[63] When we remember

that the courts were then under the control of the King, it is not

surprising that they should have attempted to exercise this power in

defence of the royal prerogative. But with the Revolution of 1688, which

established the supremacy of Parliament, the last trace of the judicial

negative disappeared. From that time on the right of Parliament to be

the constitutional judge of its own powers has not been seriously

questioned. Even the veto power of the King soon became obsolete, though

in theory it for a time survived.

Such was the constitutional status of the English judiciary when the

American colonies asserted their independence. The new state

constitutions adopted at the outbreak of the war, as has been shown in a

previous chapter, represented the more democratic thought of the period

and were really revolutionary in character. They abolished the veto

power of the governor and failed to abolish the judicial negative only

because it did not then exist.[64] This was followed after the

Revolution by a conservative reaction which was not, however, a popular

movement. It received no general support or sympathy from the masses of

the people, but was planned and carried through by those whom we may

describe as the ruling class, and who were, for the most part, strongly

in sympathy with English political institutions. It was characterized by

real, if not avowed, hostility to the new political ideas embodied in

the Declaration of Independence and in the Revolutionary state

constitutions. Its aim was to reform the state governments by restoring,

as far as possible, the checks on democracy which the Revolutionary

movement had swept away.

The judiciary was the only branch of the state government in which the

principle of life tenure had been retained, and therefore the only one

which could be depended on to offer any effectual resistance to public

opinion. Evidently, then, the easiest and most practicable method of

accomplishing the end which the conservative classes had in view was to

enlarge the powers of the judiciary. Accordingly an effort was made at

this time in several of the states to revive and develop the judicial

veto. A practical argument in favor of this check was doubtless the fact

that it required no formal changes in the state constitutions, and, for

this reason, was less likely to arouse formidable opposition than any

avowed attempt to restore the system of checks.

When the Constitutional Convention met in 1787 the courts in five states

were beginning to claim the power to declare acts of the legislature

unconstitutional. In a Virginia case as early as 1782 the judges of the

court of appeals expressed the opinion "that the court had power to

declare any resolution or act of the legislature, or of either branch of

it, to be unconstitutional and void."[65] The court, however, did not

exercise the power to which it laid claim. It merely declared a

resolution of the House of Delegates invalid on the ground that it had

been rejected by the Senate. This case is important only as showing that

the court was then paving the way for the exercise of the power to annul

acts of the legislature.

The case of Trevett v. Weeden, decided by the Superior Court of

Judicature of Rhode Island in September, 1786, is said to be the first

in which a law was declared null and void on the ground that it was

unconstitutional.[66] The court in this case did not expressly say that

the law in question was unconstitutional and therefore void, but it

refused to recognize its validity. The power which the court exercised

to ignore a legislative act was promptly repudiated by the law-making

body, and at the expiration of their term of office a few months later,

the judges responsible for this decision were replaced by others. In

1786 or 1787 a case was decided in Massachusetts, and also one in New

Jersey, in which it is claimed that the court declared a legislative act

null and void.

The first reported case in which an act of a legislature was held to be

contrary to a _written_ constitution is that of Bayard v. Singleton,

decided by the Superior Court of North Carolina in May, 1787. James

Iredell, afterward a member of the North Carolina convention, held to

ratify the Constitution, and a judge of the United States Supreme Court,

and William R. Davie, one of the framers of the Constitution, were

attorneys for the plaintiff, the party in whose interest the law was

declared unconstitutional. This decision received much adverse criticism

at the time. The judges "were fiercely denounced as usurpers of power.

Spaight, afterwards governor, voiced a common notion when he declared

that 'the state was subject to the three individuals, who united in

their own persons the legislative and judicial power, which no monarch

in England enjoys, which would be more despotic than the Roman

triumvirate and equally insufferable.'"[67]

Iredell, in a letter to Spaight written August 26, 1787, defended the

decision as a means of limiting the power of the majority. "I conceive

the remedy of a new election," he says, "to be of very little

consequence, because this would only secure the views of a

majority...."[68] Iredell expressed what was no doubt the real purpose

of the judicial veto--the limitation of the power of the majority.

In eight of the thirteen states the doctrine that the judiciary could

refuse to enforce laws regularly enacted by the legislative body had not

even been asserted by the courts themselves, much less recognized and

accepted by the people generally. There is no evidence to warrant the

belief that this power was anywhere claimed or exercised in response to

a popular demand or that it had at this time become a firmly established

or generally recognized feature of any state government.

This being the case, there is no ground for the contention that the

power to annul acts of the legislature was necessarily implied in the

general grant of judicial authority contained in the Constitution.

Moreover, it was not expressly conferred, for the Constitution as

submitted and ratified contains no reference to this power.

