Revolution in the Supreme Court
I
IN this day when democracy all around us has succumbed to authoritarian tyrannies, we are smugly grateful for a Constitution to guarantee our freedom and a Supreme Court to protect our liberties. We are wont to assume that so long as we preserve our Constitution and the independence of our judiciary our system of government will endure. To our complacent thought, despotism from perversion of our cherished institutions is indeed remote.
But recently we have been told that the Supreme Court itself is undermining our Constitution! An opinion of the Court is called ‘subversive doctrine’ which may ‘give potency to the efforts of those who apparently hope to end a system of government found inhospitable to their ultimate designs.’
This accusation is not that of a mere demagogue or theorist or crackpot. It is spoken from the bench of the Supreme Court itself. The quoted words are those of two dissenting justices in formal opinion in a case decided April 17, 1939. Their charge is serious. They solemnly speak of the ‘utter absurdity’ of the view taken by the majority of the Court, and they grimly declare that the decision ‘permits disruption of our federated system.’ In the view of the dissenting justices the Court is willfully disobeying the supreme law of the land: ‘Of course, no such result [as that reached by the Court] was intended by those who framed the Constitution.’
Are these assertions true? Have we cause for alarm? Is the Supreme Court deliberately breaking down the federal system? What is it that the majority of the Court is permitting which causes such apprehension? If our system of government is undergoing rapid and fundamental change, what is its nature, what are its causes, and what are its consequences likely to be?
Probably we cannot adequately answer these questions, for the field is so highly charged with controversy that any attempted answer must be largely subjective. But these vital questions deserve wider recognition and demand discussion. For our Constitution is fundamentally different from what it was when the President’s Supreme Court plan was announced in February 1937.
II
Yes, the Constitution has changed. True, it has not been amended through the difficult process of state ratification. But the changes wrought in the Constitution in the last three years are sweeping and fundamental.
The Constitution of the United States is, as every alert schoolboy should know, something more than the mere document. For instance, one may search the document in vain for an answer to the question whether we may have a valid AAA. But the Constitution we had in 1936 prohibited an AAA. We know this, because the Supreme Court so held. The Constitution we have in 1940 permits a valid AAA. Again, our informer is the Supreme Court itself. The words of the document remain the same, but those words are not determinative. The words that count are those of the order entered by the Supreme Court in the test case. The real Constitution is the one that nullifies or sustains legislation. And the document rarely does that. The effective Constitution, the one that controls the fate of New Deals and Old Deals, of worthy or unworthy state or federal enactments, is largely Court-made. The document is only a jumping-off place. The Constitution is found in the three hundred volumes of reports of United States Supreme Court decisions, and in the minds and emotions and predilections of the living justices.
The clauses of the document relevant to the AAA question are quite unilluminating: ‘The Congress shall have power to lay and collect taxes ... to pay the debts and provide for the common defense and general welfare of the United States. . . .’ ‘The Congress shall have power ... to regulate commerce . . . among the several States. . . Can the answer to the constitutionality of the AAA be found in these clauses? Mr. Justice Roberts, in behalf of the majority of the Court in 1936, asserted that it could: the duty of the Court, he said, is ‘to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.’ But Mr. Justice Roberts was only paying lip service to a time-honored fiction; his opinion shows that he did not believe that the result could be found in the words of the document. One need not be learned in constitutional theory to recognize the truth of Judge Learned Hand’s statement about the judge who interprets a Constitution: ‘The words he must construe are empty vessels into which he can pour nearly anything he will.’ Or, in Mr. Justice Frankfurter’s phraseology, the task ‘is a function not of mechanics but of imponderables’ and not merely involves the meaning of words but invites ‘judgment upon ultimate issues of society.’
