Part 5

In February of this year, Mr. Roosevelt delivered an address before the Ohio constitutional convention, in which he discussed the decision of the Supreme Court of the United States in the Employers' Liability cases,[16] decided while he was President. The court then held that the act of Congress of June 11, 1906, sometimes erroneously called the National Workmen's Compensation Act, attempted to regulate the internal affairs of the several states as well as interstate commerce, that it consequently included a subject not within the constitutional power of Congress, and that the two matters were so blended that they were incapable of separation unless the court made a new statute in the place of the one enacted by Congress. Conscientiously entertaining this view, the majority of the court would have been guilty of the plainest constitutional immorality if they had not declared that the act was beyond the power of Congress and declined to give it effect. No honest men, believing as the majority did, could have done otherwise than obey the constitutional mandate expressly reserving to the states the legislative powers not delegated to Congress. In the light of the long-established and wise rule that courts should avoid judicial legislation and not revise or give effect to a statute in a manner not clearly intended by the legislative body, the justices could not, of course, have upheld and enforced the statute simply because the individual cases before them excited their sympathy or involved the claims of widows. The remedy was obvious and simple. Congress was then in session, and within a few days an amended statute could have been enacted so as to limit the act to interstate commerce, which alone was within the constitutional power of Congress to regulate. After the lapse of three months, such a law was enacted, and being plainly confined to interstate commerce, as the original statute should have been, and would have been if properly and competently drafted, the amended act was unanimously sustained by the Supreme Court as constitutional in the Second Employers' Liability cases, decided this year,[17] when it was held that Congress had power to change the common law rules as to assumption of risk, contributory negligence and fellow-servants' acts in connection with the regulation of interstate commerce.

Speaking of the first decision, Mr. Roosevelt said: "When I was President, we passed a National Workmen's Compensation Act. Under it a railway man named Howard, I think, was killed in Tennessee, and his widow sued for damages. Congress had done all it could to provide the right, but the court stepped in and decreed that Congress had failed. Three of the judges took the extreme position that there was no way in which Congress could act to secure the helpless widow and children against suffering, and that the man's blood and the blood of all similar men when spilled should forever cry aloud in vain for justice. This seems a strong statement, but it is far less strong than the actual facts; and I have difficulty in making the statement with any degree of moderation. The nine justices of the Supreme Court on this question split into five fragments. One man, Justice Moody, in his opinion stated the case in its broadest way and demanded justice for Howard, on grounds that would have meant that in all similar cases thereafter justice and not injustice should be done. Yet the court, by a majority of one, decided as I do not for one moment believe the court would now decide, and not only perpetuated a lamentable injustice in the case of the man himself, but set a standard of injustice for all similar cases. Here again I ask you not to think of mere legal formalism, but to think of the great immutable principles of justice, the great immutable principles of right and wrong, and to ponder what it means to men dependent for their livelihood, and to the women and children dependent upon these men, when the courts of the land deny them the justice to which they are entitled."

Now, if this argument meant anything it certainly meant that, in the opinion of the speaker, an ex-President of the United States, the justices of the Supreme Court should have disregarded the Constitution as they understood it in order to allow a widow to recover notwithstanding the unconstitutionality of the act under and by virtue of which she was suing. You will not find a single word of reference by Mr. Roosevelt in his whole address to the only point upon which the majority, speaking by Mr. Justice White, decided the cases. Of course, the statement of what was actually decided would have been tame and unsensational. The criticism in form and substance was based upon a distorted and unfair statement of what was decided, and it was calculated to create in the minds of the members of the Ohio constitutional convention, as well as in the minds of the uninformed public, the belief that the justices of the Supreme Court of the United States had "set a standard of injustice for all similar cases" and had denied to Congress the power to pass a fair and just employers' liability statute properly limited to interstate commerce. The contrary was plainly the truth, as the subsequent decision of the court had clearly shown, for this latter decision was rendered and published before Mr. Roosevelt made his address.

Another example of distorted statement and unfair criticism of the courts will be found in the same address. It related to the decision of the New York Court of Appeals in the case of Ives _vs._ South Buffalo Railway Company,[18] decided last year, in which the court held that a statute concededly novel and revolutionary, creating liability on the part of an employer to his workmen although the employer and his agents were wholly free from negligence or fault of any kind and had neglected no duty of care, supervision or selection, was unconstitutional because taking the property of the employer and giving it to the workman without due process of law. Ives was a brakeman employed by the defendant railway company. While walking on the top of the cars of a very long train, he gave a signal to the engineer to close up a space or slack and was thrown to the ground by the resulting jar, concededly without any negligence on the part of the railway company, and probably through his own carelessness. The injury consisted of a sprained ankle and slight bruises. There was no claim in the complaint that the injury was in any sense permanent, and as matter of fact Ives sued for loss of wages during only five weeks, claiming fifty dollars as the measure of his damage. I am informed that the injury was not serious, that Ives entirely recovered and resumed his work within four weeks after the injury, that the railroad company ultimately paid him for his loss of time, that he has since been continuously employed by the same company at similar work, and that in no sense whatever was his ability to earn his livelihood impaired.

