Our Changing Constitution

by Charles W. Pierson

VII

STATE RIGHTS AND THE SUPREME COURT

A century ago the United States Supreme Court was the bulwark of national power against the assaults and pretensions of the states. To-day it is the defender of the states against the encroachments of national power. Let no one suppose, however, that this is because the Court itself has faced about. On our revolving planet a ship may be sailing toward the sun at sunrise and away from the sun in the afternoon without having changed its course. The Supreme Court has been the most consistent factor in our governmental scheme. While there have been differences of viewpoint between liberal constructionists and strict constructionists among its members, the Court on the whole has steered a fairly straight course. What has really altered is the environment in which the Court moves. The earth has been turning on its axis. The frame of mind of the people who compose states and nation has changed.

At the outset (to cling for a moment to our nautical metaphor) the Court was obliged to put forth on an unknown sea. Its sailing orders under the new Constitution were unique. Precedents, those charts and lighthouses of the judicial mariner, were lacking. Progress was tentative and groping. Little wonder therefore that at first the business of the Court was meager and membership in its body seemed less attractive than membership in the judiciary of a state. Robert Hanson Harrison, one of President Washington's original appointees to the Supreme bench, declined to serve, preferring to accept a state judicial office. John Rutledge, another of the original appointees, resigned after a few months, preferring the position of Chancellor of his native state to which he had been chosen. John Jay, the first Chief Justice, resigned to become Governor of New York, and later declined a reappointment as Chief Justice in words indicating entire lack of faith in the powers and future of the Court.

Nevertheless, the first period of the Court was by no means barren of achievement. A beginning was made. The supremacy of the national authority under the new Constitution was asserted. So stoutly indeed was it maintained in the memorable case of Chisholm v. Georgia,[1] that the country was thrown into a ferment. The Court had entertained a suit against a sovereign state by a private citizen of another state and rendered a decision in favor of the private citizen. The legislature of the sovereign state concerned (Georgia) responded by a statute denouncing the penalty of death against anyone who should presume to enforce any process upon the judgment within its jurisdiction. The matter was taken up in Congress and resulted in the proposal, and subsequent ratification by the states, of a constitutional amendment designed to prevent such actions in future.[2] It has been the fashion to speak of this incident as a striking example of the recall of judicial decisions. Such indeed it was. The decision did not suit the popular frame of mind and was promptly overruled in the method prescribed by the Constitution. It went a long way, however, toward establishing the Supreme Court as a power to be reckoned with on the side of national supremacy and authority.

[Footnote 1: 2 Dallas, 419, decided in 1793.]

[Footnote 2: Amendment XI.]

Three years later the Court again took occasion to assert the national supremacy in no uncertain fashion. The case was Ware v. Hylton[1] and the Court laid down the proposition that a treaty of the Federal Government (in this case the treaty of peace with Great Britain) nullified previous state laws dealing with the subject matter. It is an interesting circumstance that one of the counsel on the losing side in this case was John Marshall of Virginia, and that this was the only case he ever argued before the tribunal through which he was destined to play so momentous a part in history.

[Footnote 1: 3 Dallas, 199, decided in 1796.]

In the annals of the Supreme Court and the development of American constitutional law the name of John Marshall stands preëminent. He was appointed Chief Justice by President John Adams, and took his seat on the Bench at the beginning of the new century (February 4, 1801). He was without judicial experience, but his record in other fields of activity and his well-known Federalist principles pointed him out as a man to be reckoned with and explain the aversion with which he was viewed by Thomas Jefferson, the incoming President. The breach between the President and the Chief Justice was widened by some of the early decisions of the latter upholding the supremacy of the National Government and the powers of the Supreme Court, notably the famous case of Marbury v. Madison,[1] in which was asserted the power of the Court to declare an act of Congress void as in conflict with the Constitution. Some years elapsed, however, before a case was decided which squarely involved a conflict between the powers of the Federal Government and the powers of a state. The issue came up in the case of United States v. Judge Peters.[2] This case involved a conflict of jurisdiction between the federal courts and the authorities of the State of Pennsylvania over the distribution of some prize money. Marshall's decision was a strong assertion of the federal jurisdiction and power. The Governor of Pennsylvania, under sanction of the state legislature, called out the state militia to resist enforcement of the judgment of the Court. Matters were tense for a time and bloodshed seemed imminent but the state finally backed down.

