Résumé
Considered for the two fundamental subjects of the powers of government and the liberties of individuals, interpretation of the Constitution by the Supreme Court falls into four tolerably distinguishable periods. The first, which reaches to the death of Marshall, is the period of the dominance of the Constitutional Document. The tradition concerning the original establishment of the Constitution was still fresh, and in the person and office of the great Chief Justice the intentions of the framers enjoyed a renewed vitality. This is not to say that Marshall did not have views of his own to advance; nor is it to say that the historicity of a particular theory concerning the Constitution is necessarily a matter of critical concern save to students of history. It is only to say that the theories which Marshall urged in support of his preferences were, in fact, frequently verifiable as theories of the framers of the Constitution.
The second period is a lengthy one, stretching from the accession of Chief Justice Taney in 1835 to, say, 1895. It is the period par excellence of Constitutional Theory. More and more the constitutional text fades into the background, and the testimony of the Federalist, Marshall's sole book of precedents, ceases to be cited. Among the theories which in one way or other received the Court's approval during this period were the notion of Dual Federalism, the doctrine of the Police Power, the taboo on delegation of legislative power, the derived doctrine of Due Process of Law, the conception of liberty as Freedom of Contract, and still others. The sources of some of these doctrines and the nature of the interests benefited by them have been indicated earlier in these pages. Their net result was to put the national law-making power into a strait-jacket so far as the regulation of business was concerned.
The third period was that of Judicial Review pure and simple. The Court, as heir to the accumulated doctrines of its predecessors, found itself for the time being in possession of such a variety of instruments of constitutional exegesis that it was often able to achieve almost any result in the field of constitutional interpretation which it considered desirable, and that without flagrant departure from judicial good form. Indeed, it is altogether apparent that the Court was in actual possession and in active exercise of what Justice Holmes once termed "the sovereign prerogative of choice." It was early in this period that Governor Hughes, soon to ascend the Bench, said, without perhaps intending all that his words literally conveyed, "We are under a Constitution, but the Constitution is what the judges say it is." A decade later it was suggested by an eminent law teacher that attorneys arguing "due process cases" before the Court ought to address the Justices not as "Your Honors" but as "Your Lordships"; and Senator Borah, in the Senate debate on Mr. Hughes' nomination for Chief Justice, in 1930, declared that the Supreme Court had become "economic dictator in the United States". Some of the Justices concurred in these observations, especially Justices Holmes and Brandeis. Asserted the latter, the Court has made itself "a super-legislature" and Justice Holmes could discover "hardly any limit but the sky" to the power claimed by the Court to disallow State acts "which may happen to strike a majority [of its members] as for any reason undesirable".[77]
The fourth period is still with us. It was ushered in by World War I, but its results were consolidated and extended during the 1930's, and have been subsequently still further enlarged and confirmed by World War II and the "cold war". Many of these results have been treated above. Others can be searched out in the pages of this volume. What they sum up to is this: that what was once vaunted as a Constitution of Rights, both State rights and private rights, has been replaced to a great extent by a Constitution of Powers. The Federal System has shifted base in the direction of a consolidated national power; within the National Government itself there has been an increased flow of power in the direction of the President; even judicial enforcement of the Bill of Rights has faltered at times, in the presence of national emergency.
In this situation judicial review as exercised by the Supreme Court does not cease being an important technique of government under the Constitution, but its field of operation has contracted. The purpose which it serves more and more exclusively is the purpose for which it was originally created to serve, the maintenance of the principle of National Supremacy. But in fact, this is the purpose which it has always served predominantly, even in the era when it was cutting its widest swathe in the field of national legislative policy, the period from 1895 to 1935. Even then there was a multiplicity of state legislatures and only one Congress, so that the legislative grist that found its way to the Court's mill was overwhelmingly of local provenience. And since then several things have happened to confirm this predominance: first, the annexation to Amendment XIV of much of the content of the Federal Bill of Rights; secondly, the extension of national legislative power, especially along the route of the commerce clause, into the field of industrial regulation, with the result of touching state legislative power on many more fronts than ever before; thirdly, the integration of the Nation's industrial life, which has brought to the National Government a major responsibility for the maintenance of a functioning social order.
