Chapter V: The Federal Judiciary (2)

The courts not only claim to be the final arbiters of all constitutional questions, but have gone much farther than this and asserted their right to annul legislative acts not in conflict with any constitutional provision. Story says: "Whether, indeed, independently of the Constitution of the United States, the nature of republican and free government does not necessarily impose some restraints upon the legislative power has been much discussed. It seems to be the general opinion, fortified by a strong current of judicial opinion, that, since the American Revolution, no state government can be presumed to possess the transcendental sovereignty to take away vested rights of property."[91]

The judiciary has thus claimed not only the power to act as the final interpreter of the Constitution, but also the right, independently of the Constitution, to interpret the political system under which we live, and make all legislative acts conform to its interpretation of that system. According to this doctrine the courts are the final judges of what constitutes republican government and need not base their power to annul a legislative act on anything contained in the Constitution itself. If we accept this view of the matter, legislation must conform not only to the Constitution as interpreted by the judiciary, but to the political and ethical views of the latter as well. The President and Congress derive their authority from the Constitution, but the judiciary claims, as we have seen, a control over legislation not conferred by the Constitution itself. Yet, while laying claim to powers that would make it supreme, the judicial branch of our Federal government has, as a rule, been careful to avoid any open collision, or struggle for supremacy, with the other branches of the government. It has retained the sympathy and approval of the conservative classes by carefully guarding the rights of property and, by declining to interfere with the political discretion of Congress or the President, it has largely escaped the hostile criticism which any open and avowed attempt to thwart the plans of the dominant party would surely evoke. But in thus limiting its own authority, the Supreme Court has attempted to make a distinction between judicial and political powers which does not appear to have any very substantial basis. The essential marks of a judicial power, Judge Cooley tells us, are "that it can be exercised only in a litigated case; that its direct force is spent in determining the rights of the parties to that case; and that unless and until a case has arisen for judicial determination, it can not be invoked at all."[92]

"The power given to the Supreme Court," he says, "to construe the Constitution, to enforce its provisions, to preserve its limitations, and guard its prohibitions, is not _political_ power, but is judicial power alone because it is power exercisable by that court only in the discharge of the judicial function of hearing and deciding causes in their nature cognizable by courts of law and equity."[93]

In the first place it is to be observed that judicial power as thus defined is practically co-extensive with that of the legislature, since scarcely an exercise of legislative authority could be mentioned which would not affect the rights of persons or of property and which could not, therefore, be made the subject of a judicial controversy.

In the second place, it must be remembered that the Federal judiciary in assuming the exclusive right to interpret the Constitution has taken into its keeping a power which, as we have seen, was not judicial in character when the Constitution was adopted, and is not even now considered judicial in any other important country. In declaring a legislative act null and void it is exercising a power which every sovereign law-making body possesses, the power to defeat any proposed legislation by withholding its assent. The mere fact that our Supreme Judges and our legal writers generally have with practical unanimity called it a judicial power does not make it such. That it is in reality a legislative and not a judicial power is amply confirmed by the uniform and time-honored practice of all other nations, even including England, whose institutions until a century and a quarter ago were our own.

There is, however, no difficulty in understanding why those who framed the Constitution and controlled its interpretation exhausted the arsenal of logic in trying to prove that it was a judicial power. This was merely a part of their plan to make the Supreme Court practically a branch of the Federal legislature and thereby secure an effective check on public opinion. As the power could not be expressly given without disclosing too clearly the purpose of the Convention, it was necessary that it should be implied. And it could be held to be implied only by showing that it was a natural, usual and, under the circumstances, proper power for the judiciary to exercise. Unless it could be established, then, that it was essentially a judicial function and not a political or legislative power, its assumption by the Supreme Court could not be defended on any constitutional grounds. This explains the persistent and untiring efforts to convince the American people that the power to set aside an act of Congress is purely judicial--efforts which, though supported by the weight of American authority, are far from convincing.

The Supreme Court has, it is true, time and again expressly disclaimed all right to exercise legislative or political power; yet under the pretext that the authority to annul legislation is purely judicial, it has made use of a power that necessarily involves the exercise of political discretion. The statement, then, that it is the settled policy of this body not to interfere with the political powers of the other departments can not be taken literally, since under the accepted interpretation of the Constitution it has the power to, and as a matter of fact does interfere, whenever it declares an act of Congress null and void.

It would be a mistake, then, to suppose that the Federal judiciary has suffered any loss of influence through its voluntary relinquishment of the veto power in the case of political questions. This self-imposed restriction on its authority merely affords it a convenient means of placing beyond its jurisdiction measures which it may neither wish to approve nor condemn. And since the court must decide what are and what are not political questions, it may enlarge or narrow the scope and meaning of the word _political_ to suit its purposes. As a matter of fact, then, the power which it appears to have voluntarily surrendered, it still largely retains.