[Footnote 1: 1 Cranch, 137.]

[Footnote 2: 5 Cranch, 115, decided in 1809.]

In the following year (1810) came the case of Fletcher v. Peck,[1] in which for the first time a statute of a state was held by the Supreme Court to be void as repugnant to the Federal Constitution. The State of Georgia had sought by statute to destroy rights in lands acquired under a previous act. It was held that the statute was unconstitutional as impairing the obligation of contracts within the meaning of the Constitution.

[Footnote 1: 6 Cranch, 87.]

In Martin v. Hunter's Lessee[1] was asserted the right of the Federal Supreme Court to overrule the judgment of a state court on questions arising under the Federal Constitution. The State of Virginia had denied that right and the Supreme Court reversed the judgment of the Virginia Court of Appeals.

[Footnote 1: 1 Wheat., 304 (1816.)]

In McCulloch v. State of Maryland,[1] a case involving an attempt by the State of Maryland to tax the Bank of the United States, Marshall's doctrine of implied powers was elaborated, and the judgment of the state court upholding the tax was reversed.

[Footnote 1: 4 Wheat., 316 (1819).]

In the Dartmouth College case[1] the doctrine of the inviolability of contracts against attack by state legislation was further developed. An act of the state legislature of New Hampshire had sought to alter the charter of Dartmouth College, and the New Hampshire courts had upheld the legislature. The Supreme Court reversed the state court and declared the statute unconstitutional under the clause of the Constitution which declares that no state shall make any law impairing the obligation of contracts.

[Footnote 1: Dartmouth College v. Woodward, 4 Wheat., 518 (1819).]

In the great case of Gibbons v. Ogden[1] the Court asserted the paramount jurisdiction of the National Government over interstate commerce. This was one of the most important and far-reaching of all Marshall's decisions. An injunction had been granted by Chancellor Kent and unanimously sustained by the Court of Errors of New York, restraining Gibbons from navigating the Hudson River by steamboats licensed by Congress for the coasting trade on the ground that he was thereby infringing the exclusive right, granted by the legislature of New York, to Robert R. Livingston and Robert Fulton to navigate the waters of the state with vessels moved by steam. The Supreme Court reversed the state courts and held the New York legislation void as an interference with the right of Congress, under the Constitution, to regulate interstate commerce.

[Footnote 1: 9 Wheat., 1 (1824).]

These were only a few of that series of great decisions which stand out like mountain peaks on the horizon of our national life. Marshall's judgments transformed a governmental experiment into something assured and permanent. They confirmed the national supremacy and made the Constitution workable.

Marshall is known to history for his work in vindicating the national power under the Constitution. That was the need in his day and he met it with superlative wisdom and skill. It would be a mistake, however, to suppose that he favored federal encroachment upon the powers reserved to the states. On the contrary, he rendered decisions in favor of state rights which would be notable were they not overshadowed by the greater fame of the decisions which went to the building of the nation.

With the passing of Marshall and the accession of Taney as Chief Justice a new chapter opened in the history of the Court. The Federalists had become extinct. Andrew Jackson had come into power and it had fallen to his lot to fill a majority of the seats upon the bench by appointments to vacancies. The result was at once apparent. Two cases[1] involving important constitutional questions, which had been argued during Marshall's lifetime but assigned for reargument on account of a division in the Court, were now decided contrary to Marshall's known views and in favor of a strict construction of national powers. Justice Story, Marshall's longtime associate on the bench, dissented strongly in both cases, lamenting the loss of Marshall's leadership and the change in the viewpoint of the Court.