"There is no provision in the Constitution of the United States ...

which clothes the judiciary with the power to declare an act of the

legislature generally null and void on account of its conceived

repugnance to the Constitution or on any other account."[69]

It has been claimed that in this respect our general government is even

less democratic than the framers of the Constitution intended. This

view, however, is not borne out by the facts. The assertion of this

far-reaching power by our national judiciary, though not expressly

authorized by the Constitution, was nevertheless in harmony with the

general spirit and intention of its framers. That the members of the

Constitutional Convention declined to confer this power in unequivocal

language does not justify the inference that they did not wish and

intend that it should be exercised by the courts.

Gouverneur Morris, who claims to have written the Constitution with his

own hand, tells us that in framing that part of it relating to the

judiciary, "it became necessary to select phrases," which, expressing

his own views, "would not alarm others."[70] There was, it is true, some

objection in the Convention to the doctrine that the Supreme Court

should have authority to decide upon the constitutionality of

Congressional legislation. Mercer and Dickinson believed that this power

should not be exercised by the judiciary.[71] But it was contended on

the other hand by Wilson, Luther Martin, Gerry, Mason, and Madison that

this power could be exercised without any provision expressly conferring

it.[72]

In view of the fact that it was maintained by leading members of the

Convention that this power could and should be exercised by the Federal

judiciary, it is but reasonable to suppose that a majority of that body

wished to confer it; for had this not been the case, the Constitution as

submitted would have contained a provision expressly withholding it. But

however much the Convention may have desired to give to the judiciary

the power to veto legislation, it could not have been done by an express

provision of the Constitution. Any such attempt would have disclosed

altogether too clearly the undemocratic reactionary character of the

proposed government and thus have prevented its adoption. This end was

attained indirectly through the general system of checks which the

Constitution imposed upon the other branches of the government and upon

the people, since it made it possible for the judiciary to assume and

exercise this power.

There is nothing to indicate that the people generally appreciated the

significance of this feature of the Constitution at the time of its

ratification. Outside of the Constitutional Convention the judicial

negative appears to have been seldom mentioned. Hamilton, the most

courageous and outspoken opponent of popular government, claimed, it is

true, that it would be the duty of the Federal courts "to declare all

acts contrary to the manifest tenor of the Constitution void."[73] In a

few of the state conventions held to ratify the Constitution the power

was referred to. Oliver Ellsworth in the Connecticut convention,[74]

James Wilson in the Pennsylvania convention,[75] and John Marshall in

the Virginia convention,[76] expressed the opinion that the Constitution

gave the Supreme Court the power to declare acts of Congress null and

void.

There is no reason for believing, however, that this was the generally

accepted notion at that time. For even Marshall himself a few years

later, as attorney in the case of Ware v. Hylton, which involved the

validity of an act of the legislature of Virginia, appears to have

defended the opposite view before the United States Supreme Court. In

that case he said:

"The legislative authority of any country can only be restrained by its

own municipal constitution: this is a principle that springs from the

very nature of society; and the judicial authority can have no right to

question the validity of a law, unless such a jurisdiction is expressly

given by the Constitution."[77] The mere fact that he presented this

argument shows that the view which he afterwards held as Chief Justice

of the United States Supreme Court was not then generally accepted. His

contention on this occasion that the judiciary can not annul an act of

the legislature unless the power be expressly conferred may have been at

variance with the opinion which he really held, but it certainly was

not opposed to what he regarded as the generally accepted view;

otherwise, his argument would have been based on an admittedly false

theory of judicial powers. The conclusion is irresistible that at this

time the right of the judiciary to declare a legislative act null and

void was not generally recognized. The framers of the Constitution

clearly understood that this power was not implied in the sense that it

was then a recognized function of the judiciary, or one necessarily

contained in the Constitution as they interpreted it to the people to

secure its adoption. It was by controlling the Executive and the Senate,

and through these the appointment of Supreme judges, that they expected

to incorporate this power in the Constitution and make it a permanent

feature of our political system.[78]

This purpose is evident in the appointments to the Supreme bench made

during the twelve years of Federalist rule that followed the adoption of

the Constitution. Of the thirteen chief and associate Justices appointed

during this period, five had been members of the Constitutional

Convention.[79] Eleven had been members of the various state

conventions held to ratify the Constitution.[80] Three, as shown by the

records of the federal and state conventions, had unequivocally

expressed themselves in favor of the exercise of this power by the

Supreme Court,[81] while another, James Iredell, had taken an active

part in securing the first reported decision in which an act of a state

legislature was declared null and void by a court on the ground that it

was contrary to a written constitution.[82] Only one in this entire list

had not taken part directly in framing or adopting the Constitution by

serving as a delegate to the federal, or a state convention, or

both.[83] All had been ardent supporters of the Constitution and were in

full sympathy with its main purpose.

