Part 6

When our form of government is compared with that of other countries, and we are told that in England or in France or elsewhere so-called progressive measures have been forced into immediate operation by the will of the majority, and that the courts there were powerless to interfere, is it seriously intended to suggest to the people of the United States that they should, therefore, cast aside all constitutional restraints, all their ancient and honest constitutional principles, and leave the protection of life, liberty and property wholly in the hands of the legislative branch? Are there not still certain rights which even those who are assailing our institutions, under the protection of the very Constitution they deride, would want to have protected by our courts? When it is urged that the courts should not have power to declare an act unconstitutional, but should be compelled to enforce all legislative enactments although some of them might conflict with the Constitution, is it realized that the bill of rights would then be left to the arbitrary discretion or caprice of the legislature, and that consequently it would be of no more practical protection to the individual than the paper constitutions of some of the South American republics which, too, contain eloquent declarations of the rights of the individual? Is it forgotten or overlooked that in England and France and all the other countries with whose systems of government ours is being compared, the legislative power is practically supreme, and that it can outlaw or disseize or imprison at its mere will--that it can deny religious liberty, abridge the freedom of speech or of the press, pass bills of attainder and ex post facto laws, suspend the writ of habeas corpus, impose cruel and unusual punishments, deny to the individual accused of crime the right to a jury-trial or even any hearing at all, confiscate private property without compensation, and impair the obligation of contracts?

Let us, for example, suppose that Congress or a state legislature saw fit to imprison those who did not profess the religion of the majority, or observe its forms and tenets. Who could then protect the minority against such tyrannical enactments except the courts, and how could the courts shield them save by declaring the statute unconstitutional and void and refusing to enforce it? We have only to go back a few generations to find just such laws in England and in the American colonies, and it is the repetition of them that our constitutions seek to prevent. Suppose again that Congress or a state legislature should pass a statute abridging the freedom of speech or of the press and making those who violated the statute subject to criminal prosecution and imprisonment. How could the individual be then protected except by the judiciary, and how could the judiciary protect him unless by exercising the power to declare the statute unconstitutional?

Do the agitators who are attacking our constitutional system explain to their listeners that in the foreign governments with which they are making comparisons the legislative power could compel workmen in any trade to work as many hours a day, at such rates of wages, and under such conditions as the majority saw fit to enact? Suppose that the Pennsylvania legislature should pass a statute compelling laborers in coal mines to labor twelve or more hours a day for a compensation fixed by it and providing that refusal should constitute a crime. Or similarly in the case of railroad employees. In doing so, the legislature would find a precedent in the famous English Statute of Labourers as well as in numerous other European enactments. The Pennsylvania legislature might pass an act, similar to that enacted by the British parliament in 1720 and again in 1800, making it a crime for laborers to combine to obtain an advance of wages or to lessen or alter their hours of work. Is it inconceivable that the time may come when the majority of the voters in Pennsylvania will believe that it is imperative thus to regulate labor in coal mines and on the railroads, both of which industries are indispensable, serve every household in the state, affect every individual, rich or poor, and compel all to pay tribute? Might not prejudice and self-interest tempt or impel to such a statute, and might not the majority enact it, particularly if those affected were aliens without political power? Is it inconceivable that the owners of the coal mines and the railroads may some day control a majority in the legislature? But how could these miners and railroad employees be protected from such enactments and criminal prosecutions thereunder unless the courts had the power to declare statutes unconstitutional and to refuse to enforce them because depriving the individual of his constitutional rights?

In nine cases out of ten the answer to these suggestions by those who to-day are assailing the judicial department would undoubtedly be that no one intends to go to any such extreme, and that no one wishes to be placed or to place any one else entirely at the mercy of the legislature. Thus, they would concede that some rights should still be safeguarded by the courts. But does not this answer contain the gist of the whole problem and the whole principle and virtue of the American system of constitutional restraints? If the critics of our system would have some rights, and particularly their own, protected by the courts, must they not then confess that in truth they only wish changes where the rights of others are concerned, and that they would cling to the Constitution and invoke the protection of the judicial power in all those respects in which their own personal liberty and their own personal and property rights are affected? Chief Judge Cullen of the New York Court of Appeals recently said that "the great misfortune of the day is the mania for regulating all human conduct by statute, from responsibility for which few are exempt, since many of our most intelligent and highly educated citizens, who resent as paternalism and socialism legislative interference with affairs in which they are interested, are most persistent in the attempt to regulate by law the conduct of others."[21]

