Chapter 1

Chapter 13,653 wordsPublic domain

OUR CHANGING CONSTITUTION

CHARLES W. PIERSON

GARDEN CITY NEW YORK

DOUBLEDAY, PAGE & COMPANY

1922

PRINTED IN THE UNITED STATES AT THE COUNTRY LIFE PRESS, GARDEN CITY, N.Y.

PREFACE

Citizens of the United States are wont to think of their form of government, a political system based on a written constitution, as something fixed and stable. In reality, it is undergoing a profound change. The idea which constituted its most distinctive feature, and in the belief of many represents America's most valuable contribution to the science of government, is being forgotten. Formed to be "an indestructible Union composed of indestructible states," our dual system is losing its duality. The states are fading out of the picture.

The aim of this volume is to point out the change and discuss some of its aspects. A few chapters have already appeared in print. "Our Changing Constitution" and "Is the Federal Corporation Tax Constitutional?" were published in the _Outlook_. "The Corporation Tax Decision" appeared in the _Yale Law Journal_. "Can Congress Tax the Income from State and Municipal Bonds?" was printed in the New York _Evening Post_. All of these have been more or less revised and some new matter has been added.

CONTENTS

I. THE SALIENT FEATURE OF THE CONSTITUTION 1

The American Constitution, its origin and contents. Wherein its novelty and greatness lay. Importance of maintaining the equilibrium established between national and state power. View of John Fiske.

II. THE SUPREME COURT OF THE UNITED STATES 3

Place of the Court in the constitutional scheme. Its most important function. Personnel of the Court. Its power moral rather than physical. Its chief weapon the power to declare legislative acts unconstitutional. Limitations on this power--political questions; necessity of an actual controversy; abuses of legislative power. Erroneous popular impressions. Impairment of the constitutional conscience.

III. OUR CHANGING CONSTITUTION 18

Change in popular attitude toward the Constitution. Causes of the change (growth of national consciousness, wars, foreign relations, influence of later immigrants and their descendants, desire to obtain federal appropriations, economic development, railroads, free trade among the states). Methods by which change has been put into effect (constitutional amendment, treaties, federal legislation under cover of power to regulate commerce and lay taxes). Attitude of the Supreme Court. Differences of opinion in the Court.

IV. THE EIGHTEENTH OR PROHIBITION AMENDMENT 35

History and radical character of amendment. Efforts to defeat it in the courts. Unusual course taken by Supreme Court. Discussion of its true place in the development of American constitutional law. Less a point of departure than a spectacular manifestation of a change already under way. Effect of the change on the principle of local self-government.

V. THE NINETEENTH OR WOMAN SUFFRAGE AMENDMENT 49

Attitude of the Constitution toward question of suffrage qualifications. Effect of Civil War amendments. Growth of woman suffrage movement and adoption of Suffrage Amendment. How far the amendment constitutes a federal encroachment on state power. Effect of woman suffrage on questions of governmental theory.

VI. CONGRESS VERSUS THE SUPREME COURT--THE CHILD LABOR LAWS 59

The child labor question. Philanthropic and commercial aspects. Attempt of Congress to legislate under power to regulate commerce. Decision of Supreme Court holding law unconstitutional. The decision explained. Reënactment of law by Congress under cover of power to lay taxes. Arguments for and against constitutionality of new enactment.

VII. STATE RIGHTS AND THE SUPREME COURT 69

The Supreme Court at first a bulwark of national power; to-day the defender of the states. Explanation of this apparent change. Attitude of the Court in the first period. The period of Chief Justice Marshall. The period of Chief Justice Taney. The Reconstruction Period. Attitude of the Court to-day. Reasons why the Court is unable to prevent federal encroachment. Attitude of Hamilton and Marshall toward state rights misunderstood.

VIII. THE FEDERAL TAXING POWER AND THE INCOME TAX AMENDMENT 85

America's embarrassing position if the late war had come before adoption of Income Tax Amendment. Limitations of federal taxing power under the Constitution. Meaning of "uniformity." Apportionment of "direct taxes." The Supreme Court decision in the Income Tax cases in 1894 a reversal of long settled ideas. The Income Tax Amendment an example of recall of judicial decisions. Implied limitations on federal taxing power (compensation of federal judges, due process clause of the Constitution, no power to tax property or governmental activities of the states).