It is true that Washington in the winter of 1795-6 offered the Chief

Justiceship of the United States Supreme Court to Patrick Henry, who had

been the ablest and most conspicuous opponent of the Constitution in the

Virginia convention. Henry had, however, as Presidential elector voted

for Washington for President in 1789 and had in the meantime become

reconciled to the Constitution. Moreover, while he had been opposed to

many features of the Constitution, he was from the first in full

sympathy with the judicial veto. He thought the Constitution was

defective in that it contained no assurance that such a power would be

exercised by the courts. In his argument against the ratification of the

Constitution in the Virginia convention he said:

"The honorable gentleman did our judiciary honor in saying that they had

firmness to counteract the legislature in some cases. Yes, sir, our

judges opposed the acts of the legislature. We have this landmark to

guide us. They had fortitude to declare that they were the judiciary,

and would oppose unconstitutional acts. Are you sure that your Federal

judiciary will act thus? Is that judiciary as well constructed, and as

independent of the other branches, as our state judiciary? Where are

your landmarks in this government? I will be bold to say that you can

not find any in it. I take it as the highest encomium on this country,

that the acts of the legislature, if unconstitutional, are liable to be

opposed by the judiciary."[84]

The fact that only those who were in sympathy with the Constitution were

recognized in these appointments becomes the more significant when we

remember that several of the leading states ratified it by very slender

majorities. In New York, Massachusetts, and Virginia the supporters of

the Constitution barely carried the day; yet they alone were recognized

in the five appointments to the Supreme bench from these states made

during the period above mentioned. The opponents of the Constitution

represented, moreover, not only in these states, but in the country at

large, a majority of the people. Nevertheless, true to the purpose of

those who founded our Federal government, the popular majority was

entirely ignored and the Supreme Court so constituted as to make it

represent the minority. Through these appointments the Federalists

secured an interpretation of the Constitution in harmony with their

political theories and thereby established the supremacy of the

judiciary in our scheme of government. The subsequent success of the

Supreme Court in asserting and enforcing its right to annul acts of

Congress completed the establishment in this country of a form of

government which Professor Burgess correctly describes as an

"aristocracy of the robe."[85]

The full significance of this annulling power is not generally

understood. The Supreme Court claims the right to exercise it only as

the guardian of the Constitution. It must be observed, however, that

while professing to be controlled by the Constitution, the Supreme Court

does, as a matter of fact, control it, since the exclusive right to

interpret necessarily involves the power to change its substance. This

virtually gives to the aristocratic branch of our government the power

to amend the Constitution, though this power is, as we have seen,

practically denied to the people.

We have become so accustomed to the exercise of this power by the courts

that we are in the habit of regarding it as a natural and necessary

function of the judiciary. That this is an erroneous view of the matter

is shown by the fact that this power "is scarcely dreamed of anywhere

else."[86] In other countries the power is unknown whether the

Constitution be unwritten as in England or written as in France,

Germany, and Switzerland. Nor does it make any difference whether the

government be national in character as in England and France, or federal

as in Germany, Switzerland, and Australia. In no other important country

are the courts allowed to veto the acts of the legislative body. The

exercise of this power can be justified here only on the ground that it

is indispensable as a means of preserving and perpetuating the

undemocratic character of the Constitution.

"This power [the Supreme Court] has the last word in the numberless

questions which come under its jurisdiction. The sovereign people after

a time conquers the other powers, but this Supreme Court almost always

remains beyond its reach. For more than twenty or even thirty years,

twice the _grande mortalis aevi spatium_, it may misuse its authority

with impunity, may practically invalidate a law voted by all the other

powers, or a policy unanimously accepted by public opinion. It may

nullify a regular diplomatic treaty[87] ... by refusing to enforce it by

judicial sanction, or may lay hands on matters belonging to the

sovereignty of the states and federalize them without one's being able

to make any effective opposition, for this Court itself determines its

own jurisdiction as against the state tribunals. It is one of

Blackstone's maxims that in every constitution a power exists which

controls without being controlled, and whose decisions are supreme. This

power is represented in the United States by a small oligarchy of nine

irremovable judges. I do not know of any more striking political paradox

than this supremacy of a non-elected power in a democracy reputed to be

of the extreme type. It is a power which is only renewed from generation

to generation in the midst of a peculiarly unstable and constantly

changing state of things--a power which in strictness could, by virtue

of an authority now out of date, perpetuate the prejudices of a past

age, and actually defy the changed spirit of the nation even in

political matters."[88]

It is a fundamental principle of free government that all legislative

power should be under the direct control of the people. To make this

control effective all laws must be enacted by the people themselves, or

they must at least have what practically amounts to the power of

appointing and removing their representatives. Democracy implies not

merely the right of the people to defeat such laws as they do not want,

but the power to compel such legislation as they need. The former power

they possess in any country in which they control one coordinate branch

of the legislature, even though the government be a monarchy or

aristocracy. This negative power of defeating adverse legislation is

merely the first step in the evolution of free government, and is

possessed by the people in all countries which have made much

constitutional progress. There is a vast difference, however, between a

system under which the people constitute a mere check upon the

government and one which gives them an active control over legislation.

