The Constitution of the United States of America: Analysis and Interpretation Part 2

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

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

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

III

A Government of Laws and Not of Men

The earliest repositories of executive power in this country were the provincial governors. Being the point of tangency and hence of irritation between imperial policy and colonial particularism, these officers incurred a widespread unpopularity that was easily generalized into distrust of their office. So when Jefferson a.s.serted in his _Summary View_, in 1774, that the King "is no more than the chief officer of the people, appointed by the laws and circ.u.mscribed with definite powers, to a.s.sist in working the great machine of government,"[35] he voiced a theory of executive power which, impudently as it flouted historical fact, had the support of the draftsmen of the first American const.i.tutions. In most of these instruments the governors were elected annually by the legislative a.s.semblies, were stripped of every prerogative of their predecessors in relation to legislation, and were forced to exercise the powers left them subject to the advice of a council chosen also by the a.s.sembly, and from its own members if it so desired. Finally, out of abundant caution the const.i.tution of Virginia decreed that executive powers were to be exercised "according to the laws of" the Commonwealth, and that no power or prerogative was ever to be claimed "by virtue of any law, statute or custom of England."

"Executive power", in short, was left entirely to legislative definition and was cut off from all resources of the common law and the precedents of English monarchy.

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

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

The opening clause of Article II of the Const.i.tution reads: "The executive power shall be vested in a President of the United States of America". The primary purpose of this clause, which made its appearance late in the Convention and was never separately pa.s.sed upon by it, was to settle the question whether the executive branch should be plural or single; a secondary purpose was to give the President a t.i.tle. There is no hint in the published records that the clause was supposed to add cubits to the succeeding clauses which recite the President's powers and duties in detail.

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

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

This time judicial endors.e.m.e.nt of the broad conception of the executive power came early. In laying the foundation in Marbury _v._ Madison for the Court's claim of power to pa.s.s on the const.i.tutionality of acts of Congress, Marshall said: "The government of the United States has been emphatically termed a government of laws and not of men".[41] Two pages along he added these words:

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

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

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

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

Also manifest is the debt of Lincoln's message of July 4, 1861, to these opinions. Here in so many words the President lays claim to "the war power", partly on the ground of his duty to "take care that the laws be faithfully executed", partly in reliance on his powers as Commander-in-Chief, incidentally furnis.h.i.+ng thereby a formula which has frequently reappeared in opinions of Attorneys-General in recent years.

Nor did Lincoln ever relinquish the belief that on the one ground or the other he possessed extraordinary resources of power which Congress lacked and the exercise of which it could not control--an idea in the conscientious pursuit of which his successor came to the verge of utter disaster.

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

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

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

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

It is timely therefore to inquire whether American Const.i.tutional Law today affords the Court a dependable weapon with which to combat effectively contemporary enlarged conceptions of presidential power.

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

IV

The Concept of Substantive Due Process of Law

A cursory examination of the pages of this volume reveals that fully a quarter of them deal with cases in which the Court has been asked to protect private interests of one kind or another against legislation, most generally state legislation, which is alleged to invade "liberty"

or "property" contrary to "due process of law". How is this vast proliferation of cases, and attendant expansion of the Court's const.i.tutional jurisdiction, to be explained? The explanation, in brief, is to be found in the replacement of the original meaning of the due process clause with a meaning of vastly greater scope. Judicial review is always a function, so to speak, of the viable Const.i.tutional Law of a particular period.

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

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

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

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

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

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

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

Meanwhile, in the previous year (1856) the recently established Court of Appeals of New York had, in the landmark case of Wynehamer _v._ People,[64] set aside a state-wide prohibition law as comprising, with regard to liquors in existence at the time of its going into effect, an act of destruction of property not within the power of government to perform "even by the forms of due process of law". The term due process of law, in short, simply drops out of the clause, which comes to read "no person shall be deprived of property", period. At the same time Judge Comstock's opinion in the case sharply repudiates all arguments against the statute sounding in Natural Law concepts, fundamental principles of liberty, common reason and natural rights, and so forth.

Such theories were subversive of the necessary powers of government.

Furthermore, there was "no process of reasoning by which it can be demonstrated that the 'Act for the Prevention of Intemperance, Pauperism and Crime' is void, upon principles and theories outside of the const.i.tution, which will not also, and by an easier induction, bring it in direct conflict with the const.i.tution itself."[65] Thus it was foreshadowed that the law of the land and the due process of law clauses, which were originally inserted in our const.i.tutions to consecrate a specific mode of trial in criminal cases, to wit, the grand jury, pet.i.t jury process of the common law, would be transformed into a general restraint upon substantive legislation capable of affecting property rights detrimentally.

