The Constitution of the United States of America: Analysis and Interpretation Part 3

The third period was that of Judicial Review pure and simple. The Court, as heir to the acc.u.mulated doctrines of its predecessors, found itself for the time being in possession of such a variety of instruments of const.i.tutional exegesis that it was often able to achieve almost any result in the field of const.i.tutional interpretation which it considered desirable, and that without flagrant departure from judicial good form.

Indeed, it is altogether apparent that the Court was in actual possession and in active exercise of what Justice Holmes once termed "the sovereign prerogative of choice." It was early in this period that Governor Hughes, soon to ascend the Bench, said, without perhaps intending all that his words literally conveyed, "We are under a Const.i.tution, but the Const.i.tution is what the judges say it is." A decade later it was suggested by an eminent law teacher that attorneys arguing "due process cases" before the Court ought to address the Justices not as "Your Honors" but as "Your Lords.h.i.+ps"; and Senator Borah, in the Senate debate on Mr. Hughes' nomination for Chief Justice, in 1930, declared that the Supreme Court had become "economic dictator in the United States". Some of the Justices concurred in these observations, especially Justices Holmes and Brandeis. a.s.serted the latter, the Court has made itself "a super-legislature" and Justice Holmes could discover "hardly any limit but the sky" to the power claimed by the Court to disallow State acts "which may happen to strike a majority [of its members] as for any reason undesirable".[77]

The fourth period is still with us. It was ushered in by World War I, but its results were consolidated and extended during the 1930's, and have been subsequently still further enlarged and confirmed by World War II and the "cold war". Many of these results have been treated above.

Others can be searched out in the pages of this volume. What they sum up to is this: that what was once vaunted as a Const.i.tution of Rights, both State rights and private rights, has been replaced to a great extent by a Const.i.tution of Powers. The Federal System has s.h.i.+fted base in the direction of a consolidated national power; within the National Government itself there has been an increased flow of power in the direction of the President; even judicial enforcement of the Bill of Rights has faltered at times, in the presence of national emergency.

In this situation judicial review as exercised by the Supreme Court does not cease being an important technique of government under the Const.i.tution, but its field of operation has contracted. The purpose which it serves more and more exclusively is the purpose for which it was originally created to serve, the maintenance of the principle of National Supremacy. But in fact, this is the purpose which it has always served predominantly, even in the era when it was cutting its widest swathe in the field of national legislative policy, the period from 1895 to 1935. Even then there was a multiplicity of state legislatures and only one Congress, so that the legislative grist that found its way to the Court's mill was overwhelmingly of local provenience. And since then several things have happened to confirm this predominance: first, the annexation to Amendment XIV of much of the content of the Federal Bill of Rights; secondly, the extension of national legislative power, especially along the route of the commerce clause, into the field of industrial regulation, with the result of touching state legislative power on many more fronts than ever before; thirdly, the integration of the Nation's industrial life, which has brought to the National Government a major responsibility for the maintenance of a functioning social order.

Forty years ago the late Justice Holmes said:

"I do not think the United States would come to an end if we [the Court] lost our power to declare an Act of Congress void.

I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States".[78]

By and large, this still sizes up the situation.

Edward S. Corwin.

_January, 1953._

Notes

[1] _Cong. Record_, vol. 23, p. 6516.

[2] _The Genessee Chief_, 12 How. 443 (1851), overturning _The Thomas Jefferson_, 10 Wheat. 428 (1825).

[3] Knox _v._ Lee, 12 Wall. 457 (1871); Hepburn _v._ Griswold, 8 Wall.

603 (1870).

[4] Pollock _v._ Farmers' Loan & Trust Co., 157 U.S. 429; Same, 158 U.S.

601.

[5] _Cong. Record_, vol. 78, p. 5358.

[6] Smith _v._ Allwright, 321 U.S. 649, 665.

[7] Ibid. 669.

[8] _The Supreme Court in United States History_, III, 470-471 (1922).

[9] The Dartmouth College Case (1819) occupies 197 pages of 4 Wheaton; Gibbons _v._ Ogden (1824), 240 pages of 9 Wheaton; The Charles River Bridge case (1837), 230 pages of 11 Peters; the Pa.s.senger Cases (1849), 290 pages of 7 Howard; the Dred Scott Case (1857), 240 pages of 19 Howard; _Ex parte_ Milligan (1866), 140 pages of 4 Wallace; the first Pollock Case (1895), 325 pages of 157 U.S.; Myers _v._ United States (1926), 243 pages of 272 U.S.

[10] Max Farrand, _The Records of the Federal Convention of 1787_, III, 240-241 (1911).

[11] See Taney's words in 5 How. 504, 573-574 (1847), and 7 How. 283, 465-70 (1849).

[12] 21 How. 506, 520-521 (1859).

[13] 295 U.S. 495 (1935); 298 U.S. 238 (1936).

[14] 298 U.S. 238, 308-309.

[15] 312 U.S. 100 (1941).

[16] 100 U.S. 371.

[17] 227 U.S. 308, 322.

[18] Dobbins _v._ Commsrs., 16 Pet. 435 (1842); Collector _v._ Day, 11 Wall. 113. (1870).

[19] 4 Wheat. 316, 431 (1819).

[20] For references and further details, see E.S. Corwin, _Court over Const.i.tution_, 129-176 (1938).

[21] [Transcriber's Note: Footnote 21 is missing from original text.]

[22] In this connection, _see_ Oklahoma _v._ Civil Service Comm'n., 330 U.S. 127, 142-145 (1947).

[23] 3 Dall. 54, 74.

[24] 12 Wall. 457, 555 (1871).

[25] 130 U.S. 581, 604.

[26] Fong Yue Ting, 149 U.S. 698 (1893).

[27] 299 U.S. 304, 316-318.

[28] _See also_ University of Illinois _v._ United States, 289 U.S. 48, 59 (1933). In Lichter _v._ United States, 334 U.S. 742, 782 (1948), Justice Burton, speaking for the Court, says: "The war powers of Congress and the President are only those which are derived from the Const.i.tution", but he adds: "the primary implication of a war power is that it shall be an effective power to wage war successfully", which looks very like an attempt to duck the doctrine of an inherent war power while appropriating its results.

[29] Welldon (tr.), Book VI, chap. XIV (1888). Jowett and some others propose a different arrangement.

[30] John Locke. The Second Treatise on Civil Government, -- 141. For the historical background of this principle, see P.W. Duff and H.E.

Whiteside, "_Delegata Potestas Non P[=o]test Delegari_", _Selected Essays on Const.i.tutional Law_, IV, 291-316 (1938).

[31] Panama Refining Co. _v._ Ryan, 293 U.S. 388 (1935); Schechter Corp.

_v._ United States, 295 U.S. 495 (1935).

[32] 343 U.S. 579 (1952).

[33] 299 U.S. 304, 327-329.

[34] 343 U.S. 579, 690.

[35] Andrew C. McLaughlin, _A Const.i.tutional History of the United States_, 81 (1935).

[36] Locke, op. cit., -- 137.

[37] Ibid., -- 159-161.