It is the difference between a limited monarchy or aristocracy on the

one hand and a government by the people themselves on the other.[89]

If this test be applied to the government of the United States we see

that it lacks the essential feature of a democracy, inasmuch as laws can

not be enacted without the consent of a body over which the people have

practically no control. In one respect at least the American system is

even less democratic than was the English government of the eighteenth

century. The House of Commons was a coordinate branch of the legislature

and as such had a recognized right to interpret the Constitution. No

political program, no theory of state functions, could receive

legislative sanction without its approval. The House of Commons could

enforce its interpretation of the Constitution negatively since it had

an absolute veto on all legislation. On the other hand its own views and

policies could become law only in so far as they were acquiesced in by

the other branches of the law-making authority. Under this system the

accepted interpretation of the Constitution was a compromise, one to

which each branch of the legislature assented. Each of these coordinate

branches of the government was equally the guardian and protector of the

Constitution, since it had the right to interpret, and the power to

enforce its interpretation, of the legislative authority of the other

branches by an absolute veto on their interpretation of their own

powers.

This authority to act as final interpreter of the Constitution which

under the English system was distributed among King, Lords, and Commons,

was under the American scheme of government taken out of the hands of

Congress and vested in the judiciary alone. There are certain matters of

minor importance, however, concerning which the interpretation placed

upon the Constitution by other branches of the government is final. But

in interpreting the Constitution for the purpose of legislating, the

final authority is in the hands of the Federal Supreme Court. It is the

exclusive possession of this most important prerogative of a sovereign

legislative body which makes our Supreme Court the most august and

powerful tribunal in the world. Through the sole right to exercise this

power our Federal judiciary has become in reality the controlling branch

of our government. For while it has an absolute veto on the acts of

Congress, its own exercise of the highest of all legislative

authority--that of interpreting the Constitution and the laws of the

land--is unlimited and uncontrolled. It is not surprising, then, that

the Constitution as it exists to-day is largely the work of the Supreme

Court. It has been molded and developed by, and largely owes its spirit

and character to the interpretation which that body has placed upon it.

Our Supreme Court thus has what virtually amounts to the power to enact

as well as the power to annul. Congress can legislate only with the

consent of the Federal judiciary; but the latter, through its control

over the interpretation of the Constitution may in effect legislate

without the consent of the other branches of the government, and even

in opposition to them. Under the guise of an independent judiciary we

have in reality an independent legislature, or rather an independent

legislative and judicial body combined. This union of sovereign

legislative authority and ordinary judicial functions in the same

independent body is a significant and dangerous innovation in

government. It has not only deprived the people of the power to make the

interpretation of the Constitution and the trend of legislation conform

to the public sentiment of the times; it has even taken from them all

effectual power to prevent changes which they do not want, but which the

judiciary in the exercise of its exclusive right to act as the guardian

and interpreter of the Constitution may see fit to make. Under our

system, then, the people do not have even the negative power of absolute

veto which they possess wherever they control a coordinate branch of the

legislature.

In so far as the exercise of legislative power is controlled by the

Supreme Court our government is essentially aristocratic in character.

It represents the aristocratic principle, however, in its least

obtrusive form. But while avoiding the appearance, it provides the

substance of aristocratic control.

It is easy to see in the exaltation of the Federal judiciary a survival

of the old mediaeval doctrine that the king can do no wrong. In fact,

much the same attitude of mind which made monarchy possible may be seen

in this country in our attitude toward the Supreme Court. As long as the

people reverenced the king his irresponsible power rested on a secure

foundation. To destroy the popular belief in his superior wisdom and

virtue was to destroy the basis of his authority. Hence all criticism of

the king or his policy was regarded as an attack on the system itself

and treated accordingly as a serious political crime.

The old view was well expressed by James I of England in a speech made

in the Star Chamber on June 20, 1601, in which he said:

"That which concerns the mystery of the King's power is not lawful to be

disputed; for that is to wade into the weakness of princes, and to take

away the mystical reverence that belongs unto them that sit on the

throne of God."[90]

We see this same fact illustrated also in the history of the church, for

absolutism was not confined in the Middle Ages to the state alone. As

the King was the recognized guardian of the established political order

and its final interpreter, so the ecclesiastical hierarchy claimed the

right to guard the faith and expound the creed of the people. Criticism

and dissent, political and religious, were rigorously repressed. The

people were required to accept the political and religious system

imposed on them from above. Implicit faith in the superior wisdom of

their temporal and spiritual rulers was made the greatest of all

virtues. But with the growth of an intelligent skepticism throughout the

western world, the power of king and priest has been largely overthrown.

Yet even in this country something akin to the old system of political

control still survives in the ascendency of our Federal judiciary. The

exclusive right claimed by this branch of the government to guard and

interpret the Constitution is the same prerogative originally claimed by

the king. The judiciary, too, is the branch of our government farthest

removed from the influence of public opinion and consequently the one in

which the monarchical principle most largely survives.