Upon the whole, the Supreme Court has been remarkably fortunate in escaping hostile criticism. Very rarely have its decisions and policy been attacked by any organized party. In the platform of the Republican party of 1860 the strong pro-slavery attitude of the court was, it is true, severely denounced. But from that time until 1896 no party dared to raise its voice in criticism of the Federal judiciary. Both the Democratic and the Populist platforms of the latter date, however, condemned the Income Tax decision and government by injunction. The Democratic platform also hinted at the possible reorganization of the Supreme Court--the means employed by the Republican party to secure a reversal of the Legal Tender decision of 1869.

This comparative freedom from criticism which the Supreme Court has enjoyed until recent years does not indicate that its decisions have always been such as to command the respect and approval of all classes. It has from the beginning had the full confidence of the wealthy and conservative, who have seen in it the means of protecting vested interests against the assaults of democracy. That the Supreme Court has largely justified their expectations is shown by the character of its decisions.

During the first one hundred years of its history two hundred and one cases were decided in which an act of Congress, a provision of a state constitution or a state statute, was held to be repugnant to the Constitution or the laws of the United States, in whole or in part. Twenty of these involved the constitutionality of an act of Congress. One hundred and eighty-one related to the Constitution or the statute of a state. In fifty-seven instances the law in question was annulled by the Supreme Court on the ground that it impaired the obligation of contracts. In many other cases the judicial veto was interposed to prevent what the court considered an unconstitutional exercise of the power to regulate or tax the business or property of corporations.[94]

These decisions have been almost uniformly advantageous to the capital-owning class in preserving property rights and corporate privileges which the unhindered progress of democracy would have abridged or abolished. But we need not confine our attention to these comparatively few instances in which laws have actually been declared null and void. There is a much more numerous and more important class of cases in which the Supreme Court, while not claiming to exercise this power, has virtually annulled laws by giving them an interpretation which has defeated the purpose for which they were enacted. The decisions affecting the powers of the Inter-State Commerce Commission may be cited as an illustration. This body, created by Congress for the purpose of regulating the railway traffic of the country, has, as Mr. Justice Harlan observes,[95] "been shorn by judicial interpretation, of authority to do anything of an effective character." Both the general and the state governments in their efforts to grapple with this problem have encountered the restraining arm of the Federal judiciary which has enlarged its jurisdiction until nearly every important case involving corporate interests may be brought before the Federal court.

It is not, however, in the laws which have been annulled or modified by interpretation that we find the chief protection afforded to capital, but rather in the laws which have not been enacted. The mere existence of this power and the certainty that it would be used in defence of the existing social order has well-nigh prevented all attacks on vested rights by making their failure a foregone conclusion.

It is but natural that the wealthy and influential classes who have been the chief beneficiaries of this system should have used every means at their command to exalt the Supreme Court and thereby secure general acquiescence in its assumption and exercise of legislative authority. To the influence of these classes in our political, business, and social life must be attributed in large measure that widespread and profound respect for the judicial branch of our government which has thus far almost completely shielded it from public criticism.

There are many indications, however, that popular faith in the infallibility of the Supreme Court has been much shaken in recent years. This is not surprising when we consider the wavering policy of that body in some of the important cases that have come before it. Take, for example, the _Legal Tender_ decisions. The court at first declared the legal tender acts unconstitutional by a majority of five to three. Then one of the justices who voted with the majority having resigned and Congress having created an additional judgeship, Justices Strong and Bradley were appointed to fill these vacancies. The former, as a member of the Supreme Bench of the State of Pennsylvania, had rendered a decision upholding the constitutionality of these acts, and the latter was said to hold the same opinion. At any rate the first decision was reversed by a majority of five to four. The point at issue in these two decisions was whether Congress had authority to enact measures of this kind in time of war. The matter coming up again, the Supreme Court decided, and this time by a majority of eight to one, that Congress had this power, not only during war, but in times of peace as well.[96]

Reference should also be made in this connection to the Income Tax decisions of 1895. The first of these was a tie, four to four, Justice Jackson being absent. Six weeks later the second decision was read declaring the Income Tax unconstitutional by a vote of five to four, Justice Shiras, who had voted on the first hearing to uphold the Income Tax, now voting against it. This change in the attitude of a single member of the court converted what would have been a majority for, into a majority against the measure, overruled a line of decisions in which the tax had been sustained and thereby effectually deprived Congress of the power to impose a Federal Income Tax until such time as the court may change its mind. Even more significant are the recent Insular cases in which the division of opinion and diversity of grounds for the conclusions reached are, to say the least, surprising.