Let us turn to the picture drawn by Mr. Roosevelt in describing this case for the instruction and guidance of a constitutional convention. "I am not thinking of the terminology of the decision, nor of what seem to me the hair-splitting and meticulous arguments elaborately worked out to justify a great and terrible miscarriage of justice. Moreover, I am not thinking only of the sufferers in any given case, but of the tens of thousands of others who suffer because of the way this case was decided. In the New York case, the railway employee who was injured was a man named, I believe, Ives. The court admits that by every moral consideration he was entitled to recover as his due the money that the law intended to give him. Yet the court by its decision forces that man to stagger through life maimed, and keeps the money that should be his in the treasury of the company in whose service, as an incident of his regular employment and in the endurance of ordinary risks, he lost the ability to earn his own livelihood. There are thousands of Iveses in this country; thousands of cases such as this come up every year; and while this is true, while the courts deny essential and elementary justice to these men and give to them and the people in exchange for justice a technical and empty formula, it is idle to ask me not to criticize them. As long as injustice is kept thus intrenched by any court, I will protest as strongly as in me lies against such action."

To repeat, as a matter of fact, Ives was not maimed; he was not permanently injured; he was not deprived of the ability to earn his livelihood. Nor did the Court of Appeals admit that by every moral consideration Ives was entitled to recover as his due the money that the law intended to give him. Had that point been before a court of justice, however sympathetic and sentimental, I doubt very much whether it could have held that Ives was entitled, by any moral consideration whatever, to compel the railway company to compensate him for the four or five weeks' loss of wages resulting from no fault on its part but from his own carelessness. The statements that "the court by its decision forces that man to stagger through life maimed" and that "he lost the ability to earn his own livelihood" were simply so much fiction, but, of course they were very effective with emotional audiences and highly calculated to inflame Mr. Roosevelt's hearers and readers against the courts. I venture to assert that it would be difficult to find or indeed to conceive a more unwarranted and unfair misrepresentation of the facts actually before a court.

Another current misrepresentation is that the Supreme Court of the United States in the Second Employers' Liability cases upheld as constitutional a statute of Congress identical with the statute held unconstitutional by the New York Court of Appeals in the Ives case. The people are being told that the New York courts hold the provision requiring due process of law in the fourteenth amendment to mean one thing, whilst the Supreme Court of the United States holds exactly the same provision in the fifth amendment to mean the contrary. But those who will take the trouble to read the two statutes will at once perceive that the act of Congress differs radically from the New York Workmen's Compensation Act. The act of Congress, although abolishing or restricting the rules as to fellow-servants' acts, assumption of risk and contributory negligence, imposes liability on common carriers by railroad only for "injury or death resulting in whole or in part from the _negligence_ of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, _due to its negligence_, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." On the other hand, the New York statute created liability not in one dangerous employment, such as the business of common carrier by railroad, but in many other employments not necessarily dangerous, and wholly irrespective of negligence or fault on the part of the employer or any of his officers, agents, or employees. In fact, there is nothing in the New York decision or in the opinions of the judges which would invalidate a statute identical with the act of Congress if now enacted by the New York legislature. The Ives case, far from preventing such a statute, would be an authority in its support.

I regret that we have not time to consider further these particular decisions. In my opinion they correctly and wisely applied established principles of constitutional law and constitutional justice and were morally right and just. I am now pleading for fairness and temperance in discussing the decisions of our courts and for the imperative necessity of founding these discussions upon the truth. Ambassador Bryce said in a recent address: "To counsel you to stick to facts is not to dissuade you from philosophical generalizations, but only to remind you ... that the generalizations must spring out of the facts, and without the facts are worthless." In other words, a regard for fact, which is but another term for truth, is or should be as indispensable in law and politics as it is in philosophy.

The criticisms of which the above are fair samples must be refuted because they find constant repetition and have the authority of distinguished leaders of public opinion, who at the present time seem to have the confidence of the people. Their statements are naturally accepted as true. The judges are being similarly misrepresented and assailed on all sides, and they cannot defend themselves. Thus far the bar at large has seemed indifferent, and a misconception of what constitutes good taste imposes silence upon the counsel engaged in the cases which are criticized. The people are being misled, prejudiced and inflamed by false statements and unfair criticism. If the courts are not defended, they may bend before the storm of undeserved censure. Constituted as humanity is, there is grave danger that the judges will be unconsciously intimidated and coerced by this abuse and clamor. Is it not high time that the members of our profession should charge themselves with the task of defending the courts by placing the facts before the people? The bar associations of the country will never be called upon to render a greater service to the profession and to the community than that of stemming this tide of misrepresentation and intemperate abuse and striving to restore confidence in the learning, impartiality and independence of our judges, in the justice of their decisions, and in the necessity of their enforcing constitutional restraints.

