The Constitution of the United States of America: Analysis and Interpretation / Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952

by Unknown

INTRODUCTION

It is my purpose in this Introduction to the Constitution of the United States, Annotated to sketch rapidly certain outstanding phases of the Supreme Court's interpretation of the Constitution for the illustration they may afford of the interests, ideas, and contingencies which have from time to time influenced the Court in this still supremely important area of its powers and of the comparable factors which give direction to its work in the same field at the present time.

As employed in this country, Constitutional Law signifies a body of rules resulting from the interpretation by a high court of a written constitutional instrument in the course of disposing of cases in which the validity, in relation to the constitutional instrument, of some act of governmental power, State or national, has been challenged. This function, conveniently labelled "Judicial Review," involves the power and duty on the part of the Court of pronouncing void any such act which does not square with its own reading of the constitutional instrument. Theoretically, therefore, it is a purely juristic product, and as such does not alter the meaning. To those who hold this theory, the Court does not elaborate the instrument, as legislative power might; it elucidates it, bringing forth into the light of day, as it were, what was in the instrument from the first.

In the case of judicial review as exercised by the Supreme Court of the United States in relation to the national Constitution, its preservative character has been at times a theme of enthusiastic encomium, as in the following passage from a speech by the late Chief Justice White, made shortly before he ascended the Bench:

... The glory and ornament of our system which distinguishes it from every other government on the face of the earth is that there is a great and mighty power hovering over the Constitution of the land to which has been delegated the awful responsibility of restraining all the coordinate departments of government within the walls of the governmental fabric which our fathers built for our protection and immunity.[1]

At other times the subject has been dealt with less enthusiastically, even skeptically.

One obstacle that the theory encountered very early was the refusal of certain Presidents to regard the Constitution as primarily a source of rules for judicial decision. It was rather, they urged, a broadly discretionary mandate to themselves and to Congress. And pursuing the logic of this position, they contended that while the Court was undoubtedly entitled to read the Constitution independently for the purpose of deciding cases, this very purpose automatically limited the authoritativeness of its readings; and that within their respective jurisdictions President and Congress enjoyed the same correlative independence as the Court did within its jurisdiction. This was, in effect, the position earlier of Jefferson and Jackson, later of Lincoln, and in recent times that of the two Roosevelts.

Another obstacle has been of the Court's own making. Whether because of the difficulty of amending the Constitution or for cautionary reasons, the Court took the position, as early as 1851, that it would reverse previous decisions on constitutional issues when convinced they were erroneous.[2] An outstanding instance of this nature was the decision in the Legal Tender cases, in 1871, reversing the decision which had been rendered in Hepburn v. Griswold fifteen months earlier;[3] and no less shattering to the prestige of stare decisis in the constitutional field was the Income Tax decision of 1895,[4] in which the Court accepted Mr. Joseph Choate's invitation to "correct a century of error". The "constitutional revolution" of 1937 produced numerous reversals of earlier precedents on the ground of "error", some of them, the late Mr. James M. Beck complained, without "the obsequious respect of a funeral oration".[5] In 1944 Justice Reed cited fourteen cases decided between March 27, 1937 and June 14, 1943 in which one or more prior constitutional decisions were overturned.[6] On the same occasion Justice Roberts expressed the opinion that adjudications of the Court were rapidly gravitating "into the same class as a restricted railroad ticket, good for this day and train only".[7]

Years ago the eminent historian of the Supreme Court, Mr. Charles Warren, had written:

However the Court may interpret the provisions of the Constitution, it is still the Constitution which is the law and not the decision of the Court.[8]

In short, it is "not necessarily so" that the Constitution is preserved in the Court's reading of it.

A third difficulty in the way of the theory that Judicial Review is preservative of the Constitution is confronted when we turn to consider the statistical aspects of the matter. The suggestion that the Constitution of the United States contained in embryo from the beginning the entirety of our national Constitutional Law confronts the will to believe with an altogether impossible test. Compared with the Constitutional Document, with its 7,000 words more or less, the bulk of material requiring to be noticed in the preparation of an annotation of this kind is simply immense. First and last, the Court has probably decided well over 4,000 cases involving questions of constitutional interpretation. In many instances, to be sure, the constitutional issue was disposed of quite briefly. In some instances, on the other hand, the published report of the case runs to more than 200 pages.[9] In the total, it is probable that at least 50,000 pages of the United States Supreme Court Reports are devoted to Constitutional Law topics.

Nor is this the whole story, or indeed the most important part of it. Even more striking is the fact that the vast proportion of cases forming the corpus of national Constitutional Law has stemmed, or has purported to stem, from four or five brief phrases of the Constitutional Document, the power "to regulate ... commerce among the States," impairment of "the obligation of contracts" (now practically dried up as a formal source of constitutional law), deprivation of "liberty or property without due process of law" (which phrase occurs both as a limitation on the National Government and, since 1868, on the States), and out of four or five doctrines which the Constitution is assumed to embody. The latter are, in truth, the essence of the matter, for it is through these doctrines, and under the cover which they afford, that outside interests, ideas, preconceptions, have found their way into Constitutional Law, have indeed become for better, for worse, its leavening element.