One may well ask, after viewing these decisions, if constitutional interpretation as practiced by the Supreme Court is really a science in the pursuit of which the individual temperament, personal views and political sympathies of the Justices do not influence the result. Have we gained enough under this system in the continuity and consistency of our legislative policy and its freedom from class or political bias to compensate us for the loss of popular control? That these questions are likely to receive serious consideration in the near future we can scarcely doubt, when we reflect that the Supreme Court has, by the character of its own decisions, effectually exploded the doctrine of judicial infallibility, which constitutes the only basis upon which its monopoly of constitutional interpretation can be defended.

The evident lack of sympathy with proposed reforms which has, upon the whole, characterized the proceedings of the Federal courts is rather strikingly illustrated in the address of Judge Taft on "Recent Criticisms of the Federal Judiciary." He makes use of the following language: "While socialism, as such, has not obtained much of a foothold in this country, ... schemes which are necessarily socialistic in their nature are accepted planks in the platform of a large political party. The underlying principle of such schemes is that it is the duty of the government to equalize the inequalities which the rights of free contract and private property have brought about, and by enormous outlay derived as far as possible from the rich to afford occupation and sustenance to the poor. However disguised such plans of social and governmental reform are, they find their support in the willingness of their advocates to transfer without any compensation from one who has acquired a large part of his acquisition to those who have been less prudent, energetic, and fortunate. This, of course, involves confiscation and the destruction of the principle of private property."[97] This emphatic condemnation of proposed reforms which had the full sympathy and approval of many thoughtful and conscientious people furnishes the show of justification at least for the very criticisms which it was intended to silence.

With the progress of democracy it must become more and more evident that a system which places this far-reaching power in the hands of a body not amenable to popular control, is a constant menace to liberty. It may not only be made to serve the purpose of defeating reform, but may even accomplish the overthrow of popular rights which the Constitution expressly guarantees. In proof of this statement we need but refer to the recent history of our Federal judiciary. The Sixth Amendment to the Constitution guarantees the right of trial by jury in all criminal prosecutions; but it is a matter of common knowledge that this time-honored safeguard against the tyranny and oppression of ruling classes has been overthrown by the Federal courts. With the ascendency of corporate wealth and influence, government by injunction has become an important feature of our system. The use made of the injunction in recent years in the conflicts between labor and capital has placed a large and important class of crimes beyond the pale of this constitutional provision. Moreover, this particular class of crimes is the one where denial of the right of trial by jury is most likely to result in oppression. Under this mode of procedure the court has virtually assumed the power to enact criminal legislation, and may punish as crimes acts which neither law nor public opinion condemns. It ensures conviction in many cases where the constitutional right of trial by jury would mean acquittal. It places a powerful weapon in the hands of organized wealth which it is not slow to use.[98]

This so-called _government by injunction_ is merely an outgrowth of the arbitrary power of judges to inflict punishment in cases of contempt. In this respect, as well as in the power to veto legislation, the authority of our courts may be regarded as a survival from monarchy. The right of judges to punish in a summary manner those whom they may hold to be in contempt of their authority has been defended by legal writers generally on the ground that it is the only way in which the necessary respect for judicial authority can be maintained. It is difficult, however, to see why this argument would not apply with equal force to the executive and legislative branches of the government; for there must be some means of enforcing obedience to every lawful authority, legislative, executive, or judicial. The progress toward responsible government has long since deprived the executive of the power to inflict arbitrary punishment, and the legislature, though still retaining in a limited degree the power to imprison for contempt of its authority, seldom uses and almost never abuses it. The question is not whether contempt of authority should be punished, but whether the officer whose authority has been disregarded should also act as judge and jury, should ascertain the guilt and fix the punishment of those whom he as complaining witness has accused of contempt of his authority. This procedure is utterly at variance with the idea of political responsibility, and survives only because the judicial branch of our government has thus far effectually resisted the inroads of democracy. That the exercise of this arbitrary and irresponsible power is necessary in a democratic community, to ensure proper respect for the courts, seems highly improbable. In fact, no course could be suggested which would be more likely in the end to bring them into disrepute.[99]

It is interesting to observe that while the Supreme Court of the United States has not hesitated to veto an act of Congress, "no treaty, or legislation based on, or enacted to carry out, any treaty stipulations has ever been declared void or unconstitutional by any court of competent jurisdiction; notwithstanding the fact that in many cases the matters affected, both as to the treaty and the legislation, are apparently beyond the domain of Congressional legislation, and in some instances of Federal jurisdiction."[100]

Why has the Federal Supreme Court freely exercised the power to annul acts of Congress and at the same time refrained from exercising a like control over treaties? The Constitution makes no distinction between laws and treaties in this respect. It provides that "the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority."[101] If this provision is to be interpreted as conferring on the Federal courts the power to declare acts of Congress null and void, it also confers the same power in relation to treaties. Moreover, the Supreme Court has claimed, and has been conceded, the right to act as the guardian of the Constitution. The authority thus assumed by the Federal judiciary can be justified, if at all, only on the theory that the Constitution limits all governmental powers, and that it is the duty of the Supreme Court to enforce the limitations thus imposed by declaring null and void any unconstitutional exercise of governmental authority.