III
So it is no exaggeration to say that during the past three years we have been given a new Constitution. Since that hot summer of 1787 when fifty-five men gave us our original Constitution, we have in truth had many Constitutions, although the document itself has been only slightly changed. During the first third of the nineteenth century John Marshall gave us a Constitution largely different from that created in 1787. If Spencer Roane had been Chief Justice in Marshall’s place, the Marshall Constitution, with its strong central government, might never have been established, the Union might not have endured, the Civil War might not have been fought, and what is now the United States might be two or a dozen nations or a loose confederacy. During the second third of the nineteenth century the Taney Court wove into the Constitution a point of view materially at variance with that of Marshall. A later Court was strongly actuated by a desire to remove Civil War scars left on our federalism, and still later a laissez faire economic philosophy was read into the Constitution. Nothing in the document accounts for Marshall’s Constitution or Taney’s. No words in the instrument required the post-Civil War attitude. And certainly neither the paper written in 1787 nor the amendment added in 1868 calls for laissez faire. The real Constitution draws its lifeblood not from the document but from the men who give the document its meaning. The Supreme Court is a continuous constitutional convention, and the nine statesmen we call justices are constantly moulding the Constitution and the consequent course of history. Before 1937 the process had always been one of gradual reworking of our organic law, with sporadic abrupt overruling and shifts of emphasis or direction. Never before in history has the Court so extensively altered so many basic principles in so short a time as in the three years since February 1937. And the reconstruction is still in process.
The Constitution we had in 1936 contained a Fourteenth Amendment which prohibited legislation fixing minimum wages for women. The Court said such legislation was ‘so clearly the product of a naked, arbitrary exercise of power that it cannot be allowed to stand under the Constitution.’ Of course, the Fourteenth Amendment of our new Constitution does not prohibit minimum-wage legislation. In fact, the Constitution was so clear in 1937 that the Chief Justice, in behalf of five justices, declared: ‘The principle which must control our decision is not in doubt.’ The Constitution had changed. The view the Chief Justice had expressed in dissent the year before was now the prevailing view: ’I can find nothing in the Federal Constitution which denies to the State the power to protect women from being exploited by overreaching employers. . . All the while, the only relevant words of the document were: ‘Nor shall any State deprive any person of . . . liberty . . . without due process of law.’
Under the old Constitution, state and federal governments could not tax each other’s instrumentalities. For example, the states could not tax the old United States Bank, nor tax the sale of gasoline to the Coast Guard. This doctrine began in 1819, not in 1787, for the document does not mention the question. The doctrine is a product of the mind and will of John Marshall, not of the framers of the original instrument. Marshall said, ‘The power to tax involves the power to destroy,’ and down through 1936 Marshall’s dictum was a part of the Constitution. But in the fall of 1937 the Court permitted a state to tax payments made by the federal government to the builder of a dam, and the dissenting justices quite rightly said, ‘The judgment seems ... to overrule, sub silentio, a century of precedents.’ Then, in the spring of 1939 the Constitution was radically altered when the Court went further and expressly overruled a century of precedents. The old Constitution never permitted the state and federal governments to tax salaries of each other’s employees, but the new Constitution does allow this. Marshall’s dictum is no longer a part of the Constitution. Instead, Holmes’s earlier statement in dissent is incorporated in the Constitution: ‘The power to tax is not the power to destroy while this Court sits.’ In other words, the power to tax does not now involve the power to destroy unless the Supreme Court thinks that the particular destruction ought to be permitted.
Our 1936 Constitution, as we have already observed, did not permit an AAA. The reasons given by Mr. Justice Roberts are especially significant: ‘Powers not granted arc prohibited. None to regulate agricultural production is given, and therefore legislation by Congress for that purpose is forbidden. It is an established principle that the attainment of a prohibited end may not be accomplished under the pretext of the exertion of powers which are granted.’ The Court accordingly annulled the original AAA, in which Congress had employed its taxing and spending power to regulate agriculture. The Court’s definitive statement, that Congressional regulation of agriculture was forbidden seemed to some to be rather conclusive. But Congress, wisely recognizing that our Constitution is not static and that the 1936 Constitution would not necessarily endure, tried again, this time using the interstate commerce power, on the theory that limiting the amounts of commodities marketed in interstate commerce would effectively limit production. Of course, under the 1936 Constitution, that was a palpable attempt to attain ‘a prohibited end . . . under the pretext of the exertion of powers which are granted.’ But by 1939, when the question was again presented to the Court, the Constitution had changed. No longer was Congress powerless to regulate agriculture through exerting a granted power, for Mr. Justice Roberts declared in behalf of the 1939 Court: ‘The motive of Congress in exerting the power is irrelevant to the validity of the legislation.’ The document at all times was silent about Congressional motives, but the motive was decisive in 1936 and irrelevant in 1939.