That is to say, the effectiveness of Constitutional Law as a system of restraints on governmental action in the United States, which is its primary raison d'etre, depends for the most part on the effectiveness of these doctrines as they are applied by the Court to that purpose. The doctrines to which I refer are (1) the doctrine or concept of Federalism; (2) the doctrine of the Separation of Powers; (3) the concept of a Government of Laws and not of Men, as opposed especially to indefinite conceptions of presidential power; (4) and the substantive doctrine of Due Process of Law and attendant conceptions of Liberty. What I proposed to do is to take up each of these doctrines or concepts in turn, tell something of their earlier history, and then project against this background a summary account of what has happened to them in recent years in consequence of the impact of war, of economic crisis, and of the political and ideological reaction to the latter during the Administrations of Franklin D. Roosevelt.

I

Federalism

Federalism in the United States embraces the following elements: (1) as in all federations, the union of several autonomous political entities, or "States," for common purposes; (2) the division of legislative powers between a "National Government," on the one hand, and constituent "States," on the other, which division is governed by the rule that the former is "a government of enumerated powers" while the latter are governments of "residual powers"; (3) the direct operation, for the most part, of each of these centers of government, within its assigned sphere, upon all persons and property within its territorial limits; (4) the provision of each center with the complete apparatus of law enforcement, both executive and judicial; (5) the supremacy of the "National Government" within its assigned sphere over any conflicting assertion of "state" power; (6) dual citizenship.

The third and fourth of the above-listed salient features of the American Federal System are the ones which at the outset marked it off most sharply from all preceding systems, in which the member states generally agreed to obey the mandates of a common government for certain stipulated purposes, but retained to themselves the right of ordaining and enforcing the laws of the union. This, indeed, was the system provided in the Articles of Confederation. The Convention of 1787 was well aware, of course, that if the inanities and futilities of the Confederation were to be avoided in the new system, the latter must incorporate "a coercive principle"; and as Ellsworth of Connecticut expressed it, the only question was whether it should be "a coercion of law, or a coercion of arms," that "coercion which acts only upon delinquent individuals" or that which is applicable to "sovereign bodies, states, in their political capacity."[10] In Judicial Review the former principle was established, albeit without entirely discarding the latter, as the War between the States was to demonstrate.

The sheer fact of Federalism enters the purview of Constitutional Law, that is, becomes a judicial concept, in consequence of the conflicts which have at times arisen between the idea of State Autonomy ("State Sovereignty") and the principle of National Supremacy. Exaltation of the latter principle, as it is recognized in the Supremacy Clause (Article VI, paragraph 2) of the Constitution, was the very keystone of Chief Justice Marshall's constitutional jurisprudence. It was Marshall's position that the supremacy clause was intended to be applied literally, so that if an unforced reading of the terms in which legislative power was granted to Congress confirmed its right to enact a particular statute, the circumstance that the statute projected national power into a hitherto accustomed field of state power with unavoidable curtailment of the latter was a matter of indifference. State power, as Madison in his early nationalistic days phrased it, was "no criterion of national power," and hence no independent limitation thereof.

Quite different was the outlook of the Court over which Marshall's successor, Taney, presided. That Court took as its point of departure the Tenth Amendment, which reads, "The powers not delegated to the United States by this Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In construing this provision the Court under Taney sometimes talked as if it regarded all the reserved powers of the States as limiting national power; at other times it talked as if it regarded certain subjects as reserved exclusively to the States, slavery being, of course, the outstanding instance.[11]

But whether following the one line of reasoning or the other, the Taney Court subtly transformed its function, and so that of Judicial Review, in relation to the Federal System. Marshall viewed the Court as primarily an organ of the National Government and of its supremacy. The Court under Taney regarded itself as standing outside of and above both the National Government and the States, and as vested with a quasi-arbitral function between two centers of diverse, but essentially equal, because "sovereign", powers. Thus in Ableman v. Booth, which was decided on the eve of the War between the States, we find Taney himself using this arresting language:

This judicial power was justly regarded as indispensable, not merely to maintain the supremacy of the laws of the United States, but also to guard the States from any encroachment upon their reserved rights by the general government.... So long ... as this Constitution shall endure, this tribunal must exist with it, deciding in the peaceful forms of judicial proceeding, the angry and irritating controversies between sovereignties, which in other countries have been determined by the arbitrament of force.[12]

It is, therefore, the Taney Court, rather than the Marshall Court, which elaborated the concept of Dual Federalism. Marshall's federalism is more aptly termed national federalism; and turning to modern issues, we may say without exaggeration that the broad general constitutional issue between the Court and the Franklin D. Roosevelt program in such cases as Schechter Corp. v. United States and Carter v. Carter Coal Co.[13] was, whether Marshall's or Taney's brand of federalism should prevail. More precisely, the issue in these cases was whether Congress' power to regulate commerce must stop short of regulating the employer-employee relationship in industrial production, that having been hitherto regulated by the States. In Justice Sutherland's words in the Carter case:

Much stress is put upon the evils which come from the struggle between employers and employees over the matter of wages, working conditions, the right of collective bargaining, etc., and the resulting strikes, curtailment and irregularity of production and effect on prices; and it is insisted that interstate commerce is greatly affected thereby.... The conclusive answer is that the evils are all local evils over which the Federal Government has no legislative control. The relation of employer and employee is a local relation. At common law, it is one of the domestic relations. The wages are paid for the doing of local work. Working conditions are obviously local conditions. The employees are not engaged in or about commerce, but exclusively in producing a commodity. And the controversies and evils, which it is the object of the act to regulate and minimize, are local controversies and evils affecting local work undertaken to accomplish that local result. Such effect as they may have upon commerce, however extensive it may be, is secondary and indirect. An increase in the greatness of the effect adds to its importance. It does not alter its character.[14]