[Footnote 1: Mayor of New York v. Miln, 11 Peters, 102; Briscoe v.
Bank of Kentucky, 11 Peters, 257, decided in 1837.]

It would serve no useful purpose to enter upon a detailed consideration of the various decisions upon constitutional questions made during the twenty-eight years of Taney's Chief Justiceship. They were marked by great diversity of views among the members of the Court. In some of them, notably the famous Passenger cases,[1] the Court fell into a state reminiscent of the confusion of tongues that arose at the building of the Tower of Babel. The scope of certain of Marshall's decisions was limited.[2] Upon the whole, however, the structure of constitutional law which Marshall had reared was not torn down or greatly impaired. The national supremacy was upheld. Taney and his associates were for the most part patriotic men and eminent lawyers, proud of the Court and its history and anxious to add to its prestige. It is regrettable that the merits of some of them have been so obscured and their memory so clouded by a well-meaning but unfortunate excursion into the field of political passions. In the Dred Scott case[3] they thought to quiet agitation and contribute to the peace of their country by passing judgment upon certain angrily mooted questions of a political character. The effort was a failure and brought upon their heads, and upon Chief Justice Taney in particular, an avalanche of misrepresentation and obloquy.

[Footnote 1: 7 Howard, 283 (1849).]

[Footnote 2: Not always for the worse: vide the Charles River Bridge case, 11 Peters, 420, imposing salutary restrictions on the doctrine of the Dartmouth College case.]

[Footnote 3: Dred Scott v. Sandford, 19 Howard, 393 (1857).]

The suppression of the Great Rebellion brought an enormous increase in the national power and in the popular will to national power. State rights did not loom large in the popular or the legislative mind in reconstruction days. Taney was dead. The Supreme Court had been practically reconstituted by appointments made by President Lincoln and his immediate successors and it seems to have been anticipated that the new Court would take the view of national powers prevailing in Congress and the country at large. In this the popular expectation was doomed to disappointment. The Court displayed an unexpected solicitude for the rights of the states and firmness against federal encroachment. Chief Justice Salmon P. Chase, who had been President Lincoln's war Secretary of the Treasury, went so far as to pronounce unconstitutional some of his own official acts performed under the stress of war.

In the great case of State of Texas v. White[1] the rights of Texas as a sovereign state were asserted, though Texas had joined in the Rebellion and was not represented in the national legislature.

[Footnote 1: 7 Wall., 700 (1869).]

In The Collector v. Day[1] it was held that Congress had no power to tax the salary of a state official.

[Footnote 1: 11 Wall., 113 (1871).]

In the Slaughter House cases[1] an act of the Legislature of Louisiana, granting to a corporation created by it exclusive rights to maintain slaughter houses for the City of New Orleans and other territory, was upheld, as a valid exercise of state police power, against claims that the legislation violated rights secured under the newly adopted amendments to the Federal Constitution (Amendments XIII, XIV, XV). The opinion of the Court delivered by a Northern judge (Miller of Iowa) stands as one of the bulwarks of state authority.

[Footnote 1: 16 Wall., 36 (1873).]

In a series of later cases various reconstruction acts of Congress involving encroachments upon state rights were either held unconstitutional or radically limited in their effect. For example, the decision in United States v. Cruikshank[1] greatly limited the effect of the so-called Federal Enforcement Act. The decision in United States v. Harris[2] declared unconstitutional portions of an act of Congress designed for the suppression of activities of the Ku-Klux variety. In the so-called Civil Rights cases[3] certain provisions of the federal Civil Rights Act, passed in furtherance of the purposes of the new constitutional amendments and designed to secure to persons of color equal enjoyment of the privileges of inns, public conveyances, theatres, etc., were held unconstitutional as an encroachment on the rights of the states.