Congress wanted to regulate labor relations in producing industries. One measure attempting this was the first Guffey Act, applicable to the soft-coal industry. In 1936 the Guffey Act; was unconstitutional, for labor relations in a producing industry have only an indirect effect upon interstate commerce. But in 1937 the Wagner Act was constitutional, for labor relations in a producing industry have a direct effect upon interstate commerce. Since the pivotal factor in both cases, whether the effect is direct or indirect, is not mentioned in the document, the document remained the same, but the Constitution changed. Despite the 1936 decision that the effect was indirect, the Chief Justice in 1937 was very emphatic to the contrary: ‘It is idle to say that the effect would be indirect or remote. It is obvious that it would be immediate and might be catastrophic. We are asked to shut our eyes to the plainest facts of our national life and to deal with the question of direct and indirect effects in an intellectual vacuum.’ Ever since this 1937 enlightenment it has seemed strange to look back to the old Constitution of 1936 and before, under which we dealt with such questions in an intellectual vacuum.
The old Constitution forbade both federal and state legislation outlawing yellow-dog contracts. Such legislation was a denial of freedom of contract in violation of the due-process clauses. The Constitution protected the ‘right’ of the employee to agree not to join a union. The old Constitution ignored the protest of Mr. Justice Holmes that such legislation was designed ‘ to establish the equality of position between the parties in which liberty of contract begins.’ The new Constitution takes into account a practical economic freedom instead of an abstract theoretical one; it permits Congress and the states to outlaw the yellow-dog contract and many other unfair labor practices as well. In fact, the new Constitution sometimes seems to require as much straining of judicial verbalisms to sustain legislation sponsored by labor as the old Constitution used to require to invalidate such legislation.
Under the old Constitution, for the federal government to tax a federal judge’s salary was wrongfully to diminish his compensation while in office and thereby to jeopardize the independence of the judiciary; under the new Constitution such a tax is only a recognition that judges are also citizens.
One of the most, curious limitations of the 1936 Constitution rendered the first municipal bankruptcy act unconstitutional. This act gave the states a power which they would not have without the act, the power to permit municipalities and other subdivisions of the states to reorganize in bankruptcy. The act could have no effect upon any state or upon any subdivision of any state unless both the state and the subdivision expressly consented. But the Court held in 1936 that the act violated the old Constitution’s prohibition against invading states’ rights. Of course the new Constitution, according to a 1938 holding sustaining substantially similar legislation, recognizes that adding to the power of a state cannot constitute an invasion of states’ rights.
One 1938 decision not involving New Deal legislation jolted the legal profession by holding that the Supreme Court itself, in an unbroken line of decisions extending over ninety-six years, had been consistently acting unconstitutionally in applying its own law instead of state law in certain cases. The old Constitution permitted the practice, but the new one did not. The old Constitution was unconstitutional under the new Constitution.
The Fourteenth Amendment of the old Constitution did not permit multiple taxation. For example, two or more states could not impose their inheritance or estate taxes on the same transfer of property by a decedent to his beneficiaries. In a leading case, the Court had held: ‘We conclude that shares of stock, like other intangibles, constitutionally can be subjected to a death transfer tax by one state only.’ But by 1989 the Constitution had changed, for two states taxed the same transfer, and the Court held: ‘ We cun find nothing in the history of the Fourteenth Amendment and no support in reason, principle or authority for saying that it prohibits either state, in the circumstances of this case, from laying the tax.’
The old Constitution disliked picketing. So vehement was its antipathy to picketing that legislation designed to permit picketing (by curbing the injunction power of courts) was unconstitutional. The new Constitution, of course, renders such legislation constitutional. But it goes even further! Since April 1940, not only is a statute permitting picketing valid, but a statute prohibiting picketing is invalid. Under the old Constitution the legislatures, the representatives of the people, had no choice; they could not permit picketing. Under the new Constitution legislatures have no choice; they cannot prohibit picketing. The result which used to be prohibited is now not only permitted but required.