We all know how this issue was finally resolved. In the Fair Labor Standards Act of 1938 Congress not only prohibits interstate commerce in goods produced by substandard labor, but it directly forbids, with penalties, the employment of labor in industrial production for interstate commerce on other than certain prescribed terms. And in United States v. Darby[15] this Act was sustained by the Court, in all its sweeping provisions, on the basis of an opinion by Chief Justice Stone which in turn is based on Chief Justice Marshall's famous opinions in McCulloch v. Maryland and Gibbons v. Ogden rendered more than a century and a quarter ago. In short, as a principle capable of delimiting the national legislative power, the concept of Dual Federalism as regards the present Court seems today to be at an end, with consequent aggrandizement of national power.

There is, however, another side to the story. For in one respect even the great Marshall has been in effect overruled in support of enlarged views of national authority. Without essaying a vain task of "tithing mint, anise and cummin," it is fairly accurate to say that throughout the 100 years which lie between Marshall's death and the cases of the 1930's, the conception of the federal relationship which on the whole prevailed with the Court was a competitive conception, one which envisaged the National Government and the States as jealous rivals. To be sure, we occasionally get some striking statements of contrary tendency, as in Justice Bradley's opinion in 1880 for a divided Court in the Siebold Case,[16] where is reflected recognition of certain results of the War between the States; or later in a frequently quoted dictum by Justice McKenna, in Hoke v. United States, in which the Mann White Slave Act was sustained in 1913:

Our dual form of government has its perplexities, State and Nation having different spheres of jurisdiction ... but it must be kept in mind that we are one people; and the powers reserved to the states and those conferred on the nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral.[17]

The competitive concept is, nevertheless, the one much more generally evident in the outstanding results for American Constitutional Law throughout three-quarters of its history. Of direct pertinence in this connection is the doctrine of tax exemption which converted federalism into a principle of private immunity from taxation, so that, for example, neither government could tax as income the official salaries paid by the other government.[18] This doctrine traces immediately to Marshall's famous judgment in McCulloch v. Maryland,[19] and bespeaks a conception of the federal relationship which regards the National Government and the States as bent on mutual frustration. Today the principle of tax exemption, except so far as Congress may choose to apply it to federal instrumentalities by virtue of its protective powers under the necessary and proper clause, is at an end.

By the cooperative conception of the federal relationship the States and the National Government are regarded as mutually complementary parts of a single governmental mechanism all of whose powers are intended to realize the current purposes of government according to their applicability to the problem in hand. This is the conception on which the recent social and economic legislation professes to rest. It is the conception which the Court invokes throughout its decisions in sustaining the Social Security Act of 1935 and supplementary state legislation. It is the conception which underlies congressional legislation of recent years making certain crimes against the States, like theft, racketeering, kidnapping, crimes also against the National Government whenever the offender extends his activities beyond state boundary lines. The usually cited constitutional justification for such legislation is that which was advanced forty years ago in the above quoted Hoke Case.[20]

It has been argued that the cooperative conception of the federal relationship, especially as it is realized in the policy of federal subventions to the States, tends to break down state initiative and to devitalize state policies. Actually, its effect has often been just the contrary, and for the reason pointed out by Justice Cardozo in Helvering v. Davis,[21] decided in 1937, namely, that the States, competing as they do with one another to attract investors, have not been able to embark separately upon expensive programs of relief and social insurance. Another great objection to Cooperative Federalism is more difficult to meet. This is, that Cooperative Federalism invites further aggrandizement of national power. Unquestionably it does, for when two cooperate, it is the stronger member of the combination who usually calls the tunes. Resting as it does primarily on the superior fiscal resources of the National Government, Cooperative Federalism has been, at least to date, a short expression for a constantly increasing concentration of power at Washington in the stimulation and supervision of local policies.[22]

The last element of the concept of Federalism to demand attention is the doctrine that the National Government is a government of enumerated powers only, and consequently under the necessity at all times of justifying its measures juridically by pointing to some particular clause or clauses of the Constitution which, when read separately or in combination, may be thought to grant power adequate to such measures. In spite of such recent decisions as that in United States v. Darby, this time-honored doctrine still guides the authoritative interpreters of the Constitution in determining the validity of acts which are passed by Congress in presumed exercise of its powers of domestic legislation—the course of reasoning pursued by the Chief Justice in the Darby Case itself is proof that such is the fact. In the field of foreign relations, on the contrary, the doctrine of enumerated powers has always had a difficult row to hoe, and today may be unqualifiedly asserted to be defunct.

As early as the old case of Penhallow v. Doane, which was decided by the Supreme Court in 1795, certain counsel thought it pertinent to urge the following conception of the War Power:

A formal compact is not essential to the institution of a government. Every nation that governs itself, under what form soever, without any dependence on a foreign power, is a sovereign state. In every society there must be a sovereignty. 1 Dall. Rep. 46, 57. Vatt. B. 1. ch. 1. sec. 4. The powers of war form an inherent characteristic of national sovereignty; and, it is not denied, that Congress possessed those powers....[23]

To be sure, only two of the Justices felt it necessary to comment on this argument, which one of them endorsed, while the other rejected it.

