Chapter V: The Federal Judiciary (1)

No part of our Constitution has received less adverse criticism than that which relates to the powers and tenure of the judiciary. Constitutional writers have almost without exception given it their unqualified approval, claiming that its wisdom is established beyond question by the political experience of the English-speaking race. To express a doubt as to the soundness of this view is to take issue with what appears to be the settled and mature judgment of the American people.

Moreover, the authority of the courts is "the most vital part of our government, the part on which the whole system hinges."[52] This is true for the reason that the Federal judiciary is not only the most important of our constitutional checks on the people, but is also the means of preserving and enforcing all the other checks. To enable the Federal judges to exercise these important and far-reaching powers, it was necessary to make them independent by giving them a life tenure. This provision was in perfect harmony with the general plan and purpose of the Constitution, a document framed, as we have seen, with a view to placing effectual checks on the power of the majority. As a means to the end which the framers of the Constitution had in view, the independence of the judiciary was an admirable arrangement.

Hamilton says: "Upon the whole, there can be no room to doubt that the Convention acted wisely in copying from the models of those constitutions which have established _good behavior_ as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution."[53]

This is quoted with approval by Story in his Commentaries on the Constitution and this same line of argument has been followed by legal and political writers generally. But with all due respect for the eminent authorities who have placed so much stress on the political experience of other countries, we may venture to ask if the parallel which they have assumed really exists. Is the use made of this argument from analogy warranted by the facts in the case? Are we sure that the political experience of England proves the wisdom of an independent judiciary? This can best be answered by referring to the circumstances which gave rise to the doctrine that the judges should be independent.

In England formerly the Crown appointed the judges and could remove them. This power of appointment and removal placed the courts under the control of the King and made it possible for him to use them as a means of oppressing the people. A striking example of the way in which this power could be abused was seen in the career of the notorious Jeffreys, the pliant judicial tool of the cruel and tyrannical James II. To guard against a repetition of this experience it was urged that the judges be made independent of the King.

This was done in 1701 by the Act of Settlement which provided that judges should be removed only on an address from Parliament to the Crown. This deprived the King of the power to remove judges on his own initiative and virtually gave it to Parliament. The object of this provision was to place a check in the interest of the people upon the arbitrary power of the Crown. It made the judges independent of the King, but at the same time established their responsibility to Parliament by giving the latter the right to demand their removal.[54]

The statement so often made and so generally believed that the American judicial system was modeled after that of Great Britain will not bear investigation. English judges are not and never have been independent in the sense in which that word is used with reference to the Federal judiciary of the United States. In making the judges independent of the King, Parliament had no intention of leaving them free to exercise irresponsible powers. To have made them really independent would have been to create a new political power of essentially the same character and no less dangerous than the power of the King which they were seeking to circumscribe.

"In England," says Jefferson, "where judges were named and removable at the will of an hereditary executive, from which branch most misrule was feared, and has flowed, it was a great point gained, by fixing them for life, to make them independent of that executive. But in a government founded on the public will, this principle operates in an opposite direction, and against that will. There, too, they were still removable on a concurrence of the executive and legislative branches. But we have made them independent of the nation itself."[55]

There is, as a matter of fact, nothing in the political experience of Great Britain to support the belief in an independent judiciary. The judges there do not constitute a co-ordinate branch of the government and can not enforce their opinion in opposition to that of Parliament. Instead of being independent, they are strictly dependent upon Parliament whose supreme power and authority they are compelled to respect.

This being the case, it is hardly necessary to observe that the courts in England do not exercise legislative functions. The power to decide upon the wisdom or expediency of legislation is vested exclusively in Parliament. The courts can not disregard a statute on the ground that it is in conflict with the Constitution, but must enforce whatever Parliament declares to be the law. As the judiciary under the English system has no voice in the general policy of the state, the tenure of judges during good behavior carries with it no power to thwart the popular will.

The provision in the Constitution of the United States for the life tenure of a non-elective judiciary serves, however, an altogether different purpose. It was designed as a check, not upon an irresponsible executive as was the case in England, but upon the people themselves. Its aim was not to increase, but to diminish popular control over the government. Hence, though professing to follow the English model, the framers of the Constitution as a matter of fact rejected it. They not only gave the Federal judges a life tenure, but made that tenure unqualified and absolute, the power which Parliament had to demand the removal of judges being carefully witheld from the American Congress. This reversed the relation which existed between the legislative and judicial branches of government under the English system and raised the judiciary from a dependent and subordinate position to one that made it in many respects supreme. The most important attribute of sovereignty, that of interpreting the Constitution for the purposes of law-making, which belonged to Parliament as a matter of course, was withheld from Congress and conferred upon the Federal judiciary. Not only, then, did the framers of the Constitution depart from the English model in making the Federal judiciary independent of Congress, but they went much farther than this and conferred upon the body whose independence and irresponsibility were thus secured, powers which under the English system were regarded as the exclusive prerogative of a responsible Parliament. This made our Supreme judges, though indirectly appointed, holding office for life and therefore independent of the people, the final interpreters of the Constitution, with power to enforce their interpretation by declaring legislation null and void. A more powerful check upon democratic innovation it would be hard to devise.