The document does not specifically say so, but the Constitution has long contained a limitation upon delegation of legislative power. This means that Congress must do its own legislating and not give too much of its power to others. The NIRA gave the President powder to prohibit shipment of ‘hot oil’ (oil produced in violation of state laws) in interstate commerce. The delegation was a small one, the President’s discretion very narrow; nevertheless it was held bad in 1935. A much more sweeping delegation was made by the Marketing Act of 1937, in which Congress gave the Secretary of Agriculture power not merely to determine whether and when a welldefined Congressional prohibition should become effective, but permitted the Secretary to decide what commodities should be regulated, the areas of regulation, the time of regulation, and, within limits, even the character of regulation, including the perilous price-fixing power. Although under the 1935 Constitution the Marketing Act would almost surely have fallen, the Constitution as it existed in 1939 did not prohibit the delegation. Dissenting justices gravely declared: ‘This is not government by law but by caprice. . . . To us the outcome seems wholly incompatible with the system under which we are supposed to live.’
IV
These are not examples of mere details. They concern fundamentals of the first magnitude. They are not just shifts in attitude in the application of old principles. They constitute modification and even complete rejection of the principles themselves. Some of the basic doctrines abruptly cast aside have been developed in scores of prior decisions. Time and again the dissenters have been heard to protest that the decision of the majority ‘overrules a century of precedents.’
The changes already wrought extend beyond the scope of specific decisions thus far rendered. In the adjudicated cases one may study the temper of the Court and discern bases for prediction that other doctrines not vet passed upon are destined for modification or annihilation. The Court has never sustained minimum-wage legislation for men, and the opinion upholding regulation of women’s wages relies heavily upon differences for this purpose between men and women. Yet no careful student of constitutional law would hesitate to predict that minimum-wage legislation for men will be sustained. The Court has never held that the commerce clause is broad enough to validate the main features of the federal Wages and Hours Act, but one can hardly imagine an adverse holding by the Court as now constituted. The doctrine that the Constitution requires that a court have opportunity to review de novo a commission’s valuation of public utility property for rate-making purposes when confiscation is claimed was established in 1920 and reaffirmed in 1936, but this doctrine can hardly be regarded as present law even though the Court has not yet had opportunity to reject it. The states and the nation have consistently been denied power to tax income from each other’s securities, but most informed lawyers would probably predict that the Court will now permit the federal income tax to be applied to income from state and municipal securities. If and when Congress decides to regulate insurance companies, old precedents holding such regulation beyond Congressional power may be easily brushed aside.
V
Chief Justice Hughes’s now famous statement that ‘the Constitution is what the judges say it is’ surely has been abundantly demonstrated during the past three years. But this fact has become almost commonplace. The vital inquiry now is into the inner meaning of the abrupt and sweeping reversals. Do the changes constitute mere differences of opinion between present and past justices on many unrelated issues, or does a consistent basic philosophy underlie the recent decisions? What, if any, is the common denominator of the overrulings on the numerous and seemingly diversified questions?
Of course, attempting to generalize so broadly is exceedingly dangerous. The very fact that most of the key cases are decided by a divided Court reflects the difficulty of the individual problems — an intricacy which our oversimplified summary no doubt belies. And the new development is too recent and too rapid for even a pretense of perspective. Furthermore, many readily apparent uncertainties must immediately confound any attempt to portray satisfactorily the collective mind of a majority of the present justices.
How deep-seated is the militancy of Mr. Justice Black? Is Mr. Justice Reed already showing signs of reverting to the conservative thought that might be expected of one with his background ? Will Frankfurter the judge consistently cling to the thought of Frankfurter the teacher, the philosopher, the comment ator? And even if we can guess intelligently where Mr. Justice Douglas stands on many questions, what basis have we for predicting the direction in which his thought will develop? What is the significance of the belief in some quarters that the Black brand of liberalism has sometimes seemed to push Mr. Justice Stone rightwards? Who is this man Murphy, and who can guess how he will behave? Above all, will Roosevelt or will a conservative successor of Roosevelt fill new vacancies?