[Footnote 1: 92 U.S., 542 (1875).]

[Footnote 2: 106 U.S., 629.]

[Footnote 3: 109 U.S., 3.]

These are but a few of the many decisions of the Supreme Court in the reconstruction period upholding the rights of the states against attempted federal encroachment arising from the conditions of the Civil War. The nation owes a debt of gratitude to the men who composed the Court at this time for their courage and firmness in the face of popular clamor and passion.

The solicitude of the Court for the rights of the states did not end with the reconstruction period. It has continued down to the present day. In the Income Tax cases[1] the Court held that a tax upon income from bonds of a state municipal corporation was repugnant to the Constitution as a tax upon the borrowing power of the state.

[Footnote 1: Pollock v. Farmers Loan & Trust Co., 157 U.S., 429 (1895).]

In Keller v. United States[1] the Court declared unconstitutional, as an encroachment on the police power of the states, an act of Congress making it a felony to harbor alien prostitutes, the Court declaring that "speaking generally, the police power is reserved to the states and there is no grant thereof to Congress in the Constitution."

[Footnote 1: 213 U.S., 138 (1909).]

In the Child Labor case[1] the Court held the federal Child Labor Law of 1916 unconstitutional as invading the police power reserved to the states. The Court said:

This Court has no more important function than that which devolves upon it the obligation to preserve inviolate the constitutional limitations upon the exercise of authority, federal and state, to the end that each may continue to discharge, harmoniously with the other, the duties entrusted to it by the Constitution.[2]

[Footnote 1: Hammer v. Dagenhart, 247 U.S., 251 (1918).]

[Footnote 2: An even stronger assertion of state rights is found in the Child Labor Tax Case (Bailey v. The Drexel Furniture Co.) decided May 15, 1922, after this chapter had been put into print.]

How is it then, someone may ask, if the Supreme Court is so zealous in defense of the rights of the states, that those rights are being encroached upon more and more by the National Government? The answer must be that there has been a change in the popular frame of mind. The desire for uniformity, standardization, efficiency, has outgrown the earlier fears of a centralization of power. Congress has found ways, under the constitutional grants of power to lay taxes and regulate interstate commerce, to legislate in furtherance of the popular demands. The Court is not strong enough (no governmental agency which could be devised would be strong enough) to hold back the flood or permanently thwart the popular will. In a government of the people everything has to yield sooner or later to the deliberate wish of the majority.

Some profess to view the recent encroachments of federal power as a triumph of the principles advocated by Alexander Hamilton and John Marshall over the principles of Thomas Jefferson. Such a claim does Hamilton and Marshall an injustice. While they both stood for a strong National Government, neither of them contemplated any encroachment by that government on the principle of local self-government in local matters or the police power of the states.

Marshall in one of his most powerful and far-reaching pronouncements in support of the national supremacy[1] speaks of

that immense mass of legislation, which embraces everything within the territory of a state not surrendered to the General Government;… inspection laws, quarantine laws, health laws of every description … are component parts of this mass.

[Footnote 1: Gibbons v. Ogden, 9 Wheat., 1, 203, 208.]

Later in the same opinion he refers to

the acknowledged power of a state to regulate its police, its domestic trade, and to govern its own citizens.

… The power of regulating their own purely internal affairs
whether of trading or police.

Hamilton devotes an entire number of the Federalist[1] to combatting the idea that the rights of the states are in danger of being invaded by the General Government. In another place[2] he returns to the idea

that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members

and concludes that it is to be hoped that the people

will always take care to preserve the constitutional equilibrium between the general and the state governments.

[Footnote 1: Federalist, Number XVII.]

[Footnote 2: Id., Number XXXI.]

That hope has failed of realization. The "constitutional equilibrium" of which Hamilton wrote is not being preserved. Some will say that this is an age of progress and we are improving upon Hamilton. Others, however, think we are forgetting the wisdom of the Fathers.