The main reason for making the Federal judges independent and politically irresponsible has not been generally recognized. Thus, in a recent work Professor Channing, while expressing some disapproval of this feature of our system, fails to offer a satisfactory explanation of its origin. "Perhaps nothing in the Constitution of the United States is more extraordinary," he tells us, "than the failure of that instrument to provide any means for getting rid of the judges of the Federal courts except by the process of impeachment. In England, in Massachusetts and in Pennsylvania, judges could be removed by the executive upon address by both branches of the legislative body.[56] In none of these cases was it necessary to allege or to prove any criminal act on the part of the judge. In colonial days the tenure of the judicial office had been of the weakest. In the royal provinces, the judges had been appointed by the Crown and had been removable at pleasure. In the charter colonies, the judges had been appointed by the legislature, and their tenure of office was generally for one year. The precariousness of the judicial office in the royal provinces had more than once led to attempts on the part of the colonists to secure greater permanency, because a permanent judiciary would afford them protection against the royal authorities. All attempts of this kind, however, had been defeated by the negative voice of the government of England. Possibly the permanence of judicial tenure which is found in the Constitution of the United States may be regarded in some sort as the result of this pre-revolutionary contest."[57]

As a matter of fact, however, there is nothing extraordinary or difficult to explain in this permanency of judicial tenure which the Constitution established. It was not in the charter colonies where annual legislative appointment of judges was the rule, but in the royal provinces that efforts were made by the people to secure greater permanency of judicial tenure. They wished to give the judges more independence in the latter, because it would be the means of placing a check upon irresponsible authority, but were satisfied with a short term of office for judges in the colonies where they were elected and controlled by the legislature. Any explanation of the permanent tenure of our Federal judges "as the result of this pre-revolutionary contest" is insufficient. It was clearly a device consciously adopted by the framers of the Constitution, not for the purpose of limiting irresponsible authority, but for the purpose of setting up an authority that would be in large measure politically irresponsible.

Conservative writers while giving unstinted praise to this feature of the Constitution have not explained its real significance. They have assumed, and expect us to take it for granted, that the Federal judiciary was designed as a means of making the will of the people supreme; that its independence and exalted prerogatives were necessary to enable it to protect the people against usurpation and oppression at the hands of the legislative branch of the government.

Hamilton tells us, "The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy, it is an excellent barrier to the despotism of the prince; in a republic, it is a no less excellent barrier to the encroachments and oppressions of the representative body....

"The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution, I understand one which contains certain specified exceptions to the legislative authority.... Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void....[58]

"Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void....

"There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men, acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this can not be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their _will_ to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents....

"This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humours which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the mean time, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."[59]

This argument for an independent judiciary, which has been adopted by all writers who have attempted to defend the system, may be summarized as follows:

The Constitution being the solemn and deliberate expression of the will of the people, is the supreme law of the land. As such it enumerates the powers of the several branches of the government and sets limits to their authority. Any act, therefore, on the part of the agents or representatives of the people, which exceeds the authority thus delegated, is in violation of the fundamental law and can not bind those whom they profess to represent.

These checks upon the agents and representatives of the people can not be enforced, however, if each branch of the government is to be permitted to determine for itself what powers the Constitution has conferred upon it. Under such a system Congress would overstep the limits which have been placed upon its authority and substitute its own will for the will of the people. To prevent this the framers of the Constitution placed the courts, in their scheme of government, between the people and the legislature and gave them power to determine and enforce the constitutional limitations on the authority of Congress. This put the Constitution and the rights and liberties of the people under the protection of their natural guardian, the Federal judiciary, and thereby secured the people against the danger of legislative tyranny.

We must not forget the circumstances under which Hamilton wrote this defence of the Federal judiciary. Although the Constitutional Convention had spared no pains to prevent the publication of its proceedings, the feeling was more or less general that the whole movement was a conspiracy against popular government.