Yet seventy-five years later Justice Bradley incorporated closely kindred doctrine into his concurring opinion in the Legal Tender Cases;[24] and in the years following the Court itself frequently brought the same general outlook to questions affecting the National Government's powers in the field of foreign relations. Thus in the Chinese Exclusion Case, decided in 1889, Justice Field, in asserting the unlimited power of the National Government, and hence of Congress, to exclude aliens from American shores, remarked:

While under our Constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with the powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.[25]

And four years later the power of the National Government to deport alien residents at the option of Congress was based by Justice Gray on the same general reasoning.[26]

Finally, in 1936, Justice Sutherland, speaking for the Court in United States v. Curtiss-Wright Corporation, with World War I a still recent memory, took over bodily counsel's argument of 140 years earlier, and elevated it to the head of the column of authoritative constitutional doctrine. He said:

A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union.... It results that the investment of the Federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal government as a necessary concomitant of nationality.[27]

In short, the power of the National Government in the field of international relationship is not simply a complexus of particular enumerated powers; it is an inherent power, one which is attributable to the National Government on the ground solely of its belonging to the American People as a sovereign political entity at International Law. In that field the principle of Federalism no longer holds, if it ever did.[28]

II

The Separation of Powers

The second great structural principle of American Constitutional Law is supplied by the doctrine of the Separation of Powers. The notion of three distinct functions of government approximating what we today term the legislative, the executive, and the judicial, is set forth in Aristotle's Politics,[29] but it was the celebrated Montesquieu who, by joining the idea to the notion of a "mixed constitution" of "checks and balances", in Book XI of his Spirit of the Laws, brought Aristotle's discovery to the service of the rising libertarianism of the eighteenth century. It was Montesquieu's fundamental contention that "men entrusted with power tend to abuse it". Hence it was desirable to divide the powers of government, first, in order to keep to a minimum the powers lodged in any single organ of government; secondly, in order to be able to oppose organ to organ.

In the United States libertarian application of the principle was originally not too much embarrassed by inherited institutions. In its most dogmatic form the American conception of the Separation of Powers may be summed up in the following propositions: (1) There are three intrinsically distinct functions of government, the legislative, the executive, and the judicial; (2) these distinct functions ought to be exercised respectively by three separately manned departments of government; which, (3) should be constitutionally equal and mutually independent; and finally, (4) a corollary doctrine stated by Locke—the legislature may not delegate its powers.[30]

Prior even to Franklin D. Roosevelt this entire colligation of ideas had been impaired by three developments in national governmental practice: first, the growth of Presidential initiative in legislation; secondly, the delegation by Congress of legislative powers to the President; thirdly, the delegation in many instances of like powers to so-called independent agencies or commissions, in which are merged in greater or less measure the three powers of government of Montesquieu's postulate. Under Roosevelt the first two of these developments were brought to a pitch not formerly approximated, except temporarily during World War I.

The truth is that the practice of delegated legislation is inevitably and inextricably involved with the whole idea of governmental intervention in the economic field, where the conditions to be regulated are of infinite complexity and are constantly undergoing change. Granted such intervention, it is simply out of the question to demand that Congress should attempt to impose upon the shifting and complex scene the relatively permanent molds of statutory provision, unqualified by a large degree of administrative discretion. One of the major reasons urged for governmental intervention is furnished by the need for gearing the different parts of the industrial process with one another for a planned result. In wartime this need is freely conceded by all; but its need in economic crisis is conceivably even greater, the results sought being more complex. So in the interest both of unity of design and of flexibility of detail, presidential power today takes increasing toll from both ends of the legislative process—both from the formulation of legislation and from its administration. In other words, as a barrier capable of preventing such fusion of presidential and congressional power, the principle of the Separation of Powers does not appear to have retained much of its original effectiveness; for on only one occasion[31] prior to the disallowance, in Youngstown v. Sawyer,[32] President Truman's seizure in April 1952 of the steel industry has the Court been constrained to condemn, as in conflict with that principle, a congressional delegation of legislative power. Indeed, its application in the field of foreign relations has been virtually terminated by Justice Sutherland's opinion in the Curtiss-Wright Case.[33]

The Youngstown Opinion appears to rest on the proposition that since Congress could have ordered the seizure, e.g., under the necessary and proper clause, the President, in making it on his own, usurped "legislative power" and thereby violated the principle of the Separation of Powers. In referring to this proposition, the Chief Justice (in his dissenting opinion, for himself and Justices Reed and Minton) quoted as follows from a 1915 brief of the then Solicitor General of the United States on this same question:

The function of making laws is peculiar to Congress, and the Executive can not exercise that function to any degree. But this is not to say that all of the subjects concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things and upon men in many relations which have not, though they might have, been actually regulated by Congress.

In other words, just as there are fields which are peculiar to Congress and fields which are peculiar to the Executive, so there are fields which are common to both, in the sense that the Executive may move within them until they shall have been occupied by legislative action. These are not the fields of legislative prerogative, but fields within which the lawmaking power may enter and dominate whenever it chooses. This situation results from the fact that the President is the active agent, not of Congress, but of the Nation.[34]

Or, in more general terms, the fact that one of the three departments may apply its distinctive techniques to a certain subject matter sheds little or no light on the question whether one of the other departments may deal with the same subject matter according to its distinctive techniques. Indeed, were it otherwise, the action of the Court in disallowing President Truman's seizure order would have been of very questionable validity, inasmuch as the President himself conceded that Congress could do so.