Whether we like it or not, answers to these questions, and others like them, are the stuff of which the Constitution of the coming years will be carved. For ours is a dynamic Constitution ever sensitive to influences from all sources upon the intellectual and emotional processes of a majority of the living justices. Our government, so far as our organic law is concerned, is in t he deepest and truest sense a government of men and not of laws. And only through an adequate understanding of the minds of the men who are sitting in the seats of judicial power can we discern the shape of the Constitution under which we live. But, despite all such necessary misgivings about the many pitfalls of prediction, it seems reasonably safe at this time to hazard some generalizations about the philosophy of our new Court. The best approach is to look back to the 1936 Court and ascertain the kind of thought against which a majority of the present justices have so vigorously revolted. For, whatever their affirmative attitudes may be, we may be sure that a majority of the present justices are united in rejecting some of the fundamentals adhered to by their predecessors.
VI
How we should have dealt with the national economic emergency we faced in 1933 and whether or not New Deal recovery and reform measures have been desirable are, of course, questions on which intelligent opinions differ. But no one can deny that a majority of the representatives of the people have for the most part genuinely sought to meet the apparent crisis by enacting legislation that seemed to them appropriate. If we had an objective measuring stick, some enactments might be found wise and some unwise, but that is not the question. The problems were baffling. No unerring source of wisdom existed. Demands for action were urgent. New problems had to be solved without benefit of previous experience. Hasty action was dangerous, but failure to act might bring greater perils. The trialand-error method was a necessity. We tried an NIRA, whether wisely or not. We passed a Securities Act, despite grave constitutional doubts. We started a CWA, a PWA, and later a WTA. A majority of our representatives thought, rightly or wrongly, that an AAA was desirable, and a Guffey Act, and a Wagner Act, and a Social Security Act.
Nearly all these measures were founded upon two premises not susceptible of absolute and objective proof: that if the economic machine is out of adjustment it is the business of government to interfere, and that the maladjustment was national and therefore ought to be dealt with by the federal government. But the nine judicial governors did not agree with these premises. To a dismaying extent they undertook to deny to government the power to govern. The NIRA was unconstitutional. The AAA was struck down. The Guffey Act was bad. The original farm mortgage moratorium act, and the municipal bankruptcy act, and the railway pension act were in turn given the death sentence. Apprehension of national catastrophe from unconstitutionality of gold-clause legislation pervaded business. Fifty-eight Liberty League lawyers unanimously agreed, gratuitously, that the Wagner Act was invalid. Even the states could not prescribe minimum wages, whatever might seem to t hem the urgent necessity. Legal scholars discussed pro and con the constitutionality of the Social Security Act; no scholarship, no skill, no insight could offer assurance until a majority of nine men had spoken. The government’s constitutional lawyers were coming to believe that neither the nation nor the states could adequately cope with problems of economic dislocation — unemployment, excessive competition, monopoly, child labor, wages, hours, collective bargaining, fraud in securities, agricultural overproduction, social security. The government was in the grips of judicially induced political paralysis.
Not the constitutional document, but the Court, stood in the way. This could not be so easily demonstrated at the time, but. developments since have made this fact abundantly clear. The obstacles to a planned economy were in large measure the economic views of legally trained men who were not economists, laissez faire economic views that collided head-on with prevailing thought. Furthermore, those views frequently did not rest upon thorough investigation of existing evils and careful study of possible remedies, but, instead, usually seemed to draw their principal sustenance from abstract half-truths developed in former centuries. A majority of nine men in black robes were finding their own wisdom superior to the wisdom of the people’s representatives, and legislative policies were nullified, one by one.
A statement made by Mr. Justice Holmes years before reechoed: ‘This case is decided upon an economic theory which a large part of the country does not entertain.’ Mr. Justice Stone in dissent called the AAA decision a ‘tortured construction of the Constitution’ and declared that certain suppositions of the Court were ‘addressed to the mind accustomed to believe that it is the business of the courts to sit in judgment on the wisdom of legislative action. Courts are not the only agency of government that must be assumed to have capacity to govern.’ Mr. Justice Brandeis’s earlier observation that the Court was constituting itself a ‘super-legislature’ was quoted and requoted. The Harvard professor of constitutional law declared of one opinion: ‘Predilection for policy raises its voice in adjective after adjective, in reason after reason. . . .’ The Columbia professor of constitutional law wrote that ‘an unbiased mind, jealously interested in the proper functioning of our institutions, including the institution of judicial control . . . can hardly escape the conclusion that the Court was determined to kill this law no matter what sacrifice of logic and reasoning was necessary in the process of torturing the Constitution to that end.’