"The charge of a conspiracy against the liberties of the people," said Hamilton, "which has been indiscriminately brought against the advocates of the plan [the Constitution], has something in it too wanton and too malignant not to excite the indignation of every man who feels in his own bosom a refutation of the calumny. The perpetual changes which have been rung upon the wealthy, the well-born, and the great, have been such as to inspire the disgust of all sensible men. And the unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye have been of a nature to demand the reprobation of all honest men."[60]

The evidence now accessible to students of the American Constitution proves that the charges of "concealments and misrepresentations" made with this show of righteous indignation against the opponents of the Constitution might have justly been made against Hamilton himself. But knowing that the views expressed in the Federal Convention were not public property, he could safely give to the press this "refutation of the calumny."

The publication of the debates on the Constitution at that time would have shown that the apprehensions of the people were not entirely without justification. The advocates of the new form of government did not propose to defeat their own plans by declaring their real purpose--by explaining the Constitution to the people as they themselves understood it. For it was not to be supposed that the people would permit the adoption of a form of government the avowed object of which was to limit their power. Therefore the conservatives who framed the Constitution and urged its ratification posed as the friends of democracy. Professing to act in the name of, and as the representatives of the people, they urged them to accept the Constitution as a means of restraining their agents and representatives and thereby making their own will supreme. It was not the aim of these articles, written, as they were, to influence public opinion, to explain the real purpose of the Constitution, but rather to disguise its true character.

In this species of political sophistry Hamilton was a master. It is, to say the least, strange that the misstatement of historical facts, false analogies and juggling of popular catch-words which constitute his defence of the Federal judiciary should have been so often referred to as an example of faultless logic and a complete vindication of the system. Hamilton's interpretation of the Constitution as contained in these articles was merely for popular consumption, and not a frank and unequivocal expression of what he himself really believed. He was an uncompromising opponent of democracy and considered the English government of that day, with its hereditary monarchy and aristocracy, the best form of government ever devised.[61]

He favored therefore as near an approach to the English system as the circumstances of the case would permit. According to the plan which he submitted to the Convention the executive branch of the government was to be placed beyond the reach of public opinion by a method of appointment designed to guard against the choice of a popular favorite and by life tenure. Not only did he wish to make the President independent of the people, but he proposed to give him an absolute veto on all acts of Congress. Moreover, the President was to appoint the governors of the various states, and these, like the royal governors before the Revolution, were to have an absolute veto on the acts of the state legislatures.[62] This would have made the President a monarch in all but name, and though independent of the people, have given him power to thwart legislation which no majority in Congress, however great, could override.

But this did not go far enough in the direction of providing checks on popular legislation to suit Hamilton. The members of the upper house of Congress were, like the President, to be indirectly elected and to hold office for life. And finally over and above Congress was to be placed a Supreme Court whose members, by their mode of appointment and life tenure, were to be independent of the people. This body, which was to be the final interpreter of the Constitution, was designed as an additional safeguard against democratic legislation. The lower house of Congress was the only branch of the government in which any provision was made, under Hamilton's plan, for the representation of public opinion. Through the House of Representatives the people were to have an opportunity to propose legislation, but no power to enact it, or to control the general policy of the government.

The refusal of the Convention to endorse the scheme of government proposed by Hamilton must not be understood as implying lack of sympathy with the political views which it embodied. With his main purpose, that of effectually curbing the power of the majority, nearly all the members of that body were in full accord. They were, however, shrewd experienced men of affairs who understood the temper of the people and knew that their plan of political reorganization could be carried through only by disguising its reactionary character and representing it as a democratic movement. To have submitted the Constitution in the form in which it was proposed by Hamilton would have defeated their purpose. It was too obviously undemocratic, inasmuch as it provided for a strong centralized government only one branch of which was to be elected by the people, while the other three were to be placed beyond the reach of public opinion through indirect election and life tenure. The Constitution as framed and submitted was more democratic in appearance, though it really contained all that was essential in Hamilton's plan. Life tenure for the President and Senate was discarded, it is true, but indirect election was expected to ensure their independence. The absolute veto on Federal and state legislation which Hamilton proposed to give to a permanent executive was the most serious practical objection to his scheme, since it showed too clearly the purpose of the Convention to make the aristocratic element supreme not only in the general government but in the states as well. In form and appearance the Constitution merely gave the President a qualified negative on the acts of Congress; but in reality the Convention went much farther than this and conferred the absolute veto on federal and state legislation contended for by Hamilton. The power was merely transferred from the President in whose hands he had proposed to place it, and given to the Supreme Court. The end which he had in view was thus attained without arousing the opposition which would have been inevitable had there been anything in the Constitution to indicate that such a power was intended to be conferred.

