Magna Carta, and Other Addresses

by William D. Guthrie

We find many political and social reformers advocating an absolute legislative body, whose edicts, in response to the wishes, interests, or prejudices of the majority, shall at once become binding on all, no matter how unjust or oppressive these edicts may be. Those who are loudest in thus demanding the supremacy of the legislative power are equally loud in charging that our legislatures are inefficient or corrupt and in proclaiming distrust of the people's representatives in legislative bodies. In one breath we are asked to vest legislatures with power and discretion beyond the control of the courts, and in the next breath we are told that legislative bodies are not to be trusted by the people, and hence that we must have the initiative and the referendum.

Other reformers would vest greater power in the executive, so as to enable him to dictate to legislatures whatever he deemed or professed to think best for the common welfare or for social progress. In the final analysis this would, of course, reduce us to a despotism pure and simple, and place Congress and the state legislatures in the condition of the Roman senate in the second century. Argue as we may from the admonitions and experience of the past, the defiant answer is that the people will select the executive and are prepared to trust him, an answer that singularly disregards the fact that they now select the legislators whom they no longer trust, and that practical reform in legislation is ready to their hand if they will only insist upon character and ability in their representatives.

Others again would deny to the courts the power and duty to declare unconstitutional and void any enactment of a legislative body that was in conflict with the constitution, or, if not going quite so far, would give the courts power to disregard constitutional limitations whenever the judges found or fancied that an enactment was in consonance with prevailing morality or the opinion of the majority in respect of matters relating to the police power or social progress or social justice. They would have the judiciary interpret and enforce a constitution not according to the mandate of the people who adopted it, nor according to the true meaning and intent of the language employed by the framers, nor according to settled general rules and principles, but according to the ever-changing desires or notions or opinions of the majority and the personal ideas of so-called progressive or sympathetic judges. Many of those who charge the judiciary with having usurped the power to determine whether a particular enactment does or does not conflict with the fundamental and supreme law as established by the people themselves, would now place a far greater power in the hands of the courts by authorizing them to expand or contract a constitution by judicial construction, and would thus in reality vest in the judges an arbitrary discretion. Under this doctrine, practically every constitutional restraint could be readily circumvented, perverted, or nullified; constitutional rights could be frittered away, and great landmarks of human progress could be undermined.

We should then have government by the judiciary with a vengeance. Our constitutional system would be no longer reasonably fixed and stable, no longer regulated by the justice of necessary general rules, but would be subject to constant uncertainty and change as judges might think the moral atmosphere of the moment or the will or opinion or interests of the majority required. It would, of course, be better to have no constitutional restraints at all, and to vest supreme power and corresponding responsibility in the legislative branch of our government. It is of the essence of judicial power that judges in deciding cases shall be bound by principles, rules and precedents, that they shall not be permitted to exercise arbitrary discretion, and that they shall be required to give reasons for their decisions. A court bound by no rules or principles at all would not be exercising judicial power as we understand that term. If we were to vest in legislatures or courts the discretion to obey or disobey constitutional restraints according as the prevailing moral or political sentiment might seem to dictate, we would at once deprive such restraints of all practical force and effect, and would have a constitution only in name and form and not in substance. As the late Chief Justice Fuller, clarum et venerabile nomen, so well said in the Lottery case, "our form of government may remain notwithstanding legislation or decision, but, as long ago observed, it is with governments as with religions, the form may survive the substance of the faith."[11]

The limited time at my disposal compels me to confine this address to the aspect of constitutional morality which is presented by the criticism of the courts for refusing to enforce unconstitutional statutes. This seems to me to be the most dangerous of all the lines of attack. I regret that I have not time to deal with other important aspects of my subject, such as the movement for the recall of judges and judicial decisions, the agitation for the initiative and the referendum, and the growing practice on the part of legislatures and executives of abandoning the consideration of constitutional questions and leaving this duty to the courts, thus casting upon the judges the sole responsibility and frequently the unpopularity and even odium of enforcing constitutional restraints.

Few of us, I assume, would seriously suggest that the judicial department is to be above criticism, or that it is to be deemed sacrosanct so that we must bow and submit in silence, without the right of challenge, criticism, or censure, to whatever the courts declare to be law. Such a view would be absurd. Of course, judges make mistakes as the wisest and best men make mistakes. They are not infallible. But neither are our legislative bodies infallible, nor is the crowd. There must be the fullest liberty of criticism and if need be of censure of our judges as of all other public officials. Fair and just criticism, however, would be distinctly educational, and it could tend only to restore the courts to public favor and confidence. The danger is not in freedom of criticism, but in unfair and unfounded criticism supported by distorted or false statements. Our judicial system is inherently sound enough and strong enough to withstand and overcome any fair criticism. We should, therefore, encourage the fullest discussion of judicial decisions in constitutional cases in order that constitutional principles may be adequately explained and the necessity for the observance of constitutional morality brought home to the people. Let us, however, insist that the facts be truthfully stated. If the reasons and principles of justice which support most of the decisions criticized could be explained to all classes in simple language and in terms intelligible to laymen as well as to lawyers, much of the misapprehension of judicial decisions and prejudice against the courts and constitutional restraints would be dispelled. To tell the man in the street or in the workshop that a statute is in conflict with the guaranty of due process of law or of the law of the land, conveys no meaning to his mind; yet, if he understood the fundamental principles involved and the consequences of disregarding them, he might be persuaded of the justice and propriety of the decision under discussion.