The conception of the Separation of Powers doctrine advanced in Youngstown appears to have been an ad hoc discovery for the purpose of disposing of that particular case.

To sum up the argument to this point: War, the Roosevelt-Truman programs, and the doctrines of Constitutional Law on which they rest, and the conception of governmental function which they incorporate, have all tremendously strengthened forces which even earlier were making, slowly, to be sure, but with "the inevitability of gradualness," for the concentration of governmental power in the United States, first in the hands of the National Government; and, secondly, in the hands of the national Executive. In the Constitutional Law which the validation of the Roosevelt program has brought into full being, the two main structural elements of government in the United States in the past, the principle of Dual Federalism and the doctrine of the Separation of Powers, have undergone a radical and enfeebling transformation which war has, naturally, carried still further.

III

A Government of Laws and Not of Men

The earliest repositories of executive power in this country were the provincial governors. Being the point of tangency and hence of irritation between imperial policy and colonial particularism, these officers incurred a widespread unpopularity that was easily generalized into distrust of their office. So when Jefferson asserted in his Summary View, in 1774, that the King "is no more than the chief officer of the people, appointed by the laws and circumscribed with definite powers, to assist in working the great machine of government,"[35] he voiced a theory of executive power which, impudently as it flouted historical fact, had the support of the draftsmen of the first American constitutions. In most of these instruments the governors were elected annually by the legislative assemblies, were stripped of every prerogative of their predecessors in relation to legislation, and were forced to exercise the powers left them subject to the advice of a council chosen also by the assembly, and from its own members if it so desired. Finally, out of abundant caution the constitution of Virginia decreed that executive powers were to be exercised "according to the laws of" the Commonwealth, and that no power or prerogative was ever to be claimed "by virtue of any law, statute or custom of England." "Executive power", in short, was left entirely to legislative definition and was cut off from all resources of the common law and the precedents of English monarchy.

Fortunately or unfortunately, the earlier tradition of executive power was not to be exorcised so readily. Historically, this tradition traces to the fact that the royal prerogative was residual power, that the monarch was first on the ground, that the other powers of government were off-shoots from monarchical power. Moreover, when our forefathers turned to Roman history, as they intermittently did, it was borne in upon them that dictatorship had at one time been a normal feature of republican institutions.

And what history consecrated, doctrine illumined. In Chapter XI of John Locke's Second Treatise on Civil Government, from the pages of which much of the opening paragraphs of the Declaration of Independence comes, we read: "Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government".[36] In Chapter XIV of the same work we are told, nevertheless, that "prerogative" is the power "to act according to discretion without the prescription of the law and sometimes against it"; and that this power belongs to the executive, it being "impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm if they are executed with inflexible rigor." Nor, continues Locke, is this "undoubted prerogative" ever questioned, "for the people are very seldom or never scrupulous or nice in the point" whilst the prerogative "is in any tolerable degree employed for the use it was meant, that is, for the good of the people."[37] A parallel ambivalence pervades both practice and adjudication under the Constitution from the beginning.

The opening clause of Article II of the Constitution reads: "The executive power shall be vested in a President of the United States of America". The primary purpose of this clause, which made its appearance late in the Convention and was never separately passed upon by it, was to settle the question whether the executive branch should be plural or single; a secondary purpose was to give the President a title. There is no hint in the published records that the clause was supposed to add cubits to the succeeding clauses which recite the President's powers and duties in detail.

For all that, the "executive power" clause was invoked as a grant of power in the first Congress to assemble under the Constitution, and outside Congress in 1793. On the former occasion Madison and others advanced the contention that the clause empowered the President to remove without the Senate's consent all executive officers, even those appointed with that consent, and in effect this view prevailed, to be ratified by the Supreme Court 137 years later in the famous Oregon Postmaster Case.[38]

In 1793 the protagonist of "executive power" was Alexander Hamilton, who appealed to the clause in defense of Washington's proclamation of neutrality, issued on the outbreak of war between France and Great Britain. Prompted by Jefferson to take up his pen and "cut him to pieces in face of public," Madison shifted position, and charged Hamilton with endeavoring to smuggle the prerogative of the King of Great Britain into the Constitution via the "executive power" clause.[39] Three years earlier Jefferson had himself written in an official opinion as Secretary of State: [The Executive branch of the government], "possessing the rights of self-government from nature, cannot be controlled in the exercise of them but by a law, passed in the forms of the Constitution".[40]

This time judicial endorsement of the broad conception of the executive power came early. In laying the foundation in Marbury v. Madison for the Court's claim of power to pass on the constitutionality of acts of Congress, Marshall said: "The government of the United States has been emphatically termed a government of laws and not of men".[41] Two pages along he added these words:

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.[42]

From these words arises the doctrine of Political Questions, an escape clause from the trammels of judicial review for high executive officers in the performance of their discretionary duties. The doctrine was continued, even expanded, by Marshall's successor. In Luther v. Borden,[43] decided in 1849, the Court was invited to review the determination by the President that the existing government of Rhode Island was "republican" in form. It declined the invitation, holding that the decision of Congress and of the President as Congress's delegate was final in the matter, and bound the courts. Otherwise said Chief Justice Taney, the guarantee clause of the Constitution (Article IV, section 4) "is a guarantee of anarchy and not of order". But a year later the same Chief Justice, speaking again for the unanimous Court, did not hesitate to rule that the President's powers as commander-in-chief were purely military in character, those of any top general or top admiral.[44] Hamilton had said the same thing in Federalist No. 69.