Forty years ago the late Justice Holmes said:
"I do not think the United States would come to an end if we [the Court] lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States".[78]
By and large, this still sizes up the situation.
Edward S. Corwin.
January, 1953.
Notes
[1] Cong. Record, vol. 23, p. 6516.
[2] The Genessee Chief, 12 How. 443 (1851), overturning The Thomas Jefferson, 10 Wheat. 428 (1825).
[3] Knox v. Lee, 12 Wall. 457 (1871); Hepburn v. Griswold, 8 Wall. 603 (1870).
[4] Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429; Same, 158 U.S. 601.
[5] Cong. Record, vol. 78, p. 5358.
[6] Smith v. Allwright, 321 U.S. 649, 665.
[7] Ibid. 669.
[8] The Supreme Court in United States History, III, 470-471 (1922).
[9] The Dartmouth College Case (1819) occupies 197 pages of 4 Wheaton; Gibbons v. Ogden (1824), 240 pages of 9 Wheaton; The Charles River Bridge case (1837), 230 pages of 11 Peters; the Passenger Cases (1849), 290 pages of 7 Howard; the Dred Scott Case (1857), 240 pages of 19 Howard; Ex parte Milligan (1866), 140 pages of 4 Wallace; the first Pollock Case (1895), 325 pages of 157 U.S.; Myers v. United States (1926), 243 pages of 272 U.S.
[10] Max Farrand, The Records of the Federal Convention of 1787, III, 240-241 (1911).
[11] See Taney's words in 5 How. 504, 573-574 (1847), and 7 How. 283, 465-70 (1849).
[12] 21 How. 506, 520-521 (1859).
[13] 295 U.S. 495 (1935); 298 U.S. 238 (1936).
[14] 298 U.S. 238, 308-309.
[15] 312 U.S. 100 (1941).
[16] 100 U.S. 371.
[17] 227 U.S. 308, 322.
[18] Dobbins v. Commsrs., 16 Pet. 435 (1842); Collector v. Day, 11 Wall. 113. (1870).
[19] 4 Wheat. 316, 431 (1819).
[20] For references and further details, see E.S. Corwin, Court over Constitution, 129-176 (1938).
[21] [Transcriber's Note: Footnote 21 is missing from original text.]
[22] In this connection, see Oklahoma v. Civil Service Comm'n., 330 U.S. 127, 142-145 (1947).
[23] 3 Dall. 54, 74.
[24] 12 Wall. 457, 555 (1871).
[25] 130 U.S. 581, 604.
[26] Fong Yue Ting, 149 U.S. 698 (1893).
[27] 299 U.S. 304, 316-318.
[28] See also University of Illinois v. United States, 289 U.S. 48, 59 (1933). In Lichter v. United States, 334 U.S. 742, 782 (1948), Justice Burton, speaking for the Court, says: "The war powers of Congress and the President are only those which are derived from the Constitution", but he adds: "the primary implication of a war power is that it shall be an effective power to wage war successfully", which looks very like an attempt to duck the doctrine of an inherent war power while appropriating its results.
[29] Welldon (tr.), Book VI, chap. XIV (1888). Jowett and some others propose a different arrangement.
[30] John Locke. The Second Treatise on Civil Government, § 141. For the historical background of this principle, see P.W. Duff and H.E. Whiteside, "Delegata Potestas Non P[=o]test Delegari", Selected Essays on Constitutional Law, IV, 291-316 (1938).
[31] Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Schechter Corp. v. United States, 295 U.S. 495 (1935).
[32] 343 U.S. 579 (1952).
[33] 299 U.S. 304, 327-329.
[34] 343 U.S. 579, 690.
[35] Andrew C. McLaughlin, A Constitutional History of the United States, 81 (1935).
[36] Locke, op. cit., § 137.
[37] Ibid., § 159-161.
[38] Meyers v. United States, 272 U.S. 52 (1926).
[39] For the famous debate between "Pacificus" (Hamilton) and "Helvidius" (Madison), see E.S. Corwin, The President's Control of Foreign Relations, chap. I (1917).
[40] Writings of Thomas Jefferson, V, 209 (P.L. Ford, ed.; 1895).