The courts not only claim to be the final arbiters of all constitutional

questions, but have gone much farther than this and asserted their right

to annul legislative acts not in conflict with any constitutional

provision. Story says: "Whether, indeed, independently of the

Constitution of the United States, the nature of republican and free

government does not necessarily impose some restraints upon the

legislative power has been much discussed. It seems to be the general

opinion, fortified by a strong current of judicial opinion, that, since

the American Revolution, no state government can be presumed to possess

the transcendental sovereignty to take away vested rights of

property."[91]

The judiciary has thus claimed not only the power to act as the final

interpreter of the Constitution, but also the right, independently of

the Constitution, to interpret the political system under which we live,

and make all legislative acts conform to its interpretation of that

system. According to this doctrine the courts are the final judges of

what constitutes republican government and need not base their power to

annul a legislative act on anything contained in the Constitution

itself. If we accept this view of the matter, legislation must conform

not only to the Constitution as interpreted by the judiciary, but to the

political and ethical views of the latter as well. The President and

Congress derive their authority from the Constitution, but the judiciary

claims, as we have seen, a control over legislation not conferred by the

Constitution itself. Yet, while laying claim to powers that would make

it supreme, the judicial branch of our Federal government has, as a

rule, been careful to avoid any open collision, or struggle for

supremacy, with the other branches of the government. It has retained

the sympathy and approval of the conservative classes by carefully

guarding the rights of property and, by declining to interfere with the

political discretion of Congress or the President, it has largely

escaped the hostile criticism which any open and avowed attempt to

thwart the plans of the dominant party would surely evoke. But in thus

limiting its own authority, the Supreme Court has attempted to make a

distinction between judicial and political powers which does not appear

to have any very substantial basis. The essential marks of a judicial

power, Judge Cooley tells us, are "that it can be exercised only in a

litigated case; that its direct force is spent in determining the rights

of the parties to that case; and that unless and until a case has arisen

for judicial determination, it can not be invoked at all."[92]

"The power given to the Supreme Court," he says, "to construe the

Constitution, to enforce its provisions, to preserve its limitations,

and guard its prohibitions, is not _political_ power, but is judicial

power alone because it is power exercisable by that court only in the

discharge of the judicial function of hearing and deciding causes in

their nature cognizable by courts of law and equity."[93]

In the first place it is to be observed that judicial power as thus

defined is practically co-extensive with that of the legislature, since

scarcely an exercise of legislative authority could be mentioned which

would not affect the rights of persons or of property and which could

not, therefore, be made the subject of a judicial controversy.

In the second place, it must be remembered that the Federal judiciary in

assuming the exclusive right to interpret the Constitution has taken

into its keeping a power which, as we have seen, was not judicial in

character when the Constitution was adopted, and is not even now

considered judicial in any other important country. In declaring a

legislative act null and void it is exercising a power which every

sovereign law-making body possesses, the power to defeat any proposed

legislation by withholding its assent. The mere fact that our Supreme

Judges and our legal writers generally have with practical unanimity

called it a judicial power does not make it such. That it is in reality

a legislative and not a judicial power is amply confirmed by the uniform

and time-honored practice of all other nations, even including England,

whose institutions until a century and a quarter ago were our own.

There is, however, no difficulty in understanding why those who framed

the Constitution and controlled its interpretation exhausted the arsenal

of logic in trying to prove that it was a judicial power. This was

merely a part of their plan to make the Supreme Court practically a

branch of the Federal legislature and thereby secure an effective check

on public opinion. As the power could not be expressly given without

disclosing too clearly the purpose of the Convention, it was necessary

that it should be implied. And it could be held to be implied only by

showing that it was a natural, usual and, under the circumstances,

proper power for the judiciary to exercise. Unless it could be

established, then, that it was essentially a judicial function and not a

political or legislative power, its assumption by the Supreme Court

could not be defended on any constitutional grounds. This explains the

persistent and untiring efforts to convince the American people that the

power to set aside an act of Congress is purely judicial--efforts which,

though supported by the weight of American authority, are far from

convincing.

The Supreme Court has, it is true, time and again expressly disclaimed

all right to exercise legislative or political power; yet under the

pretext that the authority to annul legislation is purely judicial, it

has made use of a power that necessarily involves the exercise of

political discretion. The statement, then, that it is the settled policy

of this body not to interfere with the political powers of the other

departments can not be taken literally, since under the accepted

interpretation of the Constitution it has the power to, and as a matter

of fact does interfere, whenever it declares an act of Congress null and

void.

It would be a mistake, then, to suppose that the Federal judiciary has

suffered any loss of influence through its voluntary relinquishment of

the veto power in the case of political questions. This self-imposed

restriction on its authority merely affords it a convenient means of

placing beyond its jurisdiction measures which it may neither wish to

approve nor condemn. And since the court must decide what are and what

are not political questions, it may enlarge or narrow the scope and

meaning of the word _political_ to suit its purposes. As a matter of

fact, then, the power which it appears to have voluntarily surrendered,

it still largely retains.