I do not doubt that if we could have an exhaustive debate before a great tribunal of American public opinion and could step by step analyze and sift the arguments against the judicial power in constitutional cases, we would find in the final analysis that those who are so fiercely charging the courts with usurping power by refusing to enforce unconstitutional enactments would still want the continued protection of the courts so far as their own constitutional rights and liberties were concerned, and that they were only asking modification and curtailment in respect of the rights and liberties of others. I am confident that if it were left to the people of the United States to determine by their votes the simple question whether they would place in the hands of Congress or of their state legislatures the fundamental, elemental, inalienable rights which every American citizen now enjoys--the inalienable rights proclaimed in the Declaration of Independence--an overwhelming vote would be cast against any such change. Indeed, support for this conviction may be found in the recent experience of Australia, that hotbed of radicalism. An attempt by constitutional amendment to curtail the power of the judiciary in labor controversies and to confer upon the Australian parliament all power necessary to deal with labor matters was there the subject of a referendum and met with a decisive defeat at the polls. Are we likely to be less conservative than the Australians, or to be less mindful of the necessity for wise constitutional guaranties and restraints?

The truth is that our constitutions, national and state, do not stand in the way of any fair and just exercise of what is called the police power, or of measures for social progress or social justice, and that they do not prevent reasonable and just regulations tending to secure the health and promote the welfare of the community at large, or the enactment of proper and reasonable factory laws or proper and reasonable workmen's compensation acts. The main source of trouble is that the statutes which the courts are compelled to refuse to enforce are very often hastily and crudely drawn, and are often inherently unreasonable and unjust.

But, even if this be not so; even if the people, after full statement of the facts and thorough explanation of the effect of the change, upon mature consideration desire to vest greater power in our legislatures, or to curtail the power of the courts, the means are within their reach. In New York and in other states, the Constitution can be easily amended within two years.

It has been repeatedly asserted that the Constitution of the United States has become practically unamendable, when as a matter of fact its amendment does not involve any greater difficulties than were intended or than would seem reasonably necessary, or than would be provided if we were now framing a new national constitution. The prescribed machinery of a vote by two-thirds of both houses of Congress and ratification by three-fourths of the states simply compels deliberation and prevents hasty and unconsidered action. If the people of the country really desire a particular amendment to the Constitution of the United States, it ought to be readily obtainable within less than two years.

Thus, the first ten amendments were proposed by Congress in September, 1789, and were adopted in those days of slow travel and difficult communication by eight states within six months and by the requisite three-fourths within two years. The twelfth amendment, proposed in 1803, was ratified in nine months. The thirteenth amendment, proposed by Congress in 1865, was ratified by the legislatures of twenty-seven out of the then thirty-six states within ten months; and the fifteenth amendment, the latest, proposed in February, 1869, was ratified by twenty-nine out of the thirty-seven states within one year. The delay in the adoption of the proposed sixteenth amendment authorizing Congress to levy an income tax is due wholly to the fact that there is a serious difference of opinion as to whether or not this power should be conferred, although the advocates of the amendment confidently proclaimed the existence of an almost universal desire on the part of the people for such an amendment to the Constitution.[22]