[41] 1 Cr. 137, 163 (1803).
[42] Ibid., 165-166.
[43] 7 How. 1.
[44] Fleming v. Page, 9 How. 602 (1850).
[45] United States v. Tingy, 5 Pet. 115, 122.
[46] 6 Op. Atty. Gen. 466 (1854).
[47] 2 Black 635 (1863).
[48] 4 Wall. 2 (1866).
[49] 4 Wall. 475 (1866).
[50] United States v. Lee, 106 U.S. 196, 220.
[51] In Re Neagle, 135 U.S. 1, 64.
[52] 158 U.S. 564.
[53] Autobiography, 388-389 (1913).
[54] Op. cit., 144 (1916).
[55] Constitutional Government in the United States, 70 (1908).
[56] See E.S. Corwin. Total War and the Constitution, 35-77 (1947).
[57] 343 U.S. 579, 662.
[58] See E.S. Corwin. Liberty Against Government, Chaps. III, IV (1948).
[59] "... the supreme power cannot take from any man any part of his property without his consent". Second Treatise, § 138.
[60] Van Home's Lessee v. Dorrance, 2 Dall. 304, 310 (1795).
[61] Calder v. Bull, 3 Dall. 386, 388-389 (1798). See also Loan Association v. Topeka, 20 Wall. 655 (1875).
[62] Bank of Columbia v. Okely, 4 Wheat. 235, 244.
[63] Scott v. Sandford, 19 How. 393, 450 (1857).
[64] 13 N.Y. 378 (1856).
[65] Ibid. 390-392. The absolute veto of the Court of Appeals in the Wynehamer case was replaced by the Supreme Court, under the due process clause of the Fourteenth Amendment, by a more flexible doctrine, which left it open to the State to show reasonable justification for that type of legislation in terms of acknowledged ends of the Police Power, namely, the promotion of the public health, safety and morals. See Mugler v. Kansas, 123 U.S. 623 (1887); and for a transitional case, Bartemeyer v. Iowa, 18 Wall. 129 (1874).
[66] The Slaughter House Cases, 16 Wall. 36, 78-82 (1873). The opinion of the Court was focused principally on the privileges and immunities clause, and the narrow construction given it at this time is still the law of the Court. But Justices Bradley and Swayne pointed out the potentialities of the due process of law clause, and the former's interpretation of it may be fairly regarded as the first step toward the translation by the Court of "liberty" as Freedom on Contract.
[67] 94 U.S. 113 (1876).
[68] Benjamin R. Twiss, Lawyers and the Constitution, How Laissez Faire Came to the Supreme Court, 141-173 (1942).
[69] See especially Lochner v. New York, 198 U.S. 45 (1905); and Adkins v. Children's Hospital, 261 U.S. 525 (1923).
[70] 169 U.S. 466; ibid. 366.
[71] See Charles W. Collins, The Fourteenth Amendment and the States, 188-206 (1912).
[72] Labor Board v. Jones & Laughlin, 301 U.S. 1, 33-34; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391-392.
[73] 268 U.S. 652, 666; cf. Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543 (1922).
[74] The subject can be pursued in detail in connection with Amendment I, pp. [769-810].
[75] These cases are treated in the text, see [Table of Cases].
[76] See Williams v. United States, 341 U.S. 97 (1951).
[77] See: Oliver Wendell Holmes, Collected Legal Papers, 239, 295-296 (1920); Merlo J. Pusey, Charles Evans Hughes, I, 203-206 (1951). Burns Baking Co. v. Bryan, 204 U.S. 504, 534 (1924); Baldwin v. Missouri, 281 U.S. 586, 595 (1930); American Political Science Review, xii, 241 (1918); New York Times, February 12, 1930. It was also during the same period that Judge Andrew A. Bruce of North Dakota wrote: "We are governed by our judges and not by our legislatures.... It is our judges who formulate our public policies and our basic law". The American Judge, 6, 8 (1924). Substantially contemporaneously a well read French critic described our system as Le Gouvernment des Juges (1921); while toward the end of the period Louis B. Boudin published his well known Government by Judiciary (2 vols., 1932).
[78] Collected Legal Papers, 295-296.