These facts disclose the true motive for Hamilton's untiring efforts in behalf of the Constitution. He desired its adoption, not because he believed that it would make the will of the people supreme, as his above quoted references to _principal_ and _agent_ and _master_ and _servant_ would seem to imply, but for the opposite reason that it would make the government largely independent of public opinion. As a matter of fact, Hamilton had no use whatever for a political system which assumed that the people were a _master_ or _principal_ and the government merely their _servant_ or _agent_. The chief merit of the Constitution from his point of view was not its acceptance, but its repudiation of this principle. Had it been framed on the theory that the will of the people is the supreme law of the land, no one would have been more bitterly opposed to its adoption than Hamilton himself. That he gave it his unqualified support is the best evidence that he did not believe that it would make the will of the people supreme.

No intelligent man who carefully reads Hamilton's argument in defence of the Federal judiciary could be misled as to his real views. His dread of democracy is clearly seen in his desire to exalt the Supreme Court and subordinate Congress, the only branch of the government in which the people were directly represented. His seeming anxiety lest the legislative body should disregard the will of the people was a mere demagogic attempt to conceal his real motive. Had this been what he really feared, the obvious remedy would have been the complete responsibility of Congress to the people. In fact, this was necessarily implied in the doctrine of principal and agent which he professed to accept, but which found no recognition either in the constitution which he himself had suggested, or in the one finally adopted. To this theory of government the system which he defended was in reality diametrically opposed. Under the guise of protecting the people against misrepresentation at the hands of Congress, it effectually limited the power of the people themselves by tying the hands of their responsible agents. It deprived the people of the power to compel the enactment of law by making the consent of the Supreme Court necessary to the enforcement of all legislation, federal and state. This was a substantial compliance with Hamilton's proposal to give an absolute veto to an independent and permanent executive. It was a matter of but little consequence whether this power was conferred on a single person, as the President, or on a body, as the Supreme Court, provided the manner of appointment and tenure of those in whose hands it was placed, were such as to ensure an independent exercise of the power thus conferred. The result would be the same in either case: the law-making power would be placed beyond the reach of popular control.

To allow the legislative body to be "the constitutional judges of their own power," Hamilton tells us, would be to affirm "that the servant is above his master." Hence it is necessary, he argues, to divest Congress of all authority to determine the extent of its own powers. To accomplish this the Supreme Court was made the constitutional judge of the powers of Congress and of its own powers as well. Hamilton's argument involves the assumption that, while it is dangerous to allow a frequently elected and responsible branch of the government to determine the extent of its own powers, it is at the same time eminently wise and proper to give, not only this power, but also the power to determine the authority of all other branches of government, to a permanent body whom the people neither elect nor control. His constant reference to the danger of legislative oppression was merely a mask for his hatred of popular government. He was anxious to curb the power of Congress because he feared that public opinion would too largely influence the proceedings of that body. On the other hand, he saw no danger of executive or judicial tyranny since these branches of the government were expected to be independent of public opinion. Hamilton's purpose was to limit the power of the people by subordinating that part of the government in which they were directly represented and strengthening those parts over which they had no direct control. His defence of the Constitution is thus really an argument against responsible government and a defence of the principles underlying monarchy and aristocracy.

As the English judiciary is really an offshoot from the executive, the power of the court to declare legislation null and void may be regarded as merely a phase of the executive veto. No evidence of this can be found, it is true, in the constitutional history of England during the eighteenth and nineteenth centuries. But if we go back to the period preceding the revolution of 1688, it seems to be clearly established that the English courts claimed, and in a few instances exercised, the power to annul acts of Parliament. As late as 1686, in the case of Godden v. Hales, "the Court of King's Bench actually held that important provisions of the statute of 25 Charles II, cap. 2, were void because conflicting with the King's rightful prerogative."[63] When we remember that the courts were then under the control of the King, it is not surprising that they should have attempted to exercise this power in defence of the royal prerogative. But with the Revolution of 1688, which established the supremacy of Parliament, the last trace of the judicial negative disappeared. From that time on the right of Parliament to be the constitutional judge of its own powers has not been seriously questioned. Even the veto power of the King soon became obsolete, though in theory it for a time survived.