One of the most insidious suggestions that can possibly be made to the people at large is that there is an insurmountable difficulty in securing amendments to our constitutions, just as misleading and dangerous as it is for them to be told that their desires are being thwarted by the judiciary and that they must accomplish reforms either by coercing the courts or by undermining the foundations of their constitutions. The future contentment of the people requires that they shall feel that the governments, state and federal, are their governments, that they themselves are ultimately the sovereign power, and that they are at liberty to amend the organic law from time to time as their mature and deliberate judgment shall deem necessary or desirable. All that the conservatives can ask or do ask is that the people shall act deliberately and under circumstances calculated to afford time and opportunity for full explanation and a full understanding of the scope and tendency of the proposed changes, to the end that errors may be discovered and exposed, that theorizing, sentimentalism, clamor and prejudice may exhaust themselves, and that the sober second thought of every part of the country may be asserted. If it be then determined to amend our constitutions, even to the extent of placing life, liberty and property at the unrestrained discretion and mercy of our legislators, the will of the sovereign people will have to be obeyed. Let us hope and pray, however, that when amendments are adopted, they will be conservative and wise, that the rights of the minority as against the majority will not be heedlessly sacrificed for the temporary advantage of one class over another, and that it will be appreciated that individual liberty should be the vital concern of every man, rich or poor, as being essential to the perpetuation of the institutions which we cherish as peculiarly and preeminently American. Let us especially try to avoid permitting any class to make use of constitutional amendments or of statutory enactments for its own special purposes. Let us, whilst meeting in full sympathy, generosity and charity the legitimate demands of the laboring classes and of the poor and humble, nevertheless keep our eyes open to prevent any such vicious results as would arise from constitutional or statutory provisions framed nominally for the benefit of labor but really for the purpose of serving the interests of a particular class against another, as we have seen was the case in the New York tenement-house legislation of 1884. In the meantime, pending such amendments in the due, orderly and reasonable course prescribed by our constitutions, let us be faithful and devoted to our constitutional system, which for more than a century has carried us through every storm and so often "in spite of false lights on the shore." Let us also be truthful and fair and, if possible, temperate in our criticism of all public officials, whether legislative, executive, or judicial.

Finally, a word about the special duty of our profession. It is not the pulpit nor the press, but the law which reaches and touches every fibre of the whole fabric of life, which surrounds and guards every right of the individual, which grasps the greatest and the least of human affairs, and which comprehends the whole community and every human right. We lawyers, if worthy of our profession, are in duty bound not merely to defend constitutional guaranties before the courts for individual clients, but to teach the people in season and out of season to value and respect the constitutional rights of others and to respect and cherish the institutions which we have inherited. It is our duty to preach constitutional morality to the rich and to the poor, to all trades and to all professions, to all ranks and to all classes, in the cities and on the plains. It is for us to convince the members of every class that, in the long run, disregard of the fundamental rights of others would be in conflict with their own permanent welfare and happiness, and cannot be permitted if we are to remain a free people. What higher duty, what nobler task could engage us than to teach the value and sacredness of the ancient and honest principles of justice embodied in our constitutions, immortal as the eternal truths from which they derive their origin, and to preach to all classes the virtue of political justice and self-imposed political restraints, without which there can be no true constitutional morality.

FOOTNOTES:

[Footnote 10: Address before the Pennsylvania State Bar Association at its eighteenth annual meeting, held at Cape May, New Jersey, June 25, 1912.]

[Footnote 11: 188 United States Reports, p. 375.]

[Footnote 12: 98 New York Reports, p. 98.]

[Footnote 13: 33 Hun's Reports, pp. 380, 382, 383.]

[Footnote 14: 177 New York Reports, p. 145; 198 United States Reports, p. 45.]

[Footnote 15: 169 United States Reports, p. 366.]

[Footnote 16: 207 United States Reports, p. 463.]

[Footnote 17: 223 United States Reports, p. 1.]

[Footnote 18: 201 New York Reports, p. 271.]

[Footnote 19: The Federalist, Ford's edition, pp. 520, 521, 522.]

[Footnote 20: 1 Cranch's Reports, pp. 176-177.]

[Footnote 21: 204 New York Reports, p. 534.]

[Footnote 22: Since this address was delivered, the sixteenth amendment has been ratified. It was proposed by Congress July 16, 1909, and declared effective February 25, 1913. The seventeenth amendment was proposed by Congress May 15, 1912, and declared effective May 31, 1913. In view of this demonstration, it should certainly not be any longer urged that the Constitution of the United States is practically unamendable.]

THE ELEVENTH AMENDMENT[23]