IX. CAN CONGRESS TAX THE INCOME FROM STATE AND MUNICIPAL BONDS? 97

No express prohibition of such taxation; it lies in an implied limitation inherent in our dual system of government. Discussion of doctrine and its development by the Supreme Court. Effect of the Income Tax Amendment. Present dissatisfaction with doctrine and efforts to abolish it.

X. IS THE FEDERAL CORPORATION TAX CONSTITUTIONAL? 106

Nature of the tax. An interference with state power to grant corporate franchises. Nature of our dual government and Supreme Court decisions on the subject discussed. The debate in Congress.

XI. THE CORPORATION TAX DECISION 122

Importance of the decision likely to be overlooked. Criticism of the Court's arguments. Effects of the decision.

XII. THE FEDERAL GOVERNMENT AND THE TRUSTS 129

Origin and history of Sherman Act. Its meaning now clear. Earlier uncertainties owing chiefly to two questions--What is interstate trade and Does the act enlarge the common-law rule as to what restraints were unlawful? How these questions have been settled. Statement of the common-law rule. Incompatibility between the law and present economic conditions. Suggestions for legal reform. The holding company device, its abuses and the possibility of abolishing it. Advantages of the scheme of federal incorporation.

XIII. WHAT OF THE FUTURE? 143

Rapid progress and present extent of federal encroachment on state power. Growth of federal bureaucracy. A reaction against centralization inevitable sooner or later. Adequacy of Constitution to deal with changing conditions. The railroads and the trusts. Dangerous assaults upon Constitution in field of social welfare legislation. Exercise of police power a matter for local authority. Elihu Root's view. Outlook for the future.

APPENDIX 153

OUR CHANGING CONSTITUTION

THE SALIENT FEATURE OF THE CONSTITUTION

Few documents known to history have received as much praise as the United States Constitution. Gladstone called it "the most wonderful work ever struck off at a given time by the brain and purpose of man." The casual reader of the Constitution will be at a loss to account for such adulation. It will seem to him a businesslike document, outlining a scheme of government in terse and well-chosen phrases, but he is apt to look in vain for any earmarks of special inspiration. To understand the true greatness of the instrument something more is required than a mere reading of its provisions.

The Constitution was the work of a convention of delegates from the states, who met in Philadelphia in May, 1787, and labored together for nearly four months. They included a large part of the best character and intellect of the country. George Washington presided over their deliberations. The delegates had not been called together for the purpose of organizing a new government. Their instructions were limited to revising and proposing improvements in the Articles of the existing Confederation, whose inefficiency and weakness, now that the cohesive power of common danger in the war of the Revolution was gone, had become a byword. This task, however, was decided to be hopeless, and with great boldness the convention proceeded to disregard instructions and prepare a wholly new Constitution constructed on a plan radically different from that of the Articles of Confederation. The contents of the Constitution, as finally drafted and submitted for ratification, may be described in few words. It created a legislative department consisting of a Senate and a House of Representatives, an executive department headed by a President, and a judicial department headed by a Supreme Court, and prescribed in general terms the qualifications, powers, and functions of each. It provided for the admission of new states into the Union and that the United States should guarantee to every state a republican form of government. It declared that the Constitution and the laws of the United States made in pursuance thereof, and treaties, should be the supreme law of the land. It provided a method for its own amendment. Save for a few other brief clauses, that was all. There was no proclamation of Democracy; no trumpet blast about the rights of man such as had sounded in the Declaration of Independence. On the contrary, the instrument expressly recognized human slavery, though in discreet and euphemistic phrases.

Wherein, then, did the novelty and greatness of the Constitution lie? Its novelty lay in the duality of the form of government which it created--a nation dealing directly with its citizens and yet composed of sovereign states--and in its system of checks and balances. The world had seen confederations of states. It was familiar with nations subdivided into provinces or other administrative units. It had known experiments in pure democracy. The constitutional scheme was none of these. It was something new, and its novel features were relied upon as a protection from the evils which had developed under the other plans. The greatness of the Constitution lay in its nice adjustment of the powers of government, notably the division of powers which it effected between the National Government and the states. The powers conferred on the National Government were clearly set forth. All were of a strictly national character. They covered the field of foreign relations, interstate and foreign commerce, fiscal and monetary system, post office and post roads, patents and copyrights, and jurisdiction over certain specified crimes. All other powers were reserved to the states or the people. In other words, the theory was (to quote Bryce's "The American Commonwealth") "local government for local affairs; general government for general affairs only."