Upon the whole, the Supreme Court has been remarkably fortunate in

escaping hostile criticism. Very rarely have its decisions and policy

been attacked by any organized party. In the platform of the Republican

party of 1860 the strong pro-slavery attitude of the court was, it is

true, severely denounced. But from that time until 1896 no party dared

to raise its voice in criticism of the Federal judiciary. Both the

Democratic and the Populist platforms of the latter date, however,

condemned the Income Tax decision and government by injunction. The

Democratic platform also hinted at the possible reorganization of the

Supreme Court--the means employed by the Republican party to secure a

reversal of the Legal Tender decision of 1869.

This comparative freedom from criticism which the Supreme Court has

enjoyed until recent years does not indicate that its decisions have

always been such as to command the respect and approval of all classes.

It has from the beginning had the full confidence of the wealthy and

conservative, who have seen in it the means of protecting vested

interests against the assaults of democracy. That the Supreme Court has

largely justified their expectations is shown by the character of its

decisions.

During the first one hundred years of its history two hundred and one

cases were decided in which an act of Congress, a provision of a state

constitution or a state statute, was held to be repugnant to the

Constitution or the laws of the United States, in whole or in part.

Twenty of these involved the constitutionality of an act of Congress.

One hundred and eighty-one related to the Constitution or the statute of

a state. In fifty-seven instances the law in question was annulled by

the Supreme Court on the ground that it impaired the obligation of

contracts. In many other cases the judicial veto was interposed to

prevent what the court considered an unconstitutional exercise of the

power to regulate or tax the business or property of corporations.[94]

These decisions have been almost uniformly advantageous to the

capital-owning class in preserving property rights and corporate

privileges which the unhindered progress of democracy would have

abridged or abolished. But we need not confine our attention to these

comparatively few instances in which laws have actually been declared

null and void. There is a much more numerous and more important class of

cases in which the Supreme Court, while not claiming to exercise this

power, has virtually annulled laws by giving them an interpretation

which has defeated the purpose for which they were enacted. The

decisions affecting the powers of the Inter-State Commerce Commission

may be cited as an illustration. This body, created by Congress for the

purpose of regulating the railway traffic of the country, has, as Mr.

Justice Harlan observes,[95] "been shorn by judicial interpretation, of

authority to do anything of an effective character." Both the general

and the state governments in their efforts to grapple with this problem

have encountered the restraining arm of the Federal judiciary which has

enlarged its jurisdiction until nearly every important case involving

corporate interests may be brought before the Federal court.

It is not, however, in the laws which have been annulled or modified by

interpretation that we find the chief protection afforded to capital,

but rather in the laws which have not been enacted. The mere existence

of this power and the certainty that it would be used in defence of the

existing social order has well-nigh prevented all attacks on vested

rights by making their failure a foregone conclusion.

It is but natural that the wealthy and influential classes who have been

the chief beneficiaries of this system should have used every means at

their command to exalt the Supreme Court and thereby secure general

acquiescence in its assumption and exercise of legislative authority. To

the influence of these classes in our political, business, and social

life must be attributed in large measure that widespread and profound

respect for the judicial branch of our government which has thus far

almost completely shielded it from public criticism.

There are many indications, however, that popular faith in the

infallibility of the Supreme Court has been much shaken in recent years.

This is not surprising when we consider the wavering policy of that body

in some of the important cases that have come before it. Take, for

example, the _Legal Tender_ decisions. The court at first declared the

legal tender acts unconstitutional by a majority of five to three. Then

one of the justices who voted with the majority having resigned and

Congress having created an additional judgeship, Justices Strong and

Bradley were appointed to fill these vacancies. The former, as a member

of the Supreme Bench of the State of Pennsylvania, had rendered a

decision upholding the constitutionality of these acts, and the latter

was said to hold the same opinion. At any rate the first decision was

reversed by a majority of five to four. The point at issue in these two

decisions was whether Congress had authority to enact measures of this

kind in time of war. The matter coming up again, the Supreme Court

decided, and this time by a majority of eight to one, that Congress had

this power, not only during war, but in times of peace as well.[96]

Reference should also be made in this connection to the Income Tax

decisions of 1895. The first of these was a tie, four to four, Justice

Jackson being absent. Six weeks later the second decision was read

declaring the Income Tax unconstitutional by a vote of five to four,

Justice Shiras, who had voted on the first hearing to uphold the Income

Tax, now voting against it. This change in the attitude of a single

member of the court converted what would have been a majority for, into

a majority against the measure, overruled a line of decisions in which

the tax had been sustained and thereby effectually deprived Congress of

the power to impose a Federal Income Tax until such time as the court

may change its mind. Even more significant are the recent Insular cases

in which the division of opinion and diversity of grounds for the

conclusions reached are, to say the least, surprising.

