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Overview
Beard explores the intentions of the constitution's framers by delving into the records of the Constitutional Convention of 1787 and the text of the constitution itself. He places information from these sources into the context of colonial and republican American life, drawing upon memoirs and correspondence of the day for further insights. This edition of his work is supplemented by an appendix and bibliographies, along with an extensive Introduction, "Charles Beard and the American Debate Over Judicial Review, 1790-1961." Students and scholars of political science, history, and law will find this book an indispensable addition to their libraries.
Product Details
| ISBN-13: | 9780486149615 |
|---|---|
| Publisher: | Dover Publications |
| Publication date: | 06/19/2012 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 160 |
| File size: | 592 KB |
Read an Excerpt
The Supreme Court and The Constitution
By Charles A. Beard
Dover Publications, Inc.
Copyright © 2006 Dover Publications, Inc.All rights reserved.
ISBN: 978-0-486-14961-5
CHAPTER 1
Attacks Upon Judicial Control
Did the framers of the federal Constitution intend that the Supreme Court should pass upon the constitutionality of acts of Congress? The emphatic negative recently given to this question by legal writers of respectable authority has put the sanction of some guild members on the popular notion that the nullification of statutes by the federal judiciary is warranted neither by the letter nor by the spirit of the supreme law of the land and is, therefore, rank usurpation. Thus the color of legality, so highly prized by revolutionaries as well as by apostles of law and order, is given to a movement designed to strip the courts of their great political function. While the desirability of judicial control over legislation may be considered by practical men entirely apart from its historical origins, the attitude of those who drafted the Constitution surely cannot be regarded as a matter solely of antiquarian interest. Indeed, the eagerness with which "the views of the Fathers" have been marshalled in support of the attack upon judicial control proves that they continue to exercise some moral weight, even if they are not binding upon the public conscience.
In an address before the Law Department of the University of Pennsylvania on April 27, 1906, the Honorable Walter Clark, Chief Justice of North Carolina, expressly declares that it was not the intention of the framers to confer upon the courts the power of passing upon the constitutionality of statutes. A proposition was made in the convention, he maintains, to confer this high power upon the judiciary and was defeated; the doctrine of judicial control had been enunciated in but a few cases before the meeting of the Convention and had been strongly disapproved by the people; the action of the Supreme Court in assuming the power to declare an act of Congress void was without a line in the Constitution to authorize it either expressly or by implication; and had the Convention intended to give the courts this power, it would not have left its exercise unreviewable and final.
To state the case in Mr. Justice Glark's own language:
A proposition was made in the convention—as we now know from Mr. Madison's Journal—that the judges should pass upon the constitutionality of acts of Congress. This was defeated June 5, receiving the vote of only two States. It was renewed no less than three times, i.e., on June 6, July 21, and finally again for the fourth time on August 15; and, though it had the powerful support of Mr. Madison and Mr. James Wilson, at no time did it receive the votes of more than three States. On this last occasion (August 15) Mr. Mercer thus summed up the thought of the convention: He disapproved of the doctrine that the judges, as expositors of the Constitution, should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be incontrovertible.
Prior to the convention, the courts of four States—New Jersey, Rhode Island, Virginia, and North Carolina—had expressed an opinion that they could hold acts of the legislature unconstitutional. This was a new doctrine never held before (nor in any other country since) and met with strong disapproval. In Rhode Island the movement to remove the offending judges was stopped only on a suggestion that they could be "dropped" by the legislature at the annual election, which was done. The decisions of these four State courts were recent and well known to the convention. Mr. Madison and Mr. Wilson favored the new doctrine of the paramount judiciary, doubtless deeming it a safe check upon legislation, since it was to be operated only by lawyers. They attempted to get it into the Federal Constitution in its least objectionable shape—the judicial veto before final passage of an act, which would thus save time and besides would enable the legislature to avoid the objections raised. But even in this diluted form, and though four times presented by these two very able and influential members, this suggestion of a judicial veto at no time received the votes of more than one-fourth of the States.
The subsequent action of the Supreme Court in assuming the power to declare acts of Congress unconstitutional was without a line in the Constitution to authorize it, either expressly or by implication. The Constitution recited carefully and fully the matters over which the courts should have jurisdiction, and there is nothing, and after the above vote four times refusing jurisdiction, there could be nothing, indicating any power to declare an act of Congress unconstitutional and void.