The Constitution as it left the hands of its framers was not entirely satisfactory to anybody. Owing to the discordant interests and mutual jealousies of the states, it was of necessity an instrument of many compromises. One of the great compromises was that by which the small states were given as many senators as the large. Another is embalmed in the provisions recognizing slavery and permitting slaves to count in the apportionment of representatives. (The number of a state's representatives was to be determined "by adding to the whole number of free persons ... three-fifths of all other persons.") Another was the provision that direct taxes should be apportioned among the states according to population. With all its compromises, however, the Constitution embodied a great governmental principle, full of hope for the future of the country, and the state conventions to which it was submitted for ratification were wise enough to accept what was offered. Ratification by certain of the states was facilitated by the publication of that remarkable series of papers afterward known as the "Federalist." These were the work of Alexander Hamilton, James Madison, and John Jay, and first appeared in New York newspapers.

One of the objections to the new Constitution in the minds of many people was the absence of a "bill of rights" containing those provisions for the protection of individual liberty and property (e.g., trial by jury, freedom of speech, protection from unreasonable searches and seizures) which had come down from the early charters of English liberties. In deference to this sentiment a series of ten brief amendments were proposed and speedily ratified. Another amendment (No. XI) was soon afterward adopted for the purpose of doing away with the effect of a Supreme Court decision. Thereafter, save for a change in the manner of electing the President and Vice-president, the Constitution was not again amended until after the close of the Civil War, when Amendments XIII, XIV, and XV, having for their primary object the protection of the newly enfranchised Negroes, were adopted. The Constitution was not again amended until the last decade, when the Income Tax Amendment, the amendment providing for the election of Senators by popular vote, the Prohibition Amendment, and the Woman Suffrage Amendment were adopted in rapid succession. Some of these will be discussed in later chapters.

It is interesting to note that two of the amendments (No. XI, designed to prevent suits against a state without its permission by citizens of another state, and No. XVI, paving the way for the Income Tax) were called forth by unpopular decisions of the Supreme Court, and virtually amounted to a recall of those decisions by the people. These instances demonstrate the possibility of a recall of judicial decisions by constitutional methods, and tend to refute impatient reformers who preach the necessity of a more summary procedure. Such questions, however, lie outside the scope of this book. We emphasize here the fact that the great achievement of the Constitution was the creation of a dual system of government and the apportionment of its powers. That was what made it "one of the longest reaches of constructive statesmanship ever known in the world."[1] It offered the most promising solution yet devised for the problem of building a nation without tearing down local self-government.

[Footnote 1: Fiske: "The Critical Period of American History," p. 301.]

John Fiske, the historian, writing of the importance of preserving the constitutional equilibrium between nation and states, said:[1]

If the day should ever arrive (which God forbid!) when the people of the different parts of our country shall allow their local affairs to be administered by prefects sent from Washington, and when the self-government of the states shall have been so far lost as that of the departments of France, or even so far as that of the counties of England--on that day the progressive political career of the American people will have come to an end, and the hopes that have been built upon it for the future happiness and prosperity of mankind will be wrecked forever.

[Footnote 1: Id., p. 238.]

If allowance be made for certain extravagances of statement, these words will serve as a fitting introduction to the discussions which follow.

THE SUPREME COURT OF THE UNITED STATES

The Constitution effected an apportionment of the powers of government between nation and states. The maintenance of the equilibrium thus established was especially committed to the Supreme Court. This novel office, the most important of all its great functions, makes the Court one of the most vital factors of the entire governmental scheme and gives it a unique preëminence among the judicial tribunals of the world.

How the office has been performed, and whether the constitutional equilibrium is actually being maintained, are the questions to be considered in this book. Before taking them up, however, it will be useful to glance briefly at the Court itself and inquire how it is equipped for its difficult task.

The United States Supreme Court at present is composed of nine judges. The number originally was six. It now holds its sessions at the Capitol in Washington, in the old Senate Chamber which once echoed with the eloquence of the Webster-Hayne debate. The judges are nominated by the President, and their appointment, like that of ambassadors, must be confirmed by the Senate. The makers of the Constitution took the utmost care to insure the independence of the Court. Its members hold office during good behavior, that is to say for life. They cannot be removed except by impeachment for misconduct. Only one attempt has ever been made to impeach a judge of the Supreme Court[1] and that attempt failed. Still further to insure their freedom from legislative control, the Constitution provides that the compensation of the judges shall not be diminished during their continuance in office.[2]

[Footnote 1: Justice Samuel Chase of Maryland in 1804-5.]