Hundreds of proposals were being made for amending the document. But it was not that instrument that stood in the way; it was the Court. Robert H. Jackson expressed the futility of amending the document by saying: ‘It is difficult to amend a constitution to make it say what it already says. . . . Judges who resort to a tortured construction of the Constitution may torture an amendment. You cannot amend a state of mind. . . .’
Then, in the spring of 1937, the tide suddenly turned. Government regained the power to govern. Legislators once again could grapple with economic dislocation. And the federal government could deal with national problems. Probably we shall never know specifically what caused the abrupt about-face. The answer seems to lie in a combination of circumstances, and no one can prove that any single factor was decisive. The 1936 election returns must have contributed. But surely the President’s suggestion that his Court plan lost a battle and won a war is not without merit. Some wit has resurrected an apt quotation from Fielding: ‘He . . . would have ravished her, if she had not, by a timely compliance, prevented him.’
VII
The reconstructed Court dates from about the time of the announcement of the President’s plan, despite the fact that changes in personnel did not occur until later. But as soon as Black and Reed had succeeded Van Devanter and Sutherland the enduring character of the revolution in the Supreme Court was unmistakable. The later succession of Frankfurter and Douglas to the places of Cardozo and Brandeis probably did not substantially shift the balance of power, and the change from Butler to Murphy probably only further clinched what had already been achieved.
The revolution consists in part in the willingness of the present. Court to reexamine established principles and to overrule all precedents which do not seem to it to be justified, on a purely pragmatic basis, by present needs. No longer does Mr. Justice Sutherland’s attitude control: ‘The meaning of the Constitution does not change with the ebb and flow of economic events.’ Mr. Justice Frankfurter in one opinion implies contempt for that mischievous philosophy by his references to ‘sterile refinements unrelated to affairs, ‘ to ‘what Lincoln called “pernicious abstractions,”’ to ’the web of unreality spun from Marshall’s famous dictum.’ When in 1938 the Court whittled down the doctrine of intergovernmental tax immunity, Mr. Justice Black wrote a concurring opinion asserting that the entire doctrine should be reviewed and reexamined. A year later Mr. Justice Black’s view prevailed; the doctrine was frankly repudiated. When Mr. Justice Stone wrote a careful opinion in 1939 probing to the roots of the wellsettled rule that a state may not tax Interstate commerce but concluded that the precedents were sound as applied to the case before the Court, McReynolds and Butler cited cases and huffily declared in a concurring opinion: ‘Reversal appropriately may be based on citation of these decisions without more.’ These justices were not willing to reconsider the reasons for an established rule even if the Court concluded that the precedents should be followed.
The persistent attitude of the dissenters is well stated by Mr. Justice Butler: ‘I cannot refrain from protesting against the Court’s refusal . . . reasonably to adhere to principles that have been settled. . . . Generally speaking, at least, our decisions of yesterday ought to be the law of today.’ Sometimes the bitterness in dissent crops out in the form of remarks with a personal flavor. When Mr. Justice Frankfurter, in behalf of seven justices, wrote a masterly opinion concluding that ‘any distinction, as such, between “negative” and “affirmative” orders . . . serves no useful purpose, and insofar as earlier decisions have been controlled by this distinction, they can no longer be guiding,’ the minority justices sourly complained: ‘The Court’s discussion, extraneous to the issue involved, confuses rather than clarifies.’
Over the protests of the dissenting justices, who seem resolutely to believe that economic and social problems of the present industrial order must be solved by applying fine-spun logomachy to the judgments of the days of handicraft, the Court is now for the first time truly practising what Mr. Justice Stone has called ‘ that creative art by which law is moulded to fulfill the needs of a changing social order,’ on the theory that ‘the law must draw its vitality from life rather than the precedents.’ At last the prediction Mr. Justice Holmes made in 1897 has come true: ‘For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.’
VIII
The old Constitution exalted abstractions, worshiped the printed word, venerated the static wisdom of the past, and stubbornly clung to the philosophy of individualism. The new Constitution impatiently rejects time-honored dogma in favor of newborn pragmatic judgments. It emphasizes facts instead of abstractions and draws heavily from recent experience instead of from interpretations of empty formulas of bygone days. The new Constitution permits governmental experimentation which, in furthering social objectives, may even seriously jeopardize the interests of private property. Many critics will see as the dominant feature of the new Constitution increased power of the central government; others will emphasize the narrowing of the domains of regulation into which no governmental authority, national, state, or local, may enter. Some will be satisfied with the loose and easy explanation that the new Constitution is more ‘liberal’ than the old.