Of the important questions of constitutional law now before the country, none more vitally affects the peace and harmony of our dual system of government than that of the power of a federal court to enjoin a state officer from enforcing the provisions of a state statute which is in conflict with the Constitution of the United States. This question usually arises in connection with the eleventh article of amendment, which provides that "the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." Serious controversies regarding the issuance of injunctions by federal courts against state officers have arisen in New York, North Carolina, Alabama, Missouri, Kansas, Minnesota, and other states. A convention of attorneys-general from a number of states, held at St. Louis in September and October, 1907, adopted a memorial to the President and Congress praying that the jurisdiction of the circuit courts of the United States might be curtailed in respect of suits brought to restrain state officers from enforcing state laws or the orders of state administrative boards. The President in his annual message to Congress called the matter to the attention of that body, and stated that discontent was often expressed with the use of the process of injunction by the courts where state laws were concerned. The assembling of Congress was marked by the introduction of numerous bills to curtail the power of the federal courts to issue injunctions and by the offering of several joint resolutions to amend the Constitution of the United States, which had the same object. The question will, perhaps, figure prominently in the next presidential campaign. It may, therefore, be appropriate to review at this time the history of the eleventh article of amendment to the Constitution of the United States in order to see what light that history throws upon the purpose of its framers. Did they intend, in prohibiting suits by an individual against a state, to deny to the courts of the United States the power to enjoin a state officer from enforcing a state statute in conflict with the Constitution of the United States?

In 1787 and 1788, when the adoption of the Constitution was under consideration by the people of the United States, conflicting views were entertained as to the suability of a state by an individual for the recovery of claims against it. Hamilton, Madison and Marshall expressed the opinion that a state would not be suable by an individual under the Constitution as drafted. A number of prominent men, conspicuous among whom were Edmund Pendleton, Patrick Henry and George Mason, were of opinion that the language of the judicial clause conferred jurisdiction to entertain and determine such a suit. Some urged this as an objection to the Constitution. Others, including James Wilson of Pennsylvania and Edmund Randolph of Virginia, two of the most distinguished lawyers and publicists of the day and members of the Constitutional Convention, contended not only that jurisdiction was conferred but that it was wise and necessary that such jurisdiction should exist. Wilson urged that "when a citizen has a controversy with another state, there ought to be a tribunal where both parties may stand on a just and equal footing," and Randolph argued that the jurisdiction would tend "to render valid and effective existing claims, and secure that justice, ultimately, which is to be found in every regular government." The Constitution of the United States was adopted as submitted with the understanding that amendments would be promptly proposed. The First Congress submitted twelve amendments, ten of which were adopted, but the suability of a state was not mentioned in any of them.

The question was presented for judicial decision in 1792 in an action brought by Chisholm, a citizen of the state of South Carolina, against the state of Georgia in the Supreme Court of the United States under its original jurisdiction.[24] The action was in assumpsit to recover a debt. The court then consisted of Chief Justice Jay and Justices Cushing, Wilson, Blair, Johnson and Iredell. On February 18, 1793, the court held, Mr. Justice Iredell alone dissenting, that under the Constitution as originally adopted a state could be sued in that court by a citizen of another state in an action of assumpsit to enforce the payment of a contract debt. This decision, which was followed by the commencement of the suit of Vassal _vs._ Massachusetts, created irritation and alarm among the states, and particularly among those which were heavily burdened with debt. The anti-Federalist prints were loud in invectives against the decision, which was termed a violation of the sovereignty of the states, and it was declared that the people were "called upon to draw their swords against this invasion of their rights." It has been said, though with some exaggeration, that "the states fairly rose in rebellion against the decision." Four states formally protested. Although Georgia had been the first state to invoke the original jurisdiction of the Supreme Court, it nevertheless refused to appear in the Chisholm suit, and filed a remonstrance and protestation against the exercise of jurisdiction. After the decision, it openly defied the authority of the national judiciary. Indeed, it is stated by McMaster, Cooley and other writers that the legislature of Georgia at once passed a law subjecting to death without benefit of clergy any officer who should attempt to serve a process in any suit against the state, but no record of any such statute can be found. Probably, as some one has suggested, the supposed law was a bill which passed only the lower branch of the legislature. At all events, the legislatures of Virginia, Massachusetts and Connecticut instructed their senators and representatives to secure the adoption of an amendment to the Constitution which should prevent suits against a state by an individual.

On February 20, 1793, two days after the opinions in Chisholm _vs._ Georgia were delivered, a resolution was offered in the United States Senate proposing an amendment of the Constitution in the following terms: "The judicial power of the United States shall not extend to any suits in law or equity, commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state."

The proposed amendment was debated to some extent in the Second Congress, but it was not passed. In the Third Congress, on January 2, 1794, Caleb Strong, one of the senators from Massachusetts, moved the adoption of a resolution which changed the form of the proposed amendment so as to read as follows: "The judicial power of the United States shall not _be construed to_ extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."