[Footnote 2: It is interesting to observe that this Court, safeguarded against popular clamor and composed of judges appointed for life, has consistently shown itself more progressive and more responsive to modern ideas than have most of the state Supreme Courts whose members are elected directly by the people and for limited terms only.]

From the time of John Jay, the first Chief Justice, down to the present day the men appointed to membership in the Court have, for the most part, been lawyers of the highest character and standing, many of whom had already won distinction in other branches of the public service. The present Chief Justice (Taft) is an ex-President of the United States. Among the other members of the Court are a former Secretary of State of the United States (Justice Day); two former Attorneys General of the United States (Justices McKenna and McReynolds); a former Chief Justice of Massachusetts (Justice Oliver Wendell Holmes, the distinguished son and namesake of an illustrious father); a former Chief Justice of Wyoming (Justice Van Devanter); and a former Chancellor of New Jersey (Justice Pitney).

It is well that the personnel of the Court has been such as to command respect and deference, for in actual power the judiciary is by far the weakest of the three coördinate departments (legislative, executive, judicial) among which the functions of government were distributed by the Constitution. The power of the purse is vested in Congress: it alone can levy taxes and make appropriations. The Executive is Commander-in-Chief of the Army and Navy and wields the appointing power. The Supreme Court controls neither purse nor sword nor appointments to office. Its power is moral rather than physical. It has no adequate means of enforcing its decrees without the coöperation of other branches of the Government.

That coöperation has not always been forthcoming. In the year 1802, Congress, at the instigation of President Jefferson, the inveterate enemy of Chief Justice Marshall, suspended the sessions of the Court for more than a year by abolishing the August term. In 1832, when the State of Georgia defied the decree of the Court in a case involving the status of the Cherokee Indians, the other departments of the Federal Government gave no aid and President Andrew Jackson is reported to have remarked: "John Marshall has made the decision, now let him execute it." In 1868, Congress, in order to forestall decision in a case pending before the Court, hastily repealed the statute on which the jurisdiction of the Court depended.[1] Such instances, however, have been rare. The law-abiding instinct is strong in the American people, and for the most part the decisions of the Supreme Court have been received with respect and unquestioning obedience.

[Footnote 1: See _ex parte McCardle_, 6 Wall. (Supreme Court Reports), 318; 7 _id._, 506.]

The chief weapon in the arsenal of the Court is the power to declare legislative acts void on the ground that they overstep limits established by the people in the Constitution. This power has been frequently exercised. It is stated that the congressional statutes thus nullified have not numbered more than thirty, while at least a thousand state laws have been nullified.[1]

[Footnote 1: Brief of Solicitor General James M. Beck in the Child Labor Tax cases. It is to be borne in mind that there are forty-eight state legislatures and only one Congress.]

The assumption of this power in the Court to declare statutes unconstitutional has been bitterly assailed, and is still denounced in some quarters, as judicial usurpation originated by John Marshall.

On the historical side this objection is not well founded. Various state courts had exercised the power to declare statutes unconstitutional before the Supreme Court came into existence.[1] The framers of the Constitution clearly intended that such a power should be exercised by the Supreme Court.[2] Moreover, a somewhat similar power appears to have been exercised long before in England,[3] though it gave place later to the present doctrine of the legal omnipotence of Parliament.

[Footnote 1: See Bryce: "The American Commonwealth," Vol. I, p. 250.]

[Footnote 2: See e.g., "Federalist," No. LXXVIII.]

[Footnote 3: See opinion of Lord Coke in Bonham's Case, 8 Coke's Reports, 118, decided in 1610.]

On the side of reason and logic, the argument in favor of the power formulated more than a century ago by Chief Justice Marshall has never been adequately answered and is generally accepted as final. He said:[1]

The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?... 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.

[Footnote 1: _Marbury v. Madison_, 1 Cranch, 176.]

It would seem at first blush that the power in the Court to declare legislative acts unconstitutional affords a complete safeguard against congressional encroachment on the prerogatives of the states. Such is not the fact, however. The veto power of the Court by no means covers the entire field of legislative activity. In the Convention which framed the Constitution, attempts were made to give to the judiciary, in conjunction with the executive, complete power of revision over legislative acts, but all such propositions were voted down.[1] As matters stand, there may be violations of the Constitution by Congress (or for that matter by the executive) of which the Court can take no cognizance.

[Footnote 1: See e.g., Farrand: "Records of the Federal Convention," Vol. I, pp. 138 et seq.; Vol. II, p. 298.]