Such was the constitutional status of the English judiciary when the American colonies asserted their independence. The new state constitutions adopted at the outbreak of the war, as has been shown in a previous chapter, represented the more democratic thought of the period and were really revolutionary in character. They abolished the veto power of the governor and failed to abolish the judicial negative only because it did not then exist.[64] This was followed after the Revolution by a conservative reaction which was not, however, a popular movement. It received no general support or sympathy from the masses of the people, but was planned and carried through by those whom we may describe as the ruling class, and who were, for the most part, strongly in sympathy with English political institutions. It was characterized by real, if not avowed, hostility to the new political ideas embodied in the Declaration of Independence and in the Revolutionary state constitutions. Its aim was to reform the state governments by restoring, as far as possible, the checks on democracy which the Revolutionary movement had swept away.

The judiciary was the only branch of the state government in which the principle of life tenure had been retained, and therefore the only one which could be depended on to offer any effectual resistance to public opinion. Evidently, then, the easiest and most practicable method of accomplishing the end which the conservative classes had in view was to enlarge the powers of the judiciary. Accordingly an effort was made at this time in several of the states to revive and develop the judicial veto. A practical argument in favor of this check was doubtless the fact that it required no formal changes in the state constitutions, and, for this reason, was less likely to arouse formidable opposition than any avowed attempt to restore the system of checks.

When the Constitutional Convention met in 1787 the courts in five states were beginning to claim the power to declare acts of the legislature unconstitutional. In a Virginia case as early as 1782 the judges of the court of appeals expressed the opinion "that the court had power to declare any resolution or act of the legislature, or of either branch of it, to be unconstitutional and void."[65] The court, however, did not exercise the power to which it laid claim. It merely declared a resolution of the House of Delegates invalid on the ground that it had been rejected by the Senate. This case is important only as showing that the court was then paving the way for the exercise of the power to annul acts of the legislature.

The case of Trevett v. Weeden, decided by the Superior Court of Judicature of Rhode Island in September, 1786, is said to be the first in which a law was declared null and void on the ground that it was unconstitutional.[66] The court in this case did not expressly say that the law in question was unconstitutional and therefore void, but it refused to recognize its validity. The power which the court exercised to ignore a legislative act was promptly repudiated by the law-making body, and at the expiration of their term of office a few months later, the judges responsible for this decision were replaced by others. In 1786 or 1787 a case was decided in Massachusetts, and also one in New Jersey, in which it is claimed that the court declared a legislative act null and void.

The first reported case in which an act of a legislature was held to be contrary to a _written_ constitution is that of Bayard v. Singleton, decided by the Superior Court of North Carolina in May, 1787. James Iredell, afterward a member of the North Carolina convention, held to ratify the Constitution, and a judge of the United States Supreme Court, and William R. Davie, one of the framers of the Constitution, were attorneys for the plaintiff, the party in whose interest the law was declared unconstitutional. This decision received much adverse criticism at the time. The judges "were fiercely denounced as usurpers of power. Spaight, afterwards governor, voiced a common notion when he declared that 'the state was subject to the three individuals, who united in their own persons the legislative and judicial power, which no monarch in England enjoys, which would be more despotic than the Roman triumvirate and equally insufferable.'"[67]

Iredell, in a letter to Spaight written August 26, 1787, defended the decision as a means of limiting the power of the majority. "I conceive the remedy of a new election," he says, "to be of very little consequence, because this would only secure the views of a majority...."[68] Iredell expressed what was no doubt the real purpose of the judicial veto--the limitation of the power of the majority.

In eight of the thirteen states the doctrine that the judiciary could refuse to enforce laws regularly enacted by the legislative body had not even been asserted by the courts themselves, much less recognized and accepted by the people generally. There is no evidence to warrant the belief that this power was anywhere claimed or exercised in response to a popular demand or that it had at this time become a firmly established or generally recognized feature of any state government.

This being the case, there is no ground for the contention that the power to annul acts of the legislature was necessarily implied in the general grant of judicial authority contained in the Constitution. Moreover, it was not expressly conferred, for the Constitution as submitted and ratified contains no reference to this power.

"There is no provision in the Constitution of the United States ... which clothes the judiciary with the power to declare an act of the legislature generally null and void on account of its conceived repugnance to the Constitution or on any other account."[69]

It has been claimed that in this respect our general government is even less democratic than the framers of the Constitution intended. This view, however, is not borne out by the facts. The assertion of this far-reaching power by our national judiciary, though not expressly authorized by the Constitution, was nevertheless in harmony with the general spirit and intention of its framers. That the members of the Constitutional Convention declined to confer this power in unequivocal language does not justify the inference that they did not wish and intend that it should be exercised by the courts.