One may well ask, after viewing these decisions, if constitutional

interpretation as practiced by the Supreme Court is really a science in

the pursuit of which the individual temperament, personal views and

political sympathies of the Justices do not influence the result. Have

we gained enough under this system in the continuity and consistency of

our legislative policy and its freedom from class or political bias to

compensate us for the loss of popular control? That these questions are

likely to receive serious consideration in the near future we can

scarcely doubt, when we reflect that the Supreme Court has, by the

character of its own decisions, effectually exploded the doctrine of

judicial infallibility, which constitutes the only basis upon which its

monopoly of constitutional interpretation can be defended.

The evident lack of sympathy with proposed reforms which has, upon the

whole, characterized the proceedings of the Federal courts is rather

strikingly illustrated in the address of Judge Taft on "Recent

Criticisms of the Federal Judiciary." He makes use of the following

language: "While socialism, as such, has not obtained much of a foothold

in this country, ... schemes which are necessarily socialistic in their

nature are accepted planks in the platform of a large political party.

The underlying principle of such schemes is that it is the duty of the

government to equalize the inequalities which the rights of free

contract and private property have brought about, and by enormous outlay

derived as far as possible from the rich to afford occupation and

sustenance to the poor. However disguised such plans of social and

governmental reform are, they find their support in the willingness of

their advocates to transfer without any compensation from one who has

acquired a large part of his acquisition to those who have been less

prudent, energetic, and fortunate. This, of course, involves

confiscation and the destruction of the principle of private

property."[97] This emphatic condemnation of proposed reforms which had

the full sympathy and approval of many thoughtful and conscientious

people furnishes the show of justification at least for the very

criticisms which it was intended to silence.

With the progress of democracy it must become more and more evident that

a system which places this far-reaching power in the hands of a body not

amenable to popular control, is a constant menace to liberty. It may not

only be made to serve the purpose of defeating reform, but may even

accomplish the overthrow of popular rights which the Constitution

expressly guarantees. In proof of this statement we need but refer to

the recent history of our Federal judiciary. The Sixth Amendment to the

Constitution guarantees the right of trial by jury in all criminal

prosecutions; but it is a matter of common knowledge that this

time-honored safeguard against the tyranny and oppression of ruling

classes has been overthrown by the Federal courts. With the ascendency

of corporate wealth and influence, government by injunction has become

an important feature of our system. The use made of the injunction in

recent years in the conflicts between labor and capital has placed a

large and important class of crimes beyond the pale of this

constitutional provision. Moreover, this particular class of crimes is

the one where denial of the right of trial by jury is most likely to

result in oppression. Under this mode of procedure the court has

virtually assumed the power to enact criminal legislation, and may

punish as crimes acts which neither law nor public opinion condemns. It

ensures conviction in many cases where the constitutional right of trial

by jury would mean acquittal. It places a powerful weapon in the hands

of organized wealth which it is not slow to use.[98]

This so-called _government by injunction_ is merely an outgrowth of the

arbitrary power of judges to inflict punishment in cases of contempt. In

this respect, as well as in the power to veto legislation, the authority

of our courts may be regarded as a survival from monarchy. The right of

judges to punish in a summary manner those whom they may hold to be in

contempt of their authority has been defended by legal writers generally

on the ground that it is the only way in which the necessary respect for

judicial authority can be maintained. It is difficult, however, to see

why this argument would not apply with equal force to the executive and

legislative branches of the government; for there must be some means of

enforcing obedience to every lawful authority, legislative, executive,

or judicial. The progress toward responsible government has long since

deprived the executive of the power to inflict arbitrary punishment, and

the legislature, though still retaining in a limited degree the power to

imprison for contempt of its authority, seldom uses and almost never

abuses it. The question is not whether contempt of authority should be

punished, but whether the officer whose authority has been disregarded

should also act as judge and jury, should ascertain the guilt and fix

the punishment of those whom he as complaining witness has accused of

contempt of his authority. This procedure is utterly at variance with

the idea of political responsibility, and survives only because the

judicial branch of our government has thus far effectually resisted the

inroads of democracy. That the exercise of this arbitrary and

irresponsible power is necessary in a democratic community, to ensure

proper respect for the courts, seems highly improbable. In fact, no

course could be suggested which would be more likely in the end to bring

them into disrepute.[99]

It is interesting to observe that while the Supreme Court of the United

States has not hesitated to veto an act of Congress, "no treaty, or

legislation based on, or enacted to carry out, any treaty stipulations

has ever been declared void or unconstitutional by any court of

competent jurisdiction; notwithstanding the fact that in many cases the

matters affected, both as to the treaty and the legislation, are

apparently beyond the domain of Congressional legislation, and in some

instances of Federal jurisdiction."[100]

Why has the Federal Supreme Court freely exercised the power to annul

acts of Congress and at the same time refrained from exercising a like

control over treaties? The Constitution makes no distinction between

laws and treaties in this respect. It provides that "the judicial power

shall extend to all cases, in law and equity, arising under this

Constitution, the laws of the United States, and the treaties made, or

which shall be made, under their authority."[101] If this provision is

to be interpreted as conferring on the Federal courts the power to

declare acts of Congress null and void, it also confers the same power

in relation to treaties. Moreover, the Supreme Court has claimed, and

has been conceded, the right to act as the guardian of the Constitution.

