Our Changing Constitution

by Charles W. Pierson

II

THE SUPREME COURT OF THE UNITED STATES

The Constitution effected an apportionment of the powers of government between nation and states. The maintenance of the equilibrium thus established was especially committed to the Supreme Court. This novel office, the most important of all its great functions, makes the Court one of the most vital factors of the entire governmental scheme and gives it a unique preëminence among the judicial tribunals of the world.

How the office has been performed, and whether the constitutional equilibrium is actually being maintained, are the questions to be considered in this book. Before taking them up, however, it will be useful to glance briefly at the Court itself and inquire how it is equipped for its difficult task.

The United States Supreme Court at present is composed of nine judges. The number originally was six. It now holds its sessions at the Capitol in Washington, in the old Senate Chamber which once echoed with the eloquence of the Webster-Hayne debate. The judges are nominated by the President, and their appointment, like that of ambassadors, must be confirmed by the Senate. The makers of the Constitution took the utmost care to insure the independence of the Court. Its members hold office during good behavior, that is to say for life. They cannot be removed except by impeachment for misconduct. Only one attempt has ever been made to impeach a judge of the Supreme Court[1] and that attempt failed. Still further to insure their freedom from legislative control, the Constitution provides that the compensation of the judges shall not be diminished during their continuance in office.[2]

[Footnote 1: Justice Samuel Chase of Maryland in 1804-5.]

[Footnote 2: It is interesting to observe that this Court, safeguarded against popular clamor and composed of judges appointed for life, has consistently shown itself more progressive and more responsive to modern ideas than have most of the state Supreme Courts whose members are elected directly by the people and for limited terms only.]

From the time of John Jay, the first Chief Justice, down to the present day the men appointed to membership in the Court have, for the most part, been lawyers of the highest character and standing, many of whom had already won distinction in other branches of the public service. The present Chief Justice (Taft) is an ex-President of the United States. Among the other members of the Court are a former Secretary of State of the United States (Justice Day); two former Attorneys General of the United States (Justices McKenna and McReynolds); a former Chief Justice of Massachusetts (Justice Oliver Wendell Holmes, the distinguished son and namesake of an illustrious father); a former Chief Justice of Wyoming (Justice Van Devanter); and a former Chancellor of New Jersey (Justice Pitney).

It is well that the personnel of the Court has been such as to command respect and deference, for in actual power the judiciary is by far the weakest of the three coördinate departments (legislative, executive, judicial) among which the functions of government were distributed by the Constitution. The power of the purse is vested in Congress: it alone can levy taxes and make appropriations. The Executive is Commander-in-Chief of the Army and Navy and wields the appointing power. The Supreme Court controls neither purse nor sword nor appointments to office. Its power is moral rather than physical. It has no adequate means of enforcing its decrees without the coöperation of other branches of the Government.

That coöperation has not always been forthcoming. In the year 1802, Congress, at the instigation of President Jefferson, the inveterate enemy of Chief Justice Marshall, suspended the sessions of the Court for more than a year by abolishing the August term. In 1832, when the State of Georgia defied the decree of the Court in a case involving the status of the Cherokee Indians, the other departments of the Federal Government gave no aid and President Andrew Jackson is reported to have remarked: "John Marshall has made the decision, now let him execute it." In 1868, Congress, in order to forestall decision in a case pending before the Court, hastily repealed the statute on which the jurisdiction of the Court depended.[1] Such instances, however, have been rare. The law-abiding instinct is strong in the American people, and for the most part the decisions of the Supreme Court have been received with respect and unquestioning obedience.

[Footnote 1: See ex parte McCardle, 6 Wall. (Supreme Court Reports), 318; 7 id., 506.]

The chief weapon in the arsenal of the Court is the power to declare legislative acts void on the ground that they overstep limits established by the people in the Constitution. This power has been frequently exercised. It is stated that the congressional statutes thus nullified have not numbered more than thirty, while at least a thousand state laws have been nullified.[1]

[Footnote 1: Brief of Solicitor General James M. Beck in the Child Labor Tax cases. It is to be borne in mind that there are forty-eight state legislatures and only one Congress.]

The assumption of this power in the Court to declare statutes unconstitutional has been bitterly assailed, and is still denounced in some quarters, as judicial usurpation originated by John Marshall.