Gouverneur Morris, who claims to have written the Constitution with his own hand, tells us that in framing that part of it relating to the judiciary, "it became necessary to select phrases," which, expressing his own views, "would not alarm others."[70] There was, it is true, some objection in the Convention to the doctrine that the Supreme Court should have authority to decide upon the constitutionality of Congressional legislation. Mercer and Dickinson believed that this power should not be exercised by the judiciary.[71] But it was contended on the other hand by Wilson, Luther Martin, Gerry, Mason, and Madison that this power could be exercised without any provision expressly conferring it.[72]

In view of the fact that it was maintained by leading members of the Convention that this power could and should be exercised by the Federal judiciary, it is but reasonable to suppose that a majority of that body wished to confer it; for had this not been the case, the Constitution as submitted would have contained a provision expressly withholding it. But however much the Convention may have desired to give to the judiciary the power to veto legislation, it could not have been done by an express provision of the Constitution. Any such attempt would have disclosed altogether too clearly the undemocratic reactionary character of the proposed government and thus have prevented its adoption. This end was attained indirectly through the general system of checks which the Constitution imposed upon the other branches of the government and upon the people, since it made it possible for the judiciary to assume and exercise this power.

There is nothing to indicate that the people generally appreciated the significance of this feature of the Constitution at the time of its ratification. Outside of the Constitutional Convention the judicial negative appears to have been seldom mentioned. Hamilton, the most courageous and outspoken opponent of popular government, claimed, it is true, that it would be the duty of the Federal courts "to declare all acts contrary to the manifest tenor of the Constitution void."[73] In a few of the state conventions held to ratify the Constitution the power was referred to. Oliver Ellsworth in the Connecticut convention,[74] James Wilson in the Pennsylvania convention,[75] and John Marshall in the Virginia convention,[76] expressed the opinion that the Constitution gave the Supreme Court the power to declare acts of Congress null and void.

There is no reason for believing, however, that this was the generally accepted notion at that time. For even Marshall himself a few years later, as attorney in the case of Ware v. Hylton, which involved the validity of an act of the legislature of Virginia, appears to have defended the opposite view before the United States Supreme Court. In that case he said:

"The legislative authority of any country can only be restrained by its own municipal constitution: this is a principle that springs from the very nature of society; and the judicial authority can have no right to question the validity of a law, unless such a jurisdiction is expressly given by the Constitution."[77] The mere fact that he presented this argument shows that the view which he afterwards held as Chief Justice of the United States Supreme Court was not then generally accepted. His contention on this occasion that the judiciary can not annul an act of the legislature unless the power be expressly conferred may have been at variance with the opinion which he really held, but it certainly was not opposed to what he regarded as the generally accepted view; otherwise, his argument would have been based on an admittedly false theory of judicial powers. The conclusion is irresistible that at this time the right of the judiciary to declare a legislative act null and void was not generally recognized. The framers of the Constitution clearly understood that this power was not implied in the sense that it was then a recognized function of the judiciary, or one necessarily contained in the Constitution as they interpreted it to the people to secure its adoption. It was by controlling the Executive and the Senate, and through these the appointment of Supreme judges, that they expected to incorporate this power in the Constitution and make it a permanent feature of our political system.[78]

This purpose is evident in the appointments to the Supreme bench made during the twelve years of Federalist rule that followed the adoption of the Constitution. Of the thirteen chief and associate Justices appointed during this period, five had been members of the Constitutional Convention.[79] Eleven had been members of the various state conventions held to ratify the Constitution.[80] Three, as shown by the records of the federal and state conventions, had unequivocally expressed themselves in favor of the exercise of this power by the Supreme Court,[81] while another, James Iredell, had taken an active part in securing the first reported decision in which an act of a state legislature was declared null and void by a court on the ground that it was contrary to a written constitution.[82] Only one in this entire list had not taken part directly in framing or adopting the Constitution by serving as a delegate to the federal, or a state convention, or both.[83] All had been ardent supporters of the Constitution and were in full sympathy with its main purpose.

