Part 4

Considered for the two fundamental subjects of the powers of government and the liberties of individuals, interpretation of the Constitution 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 Constitutional Document. The tradition concerning the original establishment of the Constitution 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 Constitution 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 Constitution.

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 Constitutional Theory. More and more the constitutional 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.

The third period was that of Judicial Review pure and simple. The Court, as heir to the accumulated doctrines of its predecessors, found itself for the time being in possession of such a variety of instruments of constitutional exegesis that it was often able to achieve almost any result in the field of constitutional 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 Constitution, but the Constitution 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 Lordships"; 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. Asserted 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 Constitution of Rights, both State rights and private rights, has been replaced to a great extent by a Constitution of Powers. The Federal System has shifted 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 Constitution, 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 Passenger 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 Constitution_, 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 Constitution", 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, Sec. 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 Constitutional 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 Constitutional History of the United States_, 81 (1935).

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

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

[38] Meyers _v._ United States, 272 U.S. 52 (1926).

[39] For the famous debate between "Pacificus" (Hamilton) and "Helvidius" (Madison), see E.S. Corwin, _The President's Control of Foreign Relations_, chap. I (1917).

[40] Writings of Thomas Jefferson, V, 209 (P.L. Ford, ed.; 1895).

[41] 1 Cr. 137, 163 (1803).

[42] Ibid., 165-166.

[43] 7 How. 1.

[44] Fleming _v._ Page, 9 How. 602 (1850).

[45] United States _v._ Tingy, 5 Pet. 115, 122.

[46] 6 _Op. Atty. Gen._ 466 (1854).

[47] 2 Black 635 (1863).

[48] 4 Wall. 2 (1866).

[49] 4 Wall. 475 (1866).

[50] United States _v._ Lee, 106 U.S. 196, 220.

[51] In Re Neagle, 135 U.S. 1, 64.

[52] 158 U.S. 564.

[53] _Autobiography_, 388-389 (1913).

[54] _Op. cit._, 144 (1916).

[55] _Constitutional Government in the United States_, 70 (1908).

[56] _See_ E.S. Corwin. _Total War and the Constitution_, 35-77 (1947).

[57] 343 U.S. 579, 662.

[58] _See_ E.S. Corwin. _Liberty Against Government_, Chaps. III, IV (1948).

[59] "... the supreme power cannot take from any man any part of his property without his consent". _Second Treatise_, Sec. 138.

[60] Van Home's Lessee _v._ Dorrance, 2 Dall. 304, 310 (1795).

[61] Calder _v._ Bull, 3 Dall. 386, 388-389 (1798). _See also_ Loan Association _v._ Topeka, 20 Wall. 655 (1875).

[62] Bank of Columbia _v._ Okely, 4 Wheat. 235, 244.

[63] Scott _v._ Sandford, 19 How. 393, 450 (1857).

[64] 13 N.Y. 378 (1856).

[65] Ibid. 390-392. The absolute veto of the Court of Appeals in the Wynehamer case was replaced by the Supreme Court, under the due process clause of the Fourteenth Amendment, by a more flexible doctrine, which left it open to the State to show reasonable justification for that type of legislation in terms of acknowledged ends of the Police Power, namely, the promotion of the public health, safety and morals. _See_ Mugler _v._ Kansas, 123 U.S. 623 (1887); and for a transitional case, Bartemeyer _v._ Iowa, 18 Wall. 129 (1874).

[66] The Slaughter House Cases, 16 Wall. 36, 78-82 (1873). The opinion of the Court was focused principally on the privileges and immunities clause, and the narrow construction given it at this time is still the law of the Court. But Justices Bradley and Swayne pointed out the potentialities of the due process of law clause, and the former's interpretation of it may be fairly regarded as the first step toward the translation by the Court of "liberty" as Freedom on Contract.

[67] 94 U.S. 113 (1876).

[68] Benjamin R. Twiss, _Lawyers and the Constitution, How Laissez Faire Came to the Supreme Court_, 141-173 (1942).

[69] _See_ especially Lochner _v._ New York, 198 U.S. 45 (1905); and Adkins _v._ Children's Hospital, 261 U.S. 525 (1923).

[70] 169 U.S. 466; ibid. 366.

[71] _See_ Charles W. Collins, _The Fourteenth Amendment and the States_, 188-206 (1912).

[72] Labor Board _v._ Jones & Laughlin, 301 U.S. 1, 33-34; West Coast Hotel Co. _v._ Parrish, 300 U.S. 379, 391-392.

[73] 268 U.S. 652, 666; _cf._ Prudential Ins. Co. _v._ Cheek, 259 U.S. 530, 543 (1922).

[74] The subject can be pursued in detail in connection with Amendment I, pp. 769-810.

[75] These cases are treated in the text, _see_ Table of Cases.

[76] _See_ Williams _v._ United States, 341 U.S. 97 (1951).