Alongside the opinions of the Court of this period, however, stand certain opinions of Attorneys General that yield a less balanced bill of fare. For it is the case that, from the first down to the present year of grace, these family lawyers of the Administration in power have tended to favor expansive conceptions of presidential prerogative. As early as 1831 we find an Attorney-General arguing before the Supreme Court that, in performance of the trust enjoined upon him by the "faithful execution" clause, the President "not only may, but ... is bound to avail himself of every appropriate means not forbidden by law."[45] Especially noteworthy is a series of opinions handed down by Attorney-General Cushing in the course of the years 1853 to 1855. In one of these the Attorney-General laid down the doctrine that a marshal of the United States, when opposed in the execution of his duty by unlawful combinations too powerful to be dealt with by the ordinary processes of a federal court, had authority to summon the entire able-bodied force of his precinct as a posse comitatus, comprising not only bystanders and citizens generally but any and all armed forces,[46] which is precisely the theory upon which Lincoln based his call for volunteers in April, 1861.

Also manifest is the debt of Lincoln's message of July 4, 1861, to these opinions. Here in so many words the President lays claim to "the war power", partly on the ground of his duty to "take care that the laws be faithfully executed", partly in reliance on his powers as Commander-in-Chief, incidentally furnishing thereby a formula which has frequently reappeared in opinions of Attorneys-General in recent years. Nor did Lincoln ever relinquish the belief that on the one ground or the other he possessed extraordinary resources of power which Congress lacked and the exercise of which it could not control—an idea in the conscientious pursuit of which his successor came to the verge of utter disaster.

When first confronted with Lincoln's theory in the Prize Cases,[47] in the midst of war, a closely divided Court treated it with abundant indulgence; but in Ex parte Milligan[48] another closely divided Court swung violently to the other direction, adopting the comfortable position that the normal powers of the government were perfectly adequate to any emergency that could possibly arise, and citing the war just "happily terminated" in proof. But once again the principle of equilibrium asserted itself. Five months after Milligan, the same Bench held unanimously in Mississippi v. Johnson[49] that the President is not accountable to any court save that of impeachment either for the nonperformance of his constitutional duties or for the exceeding of his constitutional powers.

This was in the 1866-1867 term of Court. Sixteen years later, in 1882, Justice Samuel Miller gave classic expression to the principle of "a government of laws and not of men" in these words: "No man is so high that he is above the law.... All officers are creatures of the law and are bound to obey it."[50] Eight years later this same great Judge queried whether the President's duty to take care that the laws be faithfully executed is "limited to the enforcement of acts of Congress or of treaties according to their express terms," whether it did not also embrace "the rights, duties, and obligations growing out of the Constitution itself ... and all the protection implied by the nature of the government under the Constitution."[51] Then in 1895, in the Debs Case,[52] the Court sustained unanimously the right of the National Executive to go into the federal courts and secure an injunction against striking railway employees who were interfering with interstate commerce, although it was conceded that there was no statutory basis for such action. The opinion of the Court extends the logic of the holding to any widespread public interest.

The great accession to presidential power in recent decades has been accompanied by the breakdown dealt with earlier of the two great structural principles of the American Constitutional System, the doctrine of Dual Federalism and the doctrine of the Separation of Powers. The first exponent of "the New Presidency", as some termed it, was Theodore Roosevelt, who tells us in his Autobiography that the principle which governed him in his exercise of the presidential office was that he had not only a right but a duty "to do anything that the needs of the Nation demanded unless such action was forbidden by the Constitution or by the laws."[53] In his book, Our Chief Magistrate and his Powers, Ex-President Taft warmly protested against the notion that the President has any constitutional warrant to attempt the role of a "Universal Providence."[54] A decade earlier his destined successor, Woodrow Wilson, had avowed the opinion that "the President is at liberty, both in law and conscience, to be as big a man as he can".[55]

But it is the second Roosevelt who beyond all twentieth-century Presidents succeeded in affixing the stamp both of personality and of crisis upon the Presidency as it exists at this moment. In the solution of the problems of an economic crisis, "a crisis greater than war", he claimed for the National Government in general, and for the President in particular, powers which they had hitherto exercised only on the justification of war. Then when the greatest crisis in the history of our international relations arose, he imparted to the President's diplomatic powers new extension, now without consulting Congress, now with Congress's approval; and when at last we entered World War II, he endowed the precedents of both the War between the States and of World War I with unprecedented scope.[56]

It is timely therefore to inquire whether American Constitutional Law today affords the Court a dependable weapon with which to combat effectively contemporary enlarged conceptions of presidential power. Pertinent in this connection is the aforementioned recent action of the Court in Youngstown v. Sawyer disallowing presidential seizure of the steel industry. The net result of that Case is distinctly favorable to presidential pretensions, in two respects: First, because of the failure of the Court to traverse the President's finding of facts allegedly justifying his action, an omission in accord with the doctrine of Political Questions; secondly, the evident endorsement by a majority of the Court of the doctrine that, as stated in Justice Clark's opinion: "The Constitution does grant to the President extensive authority in times of grave and imperative national emergency".[57] That the Court would have sustained, as against the President's action, a clear-cut manifestation of congressional action to the contrary is, on the other hand, unquestionable. In short, if we are today looking for a check upon the development of executive emergency government, our best reliance is upon the powers of Congress, which can always supply needed gaps in its legislation. The Court can only say "no", and there is no guarantee that in the public interest it would wish to assume this responsibility.