It is true that Washington in the winter of 1795-6 offered the Chief Justiceship of the United States Supreme Court to Patrick Henry, who had been the ablest and most conspicuous opponent of the Constitution in the Virginia convention. Henry had, however, as Presidential elector voted for Washington for President in 1789 and had in the meantime become reconciled to the Constitution. Moreover, while he had been opposed to many features of the Constitution, he was from the first in full sympathy with the judicial veto. He thought the Constitution was defective in that it contained no assurance that such a power would be exercised by the courts. In his argument against the ratification of the Constitution in the Virginia convention he said:

"The honorable gentleman did our judiciary honor in saying that they had firmness to counteract the legislature in some cases. Yes, sir, our judges opposed the acts of the legislature. We have this landmark to guide us. They had fortitude to declare that they were the judiciary, and would oppose unconstitutional acts. Are you sure that your Federal judiciary will act thus? Is that judiciary as well constructed, and as independent of the other branches, as our state judiciary? Where are your landmarks in this government? I will be bold to say that you can not find any in it. I take it as the highest encomium on this country, that the acts of the legislature, if unconstitutional, are liable to be opposed by the judiciary."[84]

The fact that only those who were in sympathy with the Constitution were recognized in these appointments becomes the more significant when we remember that several of the leading states ratified it by very slender majorities. In New York, Massachusetts, and Virginia the supporters of the Constitution barely carried the day; yet they alone were recognized in the five appointments to the Supreme bench from these states made during the period above mentioned. The opponents of the Constitution represented, moreover, not only in these states, but in the country at large, a majority of the people. Nevertheless, true to the purpose of those who founded our Federal government, the popular majority was entirely ignored and the Supreme Court so constituted as to make it represent the minority. Through these appointments the Federalists secured an interpretation of the Constitution in harmony with their political theories and thereby established the supremacy of the judiciary in our scheme of government. The subsequent success of the Supreme Court in asserting and enforcing its right to annul acts of Congress completed the establishment in this country of a form of government which Professor Burgess correctly describes as an "aristocracy of the robe."[85]

The full significance of this annulling power is not generally understood. The Supreme Court claims the right to exercise it only as the guardian of the Constitution. It must be observed, however, that while professing to be controlled by the Constitution, the Supreme Court does, as a matter of fact, control it, since the exclusive right to interpret necessarily involves the power to change its substance. This virtually gives to the aristocratic branch of our government the power to amend the Constitution, though this power is, as we have seen, practically denied to the people.

We have become so accustomed to the exercise of this power by the courts that we are in the habit of regarding it as a natural and necessary function of the judiciary. That this is an erroneous view of the matter is shown by the fact that this power "is scarcely dreamed of anywhere else."[86] In other countries the power is unknown whether the Constitution be unwritten as in England or written as in France, Germany, and Switzerland. Nor does it make any difference whether the government be national in character as in England and France, or federal as in Germany, Switzerland, and Australia. In no other important country are the courts allowed to veto the acts of the legislative body. The exercise of this power can be justified here only on the ground that it is indispensable as a means of preserving and perpetuating the undemocratic character of the Constitution.

"This power [the Supreme Court] has the last word in the numberless questions which come under its jurisdiction. The sovereign people after a time conquers the other powers, but this Supreme Court almost always remains beyond its reach. For more than twenty or even thirty years, twice the _grande mortalis aevi spatium_, it may misuse its authority with impunity, may practically invalidate a law voted by all the other powers, or a policy unanimously accepted by public opinion. It may nullify a regular diplomatic treaty[87] ... by refusing to enforce it by judicial sanction, or may lay hands on matters belonging to the sovereignty of the states and federalize them without one's being able to make any effective opposition, for this Court itself determines its own jurisdiction as against the state tribunals. It is one of Blackstone's maxims that in every constitution a power exists which controls without being controlled, and whose decisions are supreme. This power is represented in the United States by a small oligarchy of nine irremovable judges. I do not know of any more striking political paradox than this supremacy of a non-elected power in a democracy reputed to be of the extreme type. It is a power which is only renewed from generation to generation in the midst of a peculiarly unstable and constantly changing state of things--a power which in strictness could, by virtue of an authority now out of date, perpetuate the prejudices of a past age, and actually defy the changed spirit of the nation even in political matters."[88]

It is a fundamental principle of free government that all legislative power should be under the direct control of the people. To make this control effective all laws must be enacted by the people themselves, or they must at least have what practically amounts to the power of appointing and removing their representatives. Democracy implies not merely the right of the people to defeat such laws as they do not want, but the power to compel such legislation as they need. The former power they possess in any country in which they control one coordinate branch of the legislature, even though the government be a monarchy or aristocracy. This negative power of defeating adverse legislation is merely the first step in the evolution of free government, and is possessed by the people in all countries which have made much constitutional progress. There is a vast difference, however, between a system under which the people constitute a mere check upon the government and one which gives them an active control over legislation. It is the difference between a limited monarchy or aristocracy on the one hand and a government by the people themselves on the other.[89]