[77] _See:_ Oliver Wendell Holmes, _Collected Legal Papers_, 239, 295-296 (1920); Merlo J. Pusey, _Charles Evans Hughes_, I, 203-206 (1951). Burns Baking Co. _v._ Bryan, 204 U.S. 504, 534 (1924); Baldwin _v._ Missouri, 281 U.S. 586, 595 (1930); _American Political Science Review_, xii, 241 (1918); _New York Times_, February 12, 1930. It was also during the same period that Judge Andrew A. Bruce of North Dakota wrote: "We are governed by our judges and not by our legislatures.... It is our judges who formulate our public policies and our basic law". _The American Judge_, 6, 8 (1924). Substantially contemporaneously a well read French critic described our system as _Le Gouvernment des Juges_ (1921); while toward the end of the period Louis B. Boudin published his well known _Government by Judiciary_ (2 vols., 1932).

[78] _Collected Legal Papers_, 295-296.

CONTENTS

[For contents in detail, see tables at beginning of each article and amendment]

Page Prefaces III, V Editor's forward VII Editor's introduction IX Historical note on formation of the Constitution 9 Text of the Constitution (literal print) 17 Text of the amendments (literal print) 37 The Constitution, with annotations 55 The preamble 59 Article I. Legislative Department: Section 1. The Congress 71 2. House of Representatives 87 3. Senate 91 4. Elections and meetings 92 5. Legislative proceedings 95 6. Rights of Members 99 7. Bills and resolutions 101 8. Powers of Congress 105 9. Powers denied to Congress 312 10. Powers denied to the States 325 Article II. Executive Department: Section 1. The President 377 2. Powers and duties of the President 389 3. Miscellaneous powers and duties of the President 462 4. Impeachment 501 Article III. Judicial Department: Section 1. The judges, their terms, and compensation 511 2. Jurisdiction 538 3. Treason 638 Article IV. Federal relations: Section 1. Full faith and credit given in each State 647 2. Citizens 686 3. New States and government of Territory, etc. 697 4. Form of State government 704 Article V. Mode of amendment 707 Article VI. Miscellaneous provisions 717 Article VII. Ratification 741 Amendments to the Constitution: Amendment 1. Religion, free speech, etc. 753 2. Bearing arms 811 3. Quartering soldiers 815 4. Searches and seizures 819 5. Rights of persons 833 6. Rights of accused in criminal prosecutions 873 7. Civil trials 887 8. Punishment for crime 899 9. Rights retained by the people 907 10. Reserved State powers 911 11. Suits against States 923 12. Election of President, etc. 937 13. Slavery and involuntary servitude 945 Section 1. Prohibition of slavery and involuntary servitude 949 2. Power of Congress 949 14. Rights of citizens 955 Section 1. Citizenship; due process; equal protection 963 2. Apportionment of representation 1170 3. Disqualification of officers 1173 4. Public debt; claims for loss of slaves 1174 5. Enforcement 1175 15. Right of citizens to vote 1179 Section 1. Suffrage not to be abridged for race, color, etc. 1183 2. Power of Congress 1183 16. Income tax 1187 17. Popular election of Senators 1203 18. Prohibition of intoxicating liquors 1209 Section 1. Prohibition of intoxicating liquors 1213 2. Concurrent power to enforce 1213 3. Time limit on ratification 1213 19. Equal suffrage 1215 20. Commencement of the terms of the President, Vice President, and Members of Congress, etc. 1221 Section 1. Commencement of terms of President, Vice President, Senators, and Representatives 1225 2. Meeting of Congress 1225 3. Death or disqualification of President elect 1225 4. Congress to provide for case wherein death occurs among those from whom House chooses a President 1225 5. Date of effect 1226 6. Time limit on ratificn 1226 21. Repeal of Eighteenth Amendment 1227 Section 1. Repeal of prohibition 1231 2. Transportation into States prohibited 1231 3. Time limit on ratification 1231 22. Presidential Tenure 1235 Section 1. Restriction on Number of terms 1237 2. Time limit on ratification 1237 Acts of Congress held unconstitutional in whole or in part by the Supreme Court of the United States 1239 Table of Cases 1257 Index 1337

THE CONSTITUTION OF THE UNITED STATES OF AMERICA

HISTORICAL NOTE ON FORMATION OF THE CONSTITUTION

In June 1774, the Virginia and Massachusetts assemblies independently proposed an intercolonial meeting of delegates from the several colonies to restore union and harmony between Great Britain and her American Colonies. Pursuant to these calls there met in Philadelphia in September of that year the first Continental Congress, composed of delegates from 12 colonies. On October 14, 1774, the assembly adopted what has come to be known as the Declaration and Resolves of the First Continental Congress. In that instrument, addressed to His Majesty and to the people of Great Britain, there was embodied a statement of rights and principles, many of which were later to be incorporated in the Declaration of Independence and the Federal Constitution.[a]

This Congress adjourned in October with a recommendation that another Congress be held in Philadelphia the following May. Before its successor met, the battle of Lexington had been fought. In Massachusetts the colonists had organized their own government in defiance of the royal governor and the Crown. Hence, by general necessity and by common consent, the second Continental Congress assumed control of the "Twelve United Colonies", soon to become the "Thirteen United Colonies" by the cooperation of Georgia. It became a _de facto_ government: it called upon the other colonies to assist in the defense of Massachusetts; it issued bills of credit; it took steps to organize a military force, and appointed George Washington commander in chief of the Army.