It is against this background that the adoption of the Fourteenth Amendment in 1868 must be projected. Applied, as in the Dred Scott and Wynehamer cases, the clause which forbids any State "to deprive any person of life, liberty or property without due process of law"

proffered the Court, in implication, a vast new jurisdiction, but this the Court at first manifested the greatest reluctance to enter upon. It did not wish, it protested, to become "a perpetual censor upon all State legislation"; nor did it wish, by enlarged conceptions of the rights protected by the Amendment, to encourage Congress to take over, under the fifth section of the Amendment, the regulation of all civil rights.

"The federal equilibrium" had already been sufficiently disturbed by the results of the War between the States and Reconstruction.[66]

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

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

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

For more than a generation now the Court became the ultimate guardian, in the name of the Const.i.tutional Doc.u.ment, of the _laissez-faire_ conception of the proper relation of Government to Private Enterprise, a rather inconstant guardian, however, for its fluctuating members.h.i.+p tipped the scales now in favor of Business, now in favor of Government.

And today the latter tendency appears to have prevailed. In its decisions early in 1937 sustaining outstanding Roosevelt Administration measures, the Court not only subordinated the freedom of employers to contract to the freedom of employees to organize, but intimated broadly that liberty in some of its phases is much more dependent upon legislative implementation that upon judicial protection.[72]

In contrast to this withdrawal, however, has been the Court's projection of another segment of "liberty" into new territory. In Gitlow _v._ New York,[73] decided in 1925, even in sustaining an antisyndicalist statute, the Court adopted _arguendo_ the proposition which it had previously rejected, that "liberty" in Amendment XIV renders available against the States the restraints which Amendment I imposes on Congress.

For fifteen years little happened. Then in 1940, the Court supplemented its ruling in the Gitlow Case with the so-called "Clear and Present Danger" rule, an expedient which was designed to divest state enactments restrictive of freedom of speech, of press, of religion, and so forth, of their presumed validity, just as, earlier, statutes restrictive of freedom of contract had been similarly disabled. By certain of the Justices, this result was held to be required by "the preferred position" of some of these freedoms in the hierarchy of const.i.tutional values; an idea to which certain other Justices demurred. The result to date has been a series of holdings the net product of which for our Const.i.tutional Law is at this juncture difficult to estimate; and the recent decision in Dennis _v._ United States under Amendment I augments the difficulty.[74]

A pa.s.sing glance will suffice for the operation of the due process clause of Amendment V in the domain of foreign relations and the War Power. The reader has only to consult in these pages such holdings as those in Belmont _v._ United States, Yakus _v._ United States, Korematsu _v._ United States, to be persuaded that even the Const.i.tution is no exception to the maxim, _inter arma silent leges_.[75]

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

Resume

Considered for the two fundamental subjects of the powers of government and the liberties of individuals, interpretation of the Const.i.tution by the Supreme Court falls into four tolerably distinguishable periods. The first, which reaches to the death of Marshall, is the period of the dominance of the Const.i.tutional Doc.u.ment. The tradition concerning the original establishment of the Const.i.tution was still fresh, and in the person and office of the great Chief Justice the intentions of the framers enjoyed a renewed vitality. This is not to say that Marshall did not have views of his own to advance; nor is it to say that the historicity of a particular theory concerning the Const.i.tution is necessarily a matter of critical concern save to students of history. It is only to say that the theories which Marshall urged in support of his preferences were, in fact, frequently verifiable as theories of the framers of the Const.i.tution.

The second period is a lengthy one, stretching from the accession of Chief Justice Taney in 1835 to, say, 1895. It is the period _par excellence_ of Const.i.tutional Theory. More and more the const.i.tutional text fades into the background, and the testimony of the _Federalist_, Marshall's sole book of precedents, ceases to be cited. Among the theories which in one way or other received the Court's approval during this period were the notion of Dual Federalism, the doctrine of the Police Power, the taboo on delegation of legislative power, the derived doctrine of Due Process of Law, the conception of liberty as Freedom of Contract, and still others. The sources of some of these doctrines and the nature of the interests benefited by them have been indicated earlier in these pages. Their net result was to put the national law-making power into a strait-jacket so far as the regulation of business was concerned.