If this test be applied to the government of the United States we see that it lacks the essential feature of a democracy, inasmuch as laws can not be enacted without the consent of a body over which the people have practically no control. In one respect at least the American system is even less democratic than was the English government of the eighteenth century. The House of Commons was a coordinate branch of the legislature and as such had a recognized right to interpret the Constitution. No political program, no theory of state functions, could receive legislative sanction without its approval. The House of Commons could enforce its interpretation of the Constitution negatively since it had an absolute veto on all legislation. On the other hand its own views and policies could become law only in so far as they were acquiesced in by the other branches of the law-making authority. Under this system the accepted interpretation of the Constitution was a compromise, one to which each branch of the legislature assented. Each of these coordinate branches of the government was equally the guardian and protector of the Constitution, since it had the right to interpret, and the power to enforce its interpretation, of the legislative authority of the other branches by an absolute veto on their interpretation of their own powers.

This authority to act as final interpreter of the Constitution which under the English system was distributed among King, Lords, and Commons, was under the American scheme of government taken out of the hands of Congress and vested in the judiciary alone. There are certain matters of minor importance, however, concerning which the interpretation placed upon the Constitution by other branches of the government is final. But in interpreting the Constitution for the purpose of legislating, the final authority is in the hands of the Federal Supreme Court. It is the exclusive possession of this most important prerogative of a sovereign legislative body which makes our Supreme Court the most august and powerful tribunal in the world. Through the sole right to exercise this power our Federal judiciary has become in reality the controlling branch of our government. For while it has an absolute veto on the acts of Congress, its own exercise of the highest of all legislative authority--that of interpreting the Constitution and the laws of the land--is unlimited and uncontrolled. It is not surprising, then, that the Constitution as it exists to-day is largely the work of the Supreme Court. It has been molded and developed by, and largely owes its spirit and character to the interpretation which that body has placed upon it.

Our Supreme Court thus has what virtually amounts to the power to enact as well as the power to annul. Congress can legislate only with the consent of the Federal judiciary; but the latter, through its control over the interpretation of the Constitution may in effect legislate without the consent of the other branches of the government, and even in opposition to them. Under the guise of an independent judiciary we have in reality an independent legislature, or rather an independent legislative and judicial body combined. This union of sovereign legislative authority and ordinary judicial functions in the same independent body is a significant and dangerous innovation in government. It has not only deprived the people of the power to make the interpretation of the Constitution and the trend of legislation conform to the public sentiment of the times; it has even taken from them all effectual power to prevent changes which they do not want, but which the judiciary in the exercise of its exclusive right to act as the guardian and interpreter of the Constitution may see fit to make. Under our system, then, the people do not have even the negative power of absolute veto which they possess wherever they control a coordinate branch of the legislature.

In so far as the exercise of legislative power is controlled by the Supreme Court our government is essentially aristocratic in character. It represents the aristocratic principle, however, in its least obtrusive form. But while avoiding the appearance, it provides the substance of aristocratic control.

It is easy to see in the exaltation of the Federal judiciary a survival of the old mediaeval doctrine that the king can do no wrong. In fact, much the same attitude of mind which made monarchy possible may be seen in this country in our attitude toward the Supreme Court. As long as the people reverenced the king his irresponsible power rested on a secure foundation. To destroy the popular belief in his superior wisdom and virtue was to destroy the basis of his authority. Hence all criticism of the king or his policy was regarded as an attack on the system itself and treated accordingly as a serious political crime.

The old view was well expressed by James I of England in a speech made in the Star Chamber on June 20, 1601, in which he said:

"That which concerns the mystery of the King's power is not lawful to be disputed; for that is to wade into the weakness of princes, and to take away the mystical reverence that belongs unto them that sit on the throne of God."[90]

We see this same fact illustrated also in the history of the church, for absolutism was not confined in the Middle Ages to the state alone. As the King was the recognized guardian of the established political order and its final interpreter, so the ecclesiastical hierarchy claimed the right to guard the faith and expound the creed of the people. Criticism and dissent, political and religious, were rigorously repressed. The people were required to accept the political and religious system imposed on them from above. Implicit faith in the superior wisdom of their temporal and spiritual rulers was made the greatest of all virtues. But with the growth of an intelligent skepticism throughout the western world, the power of king and priest has been largely overthrown.

Yet even in this country something akin to the old system of political control still survives in the ascendency of our Federal judiciary. The exclusive right claimed by this branch of the government to guard and interpret the Constitution is the same prerogative originally claimed by the king. The judiciary, too, is the branch of our government farthest removed from the influence of public opinion and consequently the one in which the monarchical principle most largely survives.