The authority thus assumed by the Federal judiciary can be justified, if

at all, only on the theory that the Constitution limits all governmental

powers, and that it is the duty of the Supreme Court to enforce the

limitations thus imposed by declaring null and void any unconstitutional

exercise of governmental authority.

Not only in the Constitution itself was no distinction made between laws

and treaties in relation to the power of the judiciary, but the same is

true of the Judiciary Act of September 24, 1789, which provided that

where the highest court in a state in which a decision in the suit could

be had decides against the validity of "a treaty or statute of, or an

authority exercised under, the United States," such judgment or decree

"may be re-examined, and reversed or affirmed in the Supreme Court [of

the United States] on a writ of error." The right of the Federal Supreme

Court to declare both laws and treaties null and void was thus clearly

and unequivocally recognized in this act. The object here, however, was

not to establish judicial control over treaties, but to deprive the

state courts of all authority over them.

The failure of the Supreme Court to exercise the right to annul treaties

is to be explained in part by the fact that the judicial veto was

intended primarily as a check on democracy. From the point of view of

the conservatives who framed the Constitution it was a device for

protecting the classes which they represented against democratic

"excesses" in both the state and Federal government. It was expected

that this tendency would be manifested mainly in the legislation of the

various states and possibly in some slight degree in Congressional

legislation, since the President and Senate would occasionally find it

expedient to yield too largely to the demands of the directly elected

House. But in the case of treaties made by the President and Senate,

both safely removed, as they thought, beyond the reach of popular

influence, there was no obvious need of a conservative check. In

developing the policy of the Federal courts in pursuance of the purpose

of those who framed the Constitution, it was perfectly natural that the

judicial veto should not have been used to limit the treaty-making

power.

But even if the Federal courts had felt inclined to extend their

authority in this direction, the Constitution did not as in the case of

Congressional legislation confer upon them the means of self-protection.

In declaring null and void an act of Congress which did not have the

support of at least two-thirds of the Senate, the Supreme Court is

exercising a power which, if not expressly conferred upon it by the

Constitution, it can at any rate exercise with impunity, since the

majority in the Senate which it thus overrides is not large enough to

convict in case of impeachment. All treaties must have the approval of

two-thirds of the Senate; and since the majority in this body required

to ratify a treaty is the same as that required to convict in

impeachment proceedings, it is readily seen that the Senate has the

constitutional power to prevent judicial annulment of treaties.

Two-thirds of the Senate could not overcome judicial opposition,

however, unless supported by at least a majority in the House of

Representatives. But inasmuch as the Supreme Court is pre-eminently the

representative of conservatism and vested interests, it is likely to

disapprove of the policy of the Senate only when that body yields to the

demands of the people. In all such cases the House would naturally

support the Senate as against the Supreme Court. It is not surprising,

then, that the Federal courts have not attempted to limit the

treaty-making power.

Before leaving the subject of the Federal courts one feature of the

judicial negative deserves further notice. The fact that it is not

exercised until a case involving the law in question is brought before

the court in the ordinary course of litigation is often referred to by

constitutional writers as one of its chief merits. And yet until a

competent court has actually declared a legislative act null and void,

it is for all practical purposes the law of the land and must be

recognized as such. It may vitally affect industry and commerce and

require an elaborate readjustment of business relations. It may even be

years after such an act is passed before a decision is obtained from the

court of last resort. And if the decision annuls the law, it does so not

from the time that the judgment of the court is rendered, but from the

time the act in question was originally passed. This retroactive

character of the judicial veto is strongly suggestive of the _ex post

facto_ legislation which the Constitution expressly forbids. By thus

invalidating the law from the beginning it may leave a vast body of

business contracts without legal protection or support. As a

consequence, it is impossible for any one, be he ever so well informed,

to know just what legislative acts are valid and what are not. The

amount of uncertainty which this introduces into business relations is

more easily imagined than described.

America can claim the rather questionable distinction of being the only

important country in which we find this uncertainty as to the law, since

it is the only one in which the courts have a negative on the acts of

the legislature. That we have ourselves realized the disadvantages of

the system is shown by the changes made in the constitutions of several

states with a view of diminishing the frequency of the judicial veto.

These provisions make it the duty of the judges of the supreme court of

the state to give their opinion upon questions of law when required by

the governor or other branch of the law-making authority.[102]

In so far as constitutional provisions of this sort have been intended

to prevent the evils resulting from a deferred exercise of the judicial

veto, they have largely failed to accomplish their purpose. This has

been due to the attitude of the courts, which have held that an opinion

thus given in compliance with a constitutional requirement is not

binding upon them when the question is raised again in the ordinary way

in the trial of a case.