Not only in the Constitution itself was no distinction made between laws and treaties in relation to the power of the judiciary, but the same is true of the Judiciary Act of September 24, 1789, which provided that where the highest court in a state in which a decision in the suit could be had decides against the validity of "a treaty or statute of, or an authority exercised under, the United States," such judgment or decree "may be re-examined, and reversed or affirmed in the Supreme Court [of the United States] on a writ of error." The right of the Federal Supreme Court to declare both laws and treaties null and void was thus clearly and unequivocally recognized in this act. The object here, however, was not to establish judicial control over treaties, but to deprive the state courts of all authority over them.

The failure of the Supreme Court to exercise the right to annul treaties is to be explained in part by the fact that the judicial veto was intended primarily as a check on democracy. From the point of view of the conservatives who framed the Constitution it was a device for protecting the classes which they represented against democratic "excesses" in both the state and Federal government. It was expected that this tendency would be manifested mainly in the legislation of the various states and possibly in some slight degree in Congressional legislation, since the President and Senate would occasionally find it expedient to yield too largely to the demands of the directly elected House. But in the case of treaties made by the President and Senate, both safely removed, as they thought, beyond the reach of popular influence, there was no obvious need of a conservative check. In developing the policy of the Federal courts in pursuance of the purpose of those who framed the Constitution, it was perfectly natural that the judicial veto should not have been used to limit the treaty-making power.

But even if the Federal courts had felt inclined to extend their authority in this direction, the Constitution did not as in the case of Congressional legislation confer upon them the means of self-protection. In declaring null and void an act of Congress which did not have the support of at least two-thirds of the Senate, the Supreme Court is exercising a power which, if not expressly conferred upon it by the Constitution, it can at any rate exercise with impunity, since the majority in the Senate which it thus overrides is not large enough to convict in case of impeachment. All treaties must have the approval of two-thirds of the Senate; and since the majority in this body required to ratify a treaty is the same as that required to convict in impeachment proceedings, it is readily seen that the Senate has the constitutional power to prevent judicial annulment of treaties. Two-thirds of the Senate could not overcome judicial opposition, however, unless supported by at least a majority in the House of Representatives. But inasmuch as the Supreme Court is pre-eminently the representative of conservatism and vested interests, it is likely to disapprove of the policy of the Senate only when that body yields to the demands of the people. In all such cases the House would naturally support the Senate as against the Supreme Court. It is not surprising, then, that the Federal courts have not attempted to limit the treaty-making power.

Before leaving the subject of the Federal courts one feature of the judicial negative deserves further notice. The fact that it is not exercised until a case involving the law in question is brought before the court in the ordinary course of litigation is often referred to by constitutional writers as one of its chief merits. And yet until a competent court has actually declared a legislative act null and void, it is for all practical purposes the law of the land and must be recognized as such. It may vitally affect industry and commerce and require an elaborate readjustment of business relations. It may even be years after such an act is passed before a decision is obtained from the court of last resort. And if the decision annuls the law, it does so not from the time that the judgment of the court is rendered, but from the time the act in question was originally passed. This retroactive character of the judicial veto is strongly suggestive of the _ex post facto_ legislation which the Constitution expressly forbids. By thus invalidating the law from the beginning it may leave a vast body of business contracts without legal protection or support. As a consequence, it is impossible for any one, be he ever so well informed, to know just what legislative acts are valid and what are not. The amount of uncertainty which this introduces into business relations is more easily imagined than described.

America can claim the rather questionable distinction of being the only important country in which we find this uncertainty as to the law, since it is the only one in which the courts have a negative on the acts of the legislature. That we have ourselves realized the disadvantages of the system is shown by the changes made in the constitutions of several states with a view of diminishing the frequency of the judicial veto. These provisions make it the duty of the judges of the supreme court of the state to give their opinion upon questions of law when required by the governor or other branch of the law-making authority.[102]

In so far as constitutional provisions of this sort have been intended to prevent the evils resulting from a deferred exercise of the judicial veto, they have largely failed to accomplish their purpose. This has been due to the attitude of the courts, which have held that an opinion thus given in compliance with a constitutional requirement is not binding upon them when the question is raised again in the ordinary way in the trial of a case.