While the declaration of the causes and necessities of taking up arms of July 6, 1775,[b] expressed a "wish" to see the union between Great Britain and the colonies "restored", sentiment for independence was growing. Finally, on May 15, 1776, Virginia instructed her delegates to the Continental Congress to have that body "declare the united colonies free and independent States."[c] Accordingly on June 7 a resolution was introduced in Congress declaring the union with Great Britain dissolved, proposing the formation of foreign alliances, and suggesting the drafting of a plan of confederation to be submitted to the respective colonies.[d] Some delegates argued for confederation first and declaration afterwards. This counsel did not prevail. Independence was declared on July 4, 1776; the preparation of a plan of confederation was postponed. It was not until November 17, 1777, that the Congress was able to agree on a form of government which stood some chance of being approved by the separate States. The Articles of Confederation were then submitted to the several States, and on July 9, 1778, were finally approved by a sufficient number to become operative.

Weaknesses inherent in the Articles of Confederation became apparent before the Revolution out of which that instrument was born had been concluded. Even before the thirteenth State (Maryland) conditionally joined the "firm league of friendship" on March 1, 1781, the need for a revenue amendment was widely conceded. Congress under the Articles lacked authority to levy taxes. She could only request the States to contribute their fair share to the common treasury, but the requested amounts were not forthcoming. To remedy this defect, Congress applied to the States for power to lay duties and secure the public debts. Twelve States agreed to such an amendment, but Rhode Island refused her consent, thereby defeating the proposal.

Thus was emphasized a second weakness in the Articles of Confederation, namely, the _liberum veto_ which each State possessed whenever amendments to that instrument were proposed. Not only did all amendments have to be ratified by each of the 13 States, but all important legislation needed the approval of 9 States. With several delegations often absent, one or two States were able to defeat legislative proposals of major importance.

Other imperfections in the Articles of Confederation also proved embarrassing. Congress could, for example, negotiate treaties with foreign powers, but all treaties had to be ratified by the several States. Even when a treaty was approved, Congress lacked authority to secure obedience to its stipulations. Congress could not act directly upon the States or upon individuals. Under such circumstances foreign nations doubted the value of a treaty with the new republic.

Furthermore, Congress had no authority to regulate foreign or interstate commerce. Legislation in this field, subject to unimportant exceptions, was left to the individual States. Disputes between States with common interests in the navigation of certain rivers and bays were inevitable. Discriminatory regulations were followed by reprisals.

Virginia, recognizing the need for an agreement with Maryland respecting the navigation and jurisdiction of the Potomac River, appointed in June 1784, four commissioners to "frame such liberal and equitable regulations concerning the said river as may be mutually advantageous to the two States." Maryland in January 1785 responded to the Virginia resolution by appointing a like number of commissioners[e] "for the purpose of settling the navigation and jurisdiction over that part of the bay of Chesapeake which lies within the limits of Virginia, and over the rivers Potomac and Pocomoke" with full power on behalf of Maryland "to adjudge and settle the jurisdiction to be exercised by the said States, respectively, over the waters and navigations of the same."[f]

At the invitation of Washington the commissioners met at Mount Vernon, in March 1785, and drafted a compact which, in many of its details relative to the navigation and jurisdiction of the Potomac, is still in force.[g] What is more important, the commissioners submitted to their respective States a report in favor of a convention of all the States "to take into consideration the trade and commerce" of the Confederation. Virginia, in January 1786, advocated such a convention, authorizing its commissioners to meet with those of other States, at a time and place to be agreed on, "to take into consideration the trade of the United States; to examine the relative situations and trade of the said States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony; and to report to the several States, such an act relative to this great object, as when unanimously ratified by them, will enable the United States in Congress, effectually to provide for the same."[h]

This proposal for a general trade convention seemingly met with general approval; nine States appointed commissioners. Under the leadership of the Virginia delegation, which included Randolph and Madison, Annapolis was accepted as the place and the first Monday in September 1786 as the time for the convention. The attendance at Annapolis proved disappointing. Only five States--Virginia, Pennsylvania, Delaware, New Jersey, and New York--were represented; delegates from Massachusetts, New Hampshire, North Carolina, and Rhode Island failed to attend. Because of the small representation, the Annapolis convention did not deem "it advisable to proceed on the business of their mission." After an exchange of views, the Annapolis delegates unanimously submitted to their respective States a report in which they suggested that a convention of representatives from all the States meet at Philadelphia on the second Monday in May 1787 to examine the defects in the existing system of government and formulate "a plan for supplying such defects as may be discovered."[i]