I shall call your attention to a few examples of alleged abuse or usurpation of power by the judiciary, and endeavor to show the characteristics of much of the criticism of the judges and the manner in which the masses are being constantly prejudiced and inflamed against the courts.

The case in the New York courts which probably is being more criticized and misrepresented than any other is known as the Tenement House Tobacco case (Matter of Jacobs),[12] decided in January, 1885. The courts then held unconstitutional an act which forbade the manufacture of tobacco products in certain tenement houses in New York and Brooklyn, because the statute unwarrantably and unreasonably interfered with the liberty of the individual. The enactment was an attempt on the part of the owners of large tobacco factories to destroy the competition of cigar manufacturers who worked at home. It was not an honest health measure at all; it was not in fact designed to protect the health of tobacco workers, and it did not contain a single provision tending in any degree to secure sanitary conditions of work or living. Not one word in the opinions of the courts in the Jacobs case prevented the legislature from adopting regulations to secure wholesome conditions in the manufacture of any article. Since that decision, the New York constitution has been carefully revised by a constitutional convention in 1894, and in addition has been repeatedly amended, no less than nineteen separate amendments having been adopted by the people, whilst a large number of additional proposed amendments have been rejected. But in neither the revision nor in any of the amendments, whether adopted or rejected, was any change suggested in the rule of constitutional law declared in the Tenement House case, although the subject was directly called to the attention of the convention. For more than a quarter of a century, the people of the state of New York have acquiesced in the decision of the Court of Appeals as fair, just and satisfactory.

Jacobs with his wife and two children lived in a tenement house in the city of New York and occupied an apartment of seven rooms in a building where there were only three other apartments, all of equal size. In this apartment he carried on the trade of manufacturing cigars, and the rooms in which he did so were separated from the sleeping and cooking-rooms. The testimony showed that there was no odor of tobacco in these sleeping and cooking-rooms. The conditions under which he was carrying on his trade in his own home for the support of himself and his family were much more healthful than if he and his assistants had been compelled to work in a crowded factory, particularly in 1884, when there were no such sanitary conditions in factories as now prevail under the beneficent operation of our present public health and labor laws. It was shown that, when this legislation was enacted, 840,000,000 cigars were being manufactured annually in the city of New York, of which about 370,000,000, or 44 per cent., were made in the homes of dwellers in tenement or apartment houses, and that about two thousand artisans were supporting themselves and their families by thus working at home. The board of health of the city of New York had officially declared, after careful investigation, as set forth in the brief of Mr. Evarts, then the leader of the American bar, "that the health of the tenement-house population is not jeopardized by the manufacture of cigars in those houses; that this bill is not a sanitary measure, and that it has not been approved by this board." It also appeared from this brief that while the death-rate in the city of New York generally was 31 in each 1,000, it was only 9 in each 1,000 in the tenement houses where cigars were being manufactured. The act, if valid and enforceable, would have crushed the competition of home workers with the tobacco factories; it would have deprived the tenement-house dweller of the liberty to exercise his trade of cigar-making at home even under the most sanitary conditions, and it would have driven every such workman and the working members of his family into crowded and generally unhealthful factories, to be harassed and oppressed by strikes and lockouts and the other troubles which attend modern labor conditions, to say nothing of being exposed to all the mischiefs, physical and moral, that are inseparable from crowded workshops. The court held that the statute was not a legitimate health regulation and released Jacobs from imprisonment. The principle of constitutional law recognized and applied was that an individual cannot be made a criminal for working at a lawful trade in his own home under sanitary conditions, and cannot be compelled by discriminatory legislation to labor in a crowded factory. If the provisions of the act had not been declared to be in conflict with the constitutional guaranty of personal liberty, similar statutes could have been passed with respect to all kinds of home work, and all artisans, whether men or women, could have been driven into factories at the dictation of factory owners or trade-unions having sufficient political influence to secure the necessary legislation.

I digress here a moment to point out that people urging particular enactments too often overlook the effect of disregarding a principle and establishing a precedent. Constitutions declare general rules or principles of justice, which sometimes do not coincide with the justice of particular cases. The framing of general rules of conduct so as to bring about practical justice in the greatest number of cases and with the fewest exceptions, constitutes the science of jurisprudence, of which constitution-making is but a branch, and the application of these general rules to practical affairs is the duty of legislatures and courts. The statutes before the courts are frequently recognized and conceded to be only entering wedges and experiments, and, if sustained, are certain to be followed by others far broader and more radical. If legislative power exists to regulate a subject, the extent or degree of its exercise is essentially for the legislature to determine in its discretion and cannot be controlled by the courts. Hence, a court must always consider, in determining the constitutionality of a statute, not merely the features of the particular statute before it and not merely the justice or merits of the particular case as between man and man or between the state and the individual, but what might be done under the same principle if the statute before it were upheld and a precedent established. Thus, if we once grant the power of a legislature to prohibit work at home under sanitary conditions in one trade, then every trade becomes subject to the same power of regulation and prohibition, and all working men and women can be driven into crowded factories.