IV

The Concept of Substantive Due Process of Law

A cursory examination of the pages of this volume reveals that fully a quarter of them deal with cases in which the Court has been asked to protect private interests of one kind or another against legislation, most generally state legislation, which is alleged to invade "liberty" or "property" contrary to "due process of law". How is this vast proliferation of cases, and attendant expansion of the Court's constitutional jurisdiction, to be explained? The explanation, in brief, is to be found in the replacement of the original meaning of the due process clause with a meaning of vastly greater scope. Judicial review is always a function, so to speak, of the viable Constitutional Law of a particular period.

From what has been previously said in this Introduction, it clearly appears that the Court's interpretation of the Constitution has involved throughout considerable lawmaking, but in no other instance has its lawmaking been more evident than in its interpretation of the due process clauses, and in no other instance have the state judiciaries contributed so much to the final result. The modern concept of substantive due process is not the achievement of any one American high court; it is the joint achievement of several—in the end, of all.[58]

The thing which renders the due process clause an important datum of American Constitutional Law is the role it has played first and last in articulating certain theories of private immunity with the Constitutional Document. The first such theory was Locke's conception of the property right as anterior to government and hence as setting a moral limit to its powers.[59] But while Locke's influence is seen to pervade the Declarations and Bills of Rights which often accompanied the revolutionary State Constitutions, yet their promise was early defeated by the overwhelming power of the first state legislatures, especially vis-a-vis the property right. One highly impressive exhibit of early state legislative power is afforded by the ferocious catalogue of legislation directed against the Tories, embracing acts of confiscation, bills of pains and penalties, even acts of attainder. A second exhibit of the same kind is furnished by the flood of paper money laws and other measures of like intent which the widespread debtor class forced through the great majority of the state assemblies in the years following the general collapse of values in 1780.

The most important reaction of the creditor interest to this course of legislation was its energetic part in bringing about the Philadelphia Convention. Closer, however, to our purpose is the leadership taken by the new federal judiciary in asserting the availability against predatory state legislation of extra-constitutional principles sounding in Natural Law. In 1795 Justice Paterson of the new Supreme Court admonished a Pennsylvania jury that to construe a certain state statute in a way to bring it into conflict with plaintiff's property rights would render it void. "Men," said he, "have a sense of property.... The preservation of property ... is a primary object of the social compact".[60] Three years later, Justice Chase proclaimed from the Supreme Bench itself, with characteristic emphasis, his rejection of the idea that state legislative power was absolute unless its authority was "expressly restrained" by the constitution of the State.[61] He too was thinking primarily of the rights of property.

To dicta such as these constantly accrued others of like tenor from various high state courts, the total of which had come to comprise prior to the War between the States an impressive body of coherent doctrine protective of vested rights but claiming little direct support from written constitutional texts. This indeed was its weakness. For the question early obtruded itself, whether judicial review could pretend to operate on a merely moral basis. Both the notion that the Constitution was an emanation from the sovereignty of the people, and the idea that judicial review was but a special aspect of normal judicial function, forbade the suggestion. It necessarily followed that unless judicial protection of the property right against legislative power was to be waived, it must be rested on some clause of the constitutional document; and, inasmuch as the due process clause and the equivalent law of the land clause of certain of the early state constitutions were the only constitutional provisions which specifically mentioned property, they were the ones selected for the purpose.

The absorptive powers of the law of the land clause, the precursor in the original state constitutions of the historically synonymous due process clause, was foreshadowed as early as 1819 in a dictum by Justice William Johnson of the United States Supreme Court:

As to the words from Magna Charta ... after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.[62]

Thirty-eight years later, in 1857, the prophecy of these words was realized in the famous Dred Scott Case,[63] in which Section 8 of the Missouri Compromise, whereby slavery was excluded from the territories, was held void under the Fifth Amendment, not on the ground that the procedure for enforcing it was not due process of law, but because the Court regarded it as unjust to forbid people to take their slaves, or other property, into the territories, the common property of all the States.

Meanwhile, in the previous year (1856) the recently established Court of Appeals of New York had, in the landmark case of Wynehamer v. People,[64] set aside a state-wide prohibition law as comprising, with regard to liquors in existence at the time of its going into effect, an act of destruction of property not within the power of government to perform "even by the forms of due process of law". The term due process of law, in short, simply drops out of the clause, which comes to read "no person shall be deprived of property", period. At the same time Judge Comstock's opinion in the case sharply repudiates all arguments against the statute sounding in Natural Law concepts, fundamental principles of liberty, common reason and natural rights, and so forth. Such theories were subversive of the necessary powers of government. Furthermore, there was "no process of reasoning by which it can be demonstrated that the 'Act for the Prevention of Intemperance, Pauperism and Crime' is void, upon principles and theories outside of the constitution, which will not also, and by an easier induction, bring it in direct conflict with the constitution itself."[65] Thus it was foreshadowed that the law of the land and the due process of law clauses, which were originally inserted in our constitutions to consecrate a specific mode of trial in criminal cases, to wit, the grand jury, petit jury process of the common law, would be transformed into a general restraint upon substantive legislation capable of affecting property rights detrimentally.