On the historical side this objection is not well founded. Various state courts had exercised the power to declare statutes unconstitutional before the Supreme Court came into existence.[1] The framers of the Constitution clearly intended that such a power should be exercised by the Supreme Court.[2] Moreover, a somewhat similar power appears to have been exercised long before in England,[3] though it gave place later to the present doctrine of the legal omnipotence of Parliament.

[Footnote 1: See Bryce: "The American Commonwealth," Vol. I, p. 250.]

[Footnote 2: See e.g., "Federalist," No. LXXVIII.]

[Footnote 3: See opinion of Lord Coke in Bonham's Case, 8 Coke's
Reports, 118, decided in 1610.]

On the side of reason and logic, the argument in favor of the power formulated more than a century ago by Chief Justice Marshall has never been adequately answered and is generally accepted as final. He said:[1]

The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?… 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.

[Footnote 1: Marbury v. Madison, 1 Cranch, 176.]

It would seem at first blush that the power in the Court to declare legislative acts unconstitutional affords a complete safeguard against congressional encroachment on the prerogatives of the states. Such is not the fact, however. The veto power of the Court by no means covers the entire field of legislative activity. In the Convention which framed the Constitution, attempts were made to give to the judiciary, in conjunction with the executive, complete power of revision over legislative acts, but all such propositions were voted down.[1] As matters stand, there may be violations of the Constitution by Congress (or for that matter by the executive) of which the Court can take no cognizance.

[Footnote 1: See e.g., Farrand: "Records of the Federal Convention,"
Vol. I, pp. 138 et seq.; Vol. II, p. 298.]

For one thing, the Court cannot deal with questions of a political character. The function of the Court is judicial only. Upon this ground it was decided that the question which of two rival governments in the State of Rhode Island was the legitimate one was for the determination of the political department of government rather than the courts;[1] that the question, whether the adoption by a state of the initiative and referendum violated the provision of the Federal Constitution guaranteeing to every state a republican form of government, was political and therefore beyond the jurisdiction of the Court.[2] In 1867 a sovereign state sought to enjoin the President of the United States from enforcing an act of Congress alleged to be unconstitutional. The Supreme Court, without determining the constitutionality of the act, declined to interfere with the exercise of the President's political discretion.[3] In the famous Dred Scott case[4] the effort of the Supreme Court to settle a political question accomplished nothing save to impair the influence and prestige of the Court.

[Footnote 1: Luther v. Borden, 7 Howard, 1.]

[Footnote 2: Pacific Telephone Co. v. Oregon, 223 U.S., 118.]

[Footnote 3: State of Mississippi v. Andrew Johnson, 4 Wall., 475.]

[Footnote 4: Dred Scott v. Sandford, 19 Howard, 393.]

The power of the Court to declare legislative acts unconstitutional is subject to another important limitation. The judicial power is limited by the Constitution to actual cases and controversies between opposing parties. The Court cannot decide moot questions or act as an adviser for other departments of the government. A striking illustration is found in the so-called Muskrat case.[1] Congress having legislated concerning the distribution of property of the Cherokee Indians, and doubts having arisen as to the constitutional validity of the legislation, Congress passed another act empowering one David Muskrat and other Cherokee citizens to file suit, naming the United States as defendant, to settle the question. The Supreme Court declined to take jurisdiction and dismissed the suit, holding that it was not a case or controversy between opposing parties within the meaning of the Constitution.

[Footnote 1: Muskrat v. United States, 219 U.S., 346.]

Still another limitation is encountered in cases involving abuse of legislative power rather than lack of power. If Congress passes an act within one of the powers expressly conferred upon it by the Constitution, for example the power to lay taxes or the power to regulate interstate commerce, the Supreme Court cannot interfere though the incidental effect and ulterior purpose of the legislation may be to intrude upon the field of state power. We shall have occasion to refer to this limitation more than once in later chapters.

An impression is abroad that the Supreme Court has plenary power to preserve the Constitution. Hence the tendency of groups to demand, and of legislators to enact, any kind of a law without regard to its constitutional aspect, leaving that to be taken care of by the Court.

Any such impression is erroneous and unfortunate. It puts upon the Court a burden beyond its real powers. It undermines the sense of responsibility which should exist among the elected representatives of the people. It impairs what someone has called the constitutional conscience, and weakens the vigilance of the people in preserving their liberties. Men and women need to be reminded that the duty of upholding the Constitution does not devolve upon the Supreme Court alone. It rests upon all departments of government and, in the last analysis, upon the people themselves.