Not only are the decisions of the courts constantly distorted and misrepresented, but the people are also being taught that the courts have usurped the power to declare void any statute in conflict with the constitution, and that no such power was ever intended to be conferred by the framers of national or state constitutions. Surely by this time it ought to be manifest that if the courts may not adjudge invalid and refuse to give force and effect to unconstitutional enactments, it is of little or no use to declare in constitutions that legislatures shall not pass bills of attainder, or ex post facto laws, or laws abridging the freedom of speech, or of the press, or prohibiting the free exercise of religion, or denying the right to trial by jury, or imprisoning without trial, or suspending the writ of habeas corpus, or confiscating private property.

Speaking on this subject of judicial power and duty, Hamilton in the "Federalist" used language which cannot be too often repeated. He clearly showed that in 1788 it was understood and contemplated that the courts should exercise the power to adjudge invalid any statute which was in conflict with the Constitution. In fact, such power had then already been exercised by state courts. He said that constitutional limitations "can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservation of particular rights or privileges would amount to nothing.... 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.... 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; or, in other words, the Constitution ought to be preferred to the statute; the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."[19]

Equally conclusive and equally worthy of constant repetition is the reasoning of Chief Justice Marshall in Marbury _vs._ Madison, where he said: "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limitations may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable."[20]

This decision of the Supreme Court to the effect that it is the duty and within the power of the courts to construe constitutions and to refuse to enforce unconstitutional enactments was rendered in 1803. Yet, notwithstanding that the Constitution of the United States has been amended four times since that decision, and that every state constitution has been again and again remodeled or amended, no American constitution has ever denied to the courts the power to construe constitutions or the duty to refuse to enforce statutes which are in conflict with constitutional limitations. If the power to declare void any statute in conflict with the Constitution of the United States was deemed necessary in 1788 when Hamilton was writing his famous essays, it certainly ought to be far more necessary in our day of multiform legislation, vast increase in the functions of the state, and incompetent, reckless and oppressive class legislation interfering in almost every conceivable manner with the rights and liberties of the individual.

Moreover, the Constitution of the United States would probably never have been adopted if the people had understood, as is now pretended, that Congress was to be at liberty to disregard constitutional limitations and guaranties and that there would be no way whatever of preventing a violation by Congress of the constitutional rights of the individual except at the polls. All students of our history know that the Constitution was accepted by the people upon the distinct pledge that amendments embodying a bill of rights to protect the individual against Congress would be immediately adopted. And one of the first acts of the First Congress in September, 1789, was to submit the ten amendments known as the federal bill of rights, which were thereupon ratified by the states and became an integral part of the Constitution. But of what avail or benefit were these amendments if Congress was not to be effectively restrained and bound by them? It is no exaggeration to say that if the courts should now be deprived of the power to protect litigants who invoke constitutional guaranties and should be compelled to enforce, as valid laws, statutes which violate the limitations upon legislative power which the people have deliberately embodied in their fundamental law, our constitutions would become dead letters, and we might as well turn to the pure and unrestrained democracy of Greece and await her fate.

In an inspiring address delivered this year before the New York State Bar Association on the subject of judicial decisions and public feeling, Senator Root eloquently said: "A sovereign people which declares that all men have certain inalienable rights, and imposes upon itself the great impersonal rules of conduct deemed necessary for the preservation of those rights, and at the same time declares that it will disregard those rules whenever, in any particular case, it is the wish of a majority of its voters to do so, establishes as complete a contradiction to the fundamental principles of our government as it is possible to conceive. It abandons absolutely the conception of a justice which is above majorities, of a right in the weak which the strong are bound to respect. It denies the vital truth taught by religion and realized in the hard experience of mankind, and which has inspired every constitution America has produced and every great declaration for human freedom since Magna Carta--the truth that human nature needs to distrust its own impulses and passions, and to establish for its own control the restraining and guiding influence of declared principles of action."

In many of the current assaults upon the judicial department, in support often of schemes having their birthplace on the continent of Europe, we find the complaint that in declaring statutes unconstitutional the courts in this country--state and federal--exercise greater power than the courts of other countries are authorized to exercise. As if that were an argument against American institutions! Every schoolboy knows that the framers intended that our government should differ from every other government in the world. The founders not only intentionally departed from the examples of existing governments, but anxiously sought to establish a new form of republican government, which would perpetuate the spirit of the Declaration of Independence, secure the inalienable rights of the individual, and protect the minority against the oppression or tyranny of the majority. It was because these rights of the individual against majorities and every form of governmental power were to be made secure and sacred, as the founders believed, that we were to differ from other governments. And the essential and effective feature of that difference was to lie in the power vested in the judicial department to uphold and protect these rights. High sounding declarations of the rights of man would mean very little if they were not to be enforceable by the courts.