It is against this background that the adoption of the Fourteenth Amendment in 1868 must be projected. Applied, as in the Dred Scott and Wynehamer cases, the clause which forbids any State "to deprive any person of life, liberty or property without due process of law" proffered the Court, in implication, a vast new jurisdiction, but this the Court at first manifested the greatest reluctance to enter upon. It did not wish, it protested, to become "a perpetual censor upon all State legislation"; nor did it wish, by enlarged conceptions of the rights protected by the Amendment, to encourage Congress to take over, under the fifth section of the Amendment, the regulation of all civil rights. "The federal equilibrium" had already been sufficiently disturbed by the results of the War between the States and Reconstruction.[66]

But this self-denying ordinance, which never had the support of more than a very narrow majority of the Court, soon began to crumble at the edges. It was a period of immense industrial expansion, and the men who directed this wanted a free hand. In 1878 the American Bar Association was formed from the elite of the American Bar. Organized as it was in the wake of the "barbarous" decision—as one member termed it—in Munn v. Illinois,[67] in which the Supreme Court had held that states were entitled by virtue of their police power to prescribe the charges of "businesses affected with a public interest," the Association, through its more eminent members, became the mouthpiece of a new constitutional philosophy which was compounded in about equal parts from the teachings of the British Manchester School of Political Economy and Herbert Spencer's highly sentimentalized version of the doctrine of evolution, just then becoming the intellectual vogue; plus a "booster"—in the chemical sense—from Sir Henry Maine's Ancient Law, first published in 1861. I refer to Maine's famous dictum that "the movement of the progressive societies has hitherto been a movement from Status to Contract". If hitherto, why not henceforth?[68]

In short, the American people were presented, overnight as it were, with a new doctrine of Natural Law. Encouraged by certain dicta of dissenting Justices of the Supreme Court, a growing procession of high State courts—those of New York, Pennsylvania, Illinois, and Massachusetts, leading the way—now began infiltrating the due process clauses and especially the word "liberty" thereof, of their several State constitutions with the new revelation. The product of these activities was the doctrine of freedom of contract, the substantial purport of which was that any legislation which restricted the liberty of male persons twenty-one years of age, whether they were employers or employees, in the making of business contracts, far from being presumptively constitutional, must be justified by well known facts of which the court was entitled to take judicial notice; otherwise it fell under the ban of the due process clause.[69]

At last, in 1898, the Supreme Court at Washington, following some tentative gestures in that direction, accepted the new dispensation outright. In Smyth v. Ames decided that year, partially overturning Munn v. Illinois, it gave notice of its intention to review in detail the "reasonableness" of railway rates set by State authority and in Holden v. Hardy it ratified, at the same term, the doctrine of freedom of contract.[70] The result of the two holdings for the Court's constitutional jurisdiction is roughly indicated by the fact that whereas it had decided 134 cases under the Amendment during the thirty preceding years, in the ensuing thirteen years it decided 430 such cases.[71]

For more than a generation now the Court became the ultimate guardian, in the name of the Constitutional Document, of the laissez-faire conception of the proper relation of Government to Private Enterprise, a rather inconstant guardian, however, for its fluctuating membership tipped the scales now in favor of Business, now in favor of Government. And today the latter tendency appears to have prevailed. In its decisions early in 1937 sustaining outstanding Roosevelt Administration measures, the Court not only subordinated the freedom of employers to contract to the freedom of employees to organize, but intimated broadly that liberty in some of its phases is much more dependent upon legislative implementation that upon judicial protection.[72]

In contrast to this withdrawal, however, has been the Court's projection of another segment of "liberty" into new territory. In Gitlow v. New York,[73] decided in 1925, even in sustaining an antisyndicalist statute, the Court adopted arguendo the proposition which it had previously rejected, that "liberty" in Amendment XIV renders available against the States the restraints which Amendment I imposes on Congress. For fifteen years little happened. Then in 1940, the Court supplemented its ruling in the Gitlow Case with the so-called "Clear and Present Danger" rule, an expedient which was designed to divest state enactments restrictive of freedom of speech, of press, of religion, and so forth, of their presumed validity, just as, earlier, statutes restrictive of freedom of contract had been similarly disabled. By certain of the Justices, this result was held to be required by "the preferred position" of some of these freedoms in the hierarchy of constitutional values; an idea to which certain other Justices demurred. The result to date has been a series of holdings the net product of which for our Constitutional Law is at this juncture difficult to estimate; and the recent decision in Dennis v. United States under Amendment I augments the difficulty.[74]

A passing glance will suffice for the operation of the due process clause of Amendment V in the domain of foreign relations and the War Power. The reader has only to consult in these pages such holdings as those in Belmont v. United States, Yakus v. United States, Korematsu v. United States, to be persuaded that even the Constitution is no exception to the maxim, inter arma silent leges.[75]

In short, the substantive doctrine of due process of law does not today support judicial intervention in the field of social and economic legislation in anything like the same measure that it did, first in the States, then through the Supreme Court on the basis of Amendment XIV, in the half century between 1885 and 1935. But this fact does not signify that the clause is not, in both its procedural sense and its broader sense, especially when supplemented by the equal protection clause of Amendment XIV, a still valuable and viable source of judicial protection against parochial despotisms and petty tyrannies. Yet even in this respect, as certain recent decisions have shown, the Court can often act more effectively on the basis of congressional legislation implementing the Amendment than when operating directly on the basis of the Amendment itself.[76]