Had the convention given such power to the courts, it certainly would not have left its exercise final and unreviewable. It gave Congress power to override the veto of the President, though that veto was expressly given, thus showing that in the last analysis the will of the people, speaking through the legislative power, should govern. Had the convention supposed the courts would assume such power, it would certainly have given Congress some review over judicial action and certainly would not have placed the judges irretrievably beyond "the consent of the governed" and regardless of the popular will by making them appointive, and further clothing them with the undemocratic prerogative of tenure for life.
Such power does not exist in any other country, and never has. It is therefore not essential to our security. It is not conferred by the Constitution; but, on the contrary, the convention, as we have seen, after the fullest debate, four times, on four several days, refused by a decisive vote to confer such power. The judges not only have never exercised such power in England, where there is no written constitution, but they do not exercise it in France, Germany, Austria, Denmark, or in any other country which, like them, has a written constitution.
A more complete denial of popular control of this Government could not have been conceived than the placing of such unreviewable power in the hands of men not elected by the people and holding office for life. The legal-tender act, the financial policy of the Government, was invalidated by one court and then validated by another, after a change in its personnel. Then the income tax, which had been held constitutional by the court for a hundred years, was again so held, and then by a sudden change of vote by one judge it was held unconstitutional, nullified, and set at naught, though it had passed by a nearly unanimous vote both Houses of Congress, containing many lawyers who were the equals, if not the superiors, of the vacillating judge, and had been approved by the President and voiced the will of the people. This was all negatived (without any warrant in the Constitution for the court to set aside an act of Congress) by vote of one judge; and thus $100,000,000 and more of annual taxation was transferred from those most able to bear it and placed upon the backs of those who already carried more than their fair share of the burdens of government. Under an untrue assumption of authority given by 39 dead men one man nullified the action of Congress and the President and the will of 75,000,000 of living people, and in the 13 years since has taxed the property and labor of the country, by his sole vote, $1,300,000-000, which Congress.... had decreed should be paid out of the excessive incomes of the rich.
In England one-third of the revenue is derived from the superfluities of the very wealthy by the levy of a graduated income tax and a graduated inheritance tax, increasing the percent. With the size of the income. The same system is in force in all other civilized countries. In not one of them would the hereditary monarch venture to veto or declare null such a tax. In this country alone the people, speaking through their Congress and with the approval of their Executive, can not put in force a single measure of any nature whatever with assurance that it shall meet with the approval of the courts; and its failure to receive such approval is fatal, for, unlike the veto of the Executive, the unanimous vote of Congress (and the income tax came near receiving such vote) can not prevail against it. Of what avail shall it be if Congress shall conform to the popular demand and enact a "rateregulation" bill and the President shall approve it if five lawyers, holding office for life and not elected by the people, shall see fit to destroy it, as they did the in-come-tax law? Is such a government a reasonable one, and can it be longer tolerated after 120 years of experience have demonstrated the capacity of the people for self-government? If five lawyers can negative the will of 100,000,000 of men, then the art of government is reduced to the selection of those five lawyers.
A power without limit, except in the shifting views of the court, lies in the construction placed upon the fourteenth amendment, which, passed, as everyone knows, solely to prevent discrimination against the colored race, has been construed by the court to confer upon it jurisdiction to hold any provision of any statute whatever "not due process of law." This draws the whole body of the reserved rights of the States into the maelstrom of the Federal courts, subject only to such forbearance as the Federal Supreme Court of the day, or in any particular case, may see fit to exercise. The limits between State and Federal jurisdiction depend upon the views of five men at any given time; and we have a government of men, and not a government of laws, prescribed beforehand.
At first the court generously exempted from its veto the police power of the several States. but since then it has proceeded to set aside an act of the Legislature of New York restricting excessive hours of labor, which act had been sustained by the highest court in that great State. Thus labor can obtain no benefit from the growing humanity of the age, expressed by the popular will in any State if such statute does not meet the views of five elderly lawyers, selected by influences naturally antagonistic to the laboring classes and whose training and daily associations certainly can not incline them in favor of restrictions upon the power of the employer.
The preservation of the autonomy of the several States and of local self-government is essential to the maintenance of our liberties, which would expire in the grasp of a consolidated despotism. Nothing can save us from this centripetal force but the speedy repeal of the fourteenth amendment or a recasting of its language in terms that no future court can misinterpret.
The vast political power now asserted and exercised by the court to set aside public policies, after their full determination by Congress, can not safely be left in the hands of any body of men, without supervision or control by any other authority whatever. If the President errs, his mandate expires in four years, and his party as well as himself is accountable to the people at the ballot box for his stewardship. If Members of Congress err, they, too, must account to their constituents. But the Federal judiciary hold for life and, though popular sentiment should change the entire personnel of the other two great departments of government, a whole generation must pass away before the people could get control of the judiciary, which possesses an irresponsible and unrestricted veto upon the action of the other departments—irresponsible because impeachment has become impossible, and if it were possible it could not be invoked as to erroneous decisions unless corruption were shown.
The control of the policy of government is thus not in the hands of the people, but in the power of a small body of men not chosen by the people, and holding for life. In many cases which might be mentioned, had the court been elective, men not biased in favor of colossal wealth would have filled more seats upon the bench, and if there had been such decision as in the income-tax case, long ere this, under the tenure of a term of years, new incumbents would have been chosen, who, returning to the former line of decisions, would have upheld the right of Congress to control the financial policy of the Government in accordance with the will of the people of this day and age, and not according to the shifting views which the court has imputed to language used by the majority of the 55 men who met in Philadelphia in 1787. Such methods of controlling the policy of a government are no whit more tolerable than the conduct of the augurs of old who gave the permission for peace or war, for battle or other public movements, by declaring from the flight of birds, the inspection of the entrails of fowls, or other equally wise devices, that the omens were lucky or unlucky—the rules of such divination being in their own breasts and hence their decisions beyond remedy.
It may be that this power in the courts, however illegally grasped originally, has been too long acquiesced in to be now questioned. If so, the only remedy which can be applied is to make the judges elective, and for a term of years, for no people can permit its will to be denied, and its destinies shaped, by men it did not choose, and over whose conduct it has no control, by reason of its having no power to change them and select other agents at the close of a fixed term.
Dean William Trickett, of the Dickinson Law School, in an eloquent and almost vehement article in the American Law Review contends that "if the courts possess the power to declare acts of Congress void, they owe it, not to the intention of the makers of the Constitution, but to what Chief Justice Gibson has termed 'necessity,' which seems to be another name for their own desire." The author uses the term "makers" here to mean the members of the conventions of the states who ratified the instrument framed at Philadelphia; and of course his entire argument rests upon silence, for he does not contend that the conventions reviewed the proposition and decided against it. Perhaps it never occurred to him to inquire what sort of a federal Constitution we should have if the clearly ascertained intention of the "makers" were necessary to the decision of any single point! On the intention of the framers of the Constitution—which from the legal standpoint is, of course, another matter, Dean Trickett is scarcely less decided. After bringing under review the few cases in which state courts had held invalid state statutes previous to the convention of 1787, he continues:
The convention was composed of fifty-five members. Of these thirty-nine signed the Constitution. There is nothing better than a surmise that ten of these gentlemen knew anything of the decisions. Of those who knew, we have no evidence that more than five or six regarded the annulment of statutes a judicial function. We know that Spaight and three or four others did not regard it as such. Shall we assume that the members of the Convention whose sentiment is unknown were divided in the same ratio? It would be sheer imbecility to infer from the preponderance of the numbers who have spoken for, over those who have spoken against, a measure or view, when four times as many as both of these classes of speakers have remained silent, that a majority of the members shared the view of the major part of the speakers.
Of course Dean Trickett does not categorically deny that the majority of the Convention regarded the annulment of statutes as a normal judicial function; but he so minimizes the actual evidence in the matter as to prejudice his readers strongly against any such view.
A more recent critic of the judiciary, Mr. L. B. Boudin, speaks with less reserve than Dean Trickett on the point:
There were undoubtedly some men in the Convention who favored the investing of the federal judiciary with general revisory powers over legislation; but all attempts to make the judiciary part of the legislative power of the federal government failed signally and had to be abandoned by their sponsors. The provisions of the Constitution as they now stand contain no reference whatever to any such powers, either expressly or by obvious implication. And there is ample historical pro of that—whatever the hopes of some, from the complete silence of the document, as to possible future development —the great majority of the framers never suspected that a general power of the judiciary to control legislation could be interpreted into the new Constitution. They evidently assumed that such extraordinary power could not be exercised unless expressly granted.
(Continues...)
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Table of Contents
IntroductionCharles Beard and American Debate Over Judicial Review, 1790-1961
Introduction to the 1938 Edition
1. Attacks Upon Judicial Control
2. The Constitutional Convention of 1787 and Judicial Control
3. Judicial Control Before the Ratifying Conventions
4. The Spirit of the Constitution
5. The Supporters of the New Constitution
6. John Marshall and the Fathers
7. Marbury v. Madison
Appendix
The Constitution of the United States of America
Bibliographies (compiled by Alan F. Westin)
An Historical Bibliography on the Supreme Court's Authority to Pass on the Constitutionality of Congressional Acts
A Selected Bibliography of Public Comments by Members of the Supreme Court About the Powers of Judicial Review, 1790-1961