Much more than is commonly recognized, the old Constitution was unsympathetic toward the interests of little men. Henry W. Edgerton, now Judge of the Court of Appeals for the District of Columbia, in an irresistibly convincing study published by the Cornell Law Quarterly in 1937, carefully analyzed all pre-New Deal decisions of the Supreme Court annulling acts of Congress and summarized his findings: ‘One group [of decisions] protected mistreatment of colored people; another group protected businesses or business methods hurtful to the majority; another, comprising employers’ liability, workmen’s compensation, minimum wage, child labor, and union membership cases, protected owners of business at the direct expense of labor; another protected owners of business against taxation; another protected the recipients of substantial incomes, gifts, and inheritances against taxation; and other cases protected the interests of property owners in other ways. Not many cases of any importance fall outside these categories. . . . There is not a case in the series which protected the “civil liberties” of freedom of speech, press, and assembly; on the contrary, over the protest of Holmes and Brandeis, the Espionage Act was not merely upheld but extended by the Court. There is not one which protected the right to vote; on the contrary, Congressional attempts to protect the voting rights of Negroes were defeated by the Court. There is not one which protected the vital interests of the working majority of the population in organizing or in wages; on the contrary, Congressional efforts to protect those interests were frustrated by the Court.’
Will the new Constitution react against t he asserted one-sidedness of t he old Constitution by proving to be partisan on the other side? A more crucial question cannot be asked. Yet no definitive answer is possible. We know that the new justices, like all their predecessors, have biases. We know that those biases will inevitably be one of the many ingredients of the constitutional compound of the future. And we know something of the general direction of those biases. But what we do not know is the extent to which the new justices can successfully divorce the function of judicial review of legislation from their own personal predilections. A judge who has sufficient strength of will and intellectual integrity can sustain legislation which he abhors, recognizing that under the Constitution the formulation of policy is for the legislative rather than for the judicial department. Mr. Justice Holmes accomplished this. Professor Corwin has observed that the achievement of Holmes was ’the deflation of the badly swollen pretensions of the Court to a transcendental wisdom.’
Whether the new justices will transcend their own views on questions of legislative policy can be revealed only in decisions passing upon statutes known to be distasteful to the justices. Not until April 1940 were the new justices given opportunity to show their mettle on this question. Their performance at least invites thoughtful skepticism. The Alabama legislature and a California municipality had made certain picketing unlawful. The legislators thought the picketing should be prohibited. The Court thought otherwise. The legislative will was thwarted, on the ground that it transgressed against the words ‘due process of law.’ Whether we should agree or disagree with the view of the legislators is not the question. Whatever we may think of that view (and the writer despises it), we must recognize that, right or wrong, it is widely held. Many states at one time or another have prohibited comparable picketing, either by legislation or by judicial decision. For example, in 1938 the highest court of New Jersey unanimously decided as a matter of policy that similar picketing should be enjoined. The Alabama and California legislators were merely seeking to effect a result which had been reached in many states by judicial decision. Indeed, their general point of view had once been taken by the Supreme Court itself. And the new Constitution now prevents that view!
The undeniable fact is that, whatever the merits and demerits of anti-picketing legislation may be, a substantial difference of opinion exists among citizens, among legislators, and among judges. But the new Constitution, we are told, allows no room for difference of opinion on this question.
To attribute unreasonableness to a large portion of one’s fellow men is hardly a manifestation of what one of the justices has called ‘the humility not to set up [the Court’s] judgment against the conscientious efforts of those whose primary duty it is to govern. . . One can almost hear Mr. Justice Holmes protesting as of old, when a reactionary Court was setting aside ‘radical’ measures: ‘But a constitution ... is made for people of fundamentally differing views.’
Are we, then, to believe that the new Constitution, like the old, requires the policy views of the justices to be forced upon the people’s representatives? Happily, this conclusion is not yet warranted. The one pair of picketing decisions of April 1940 does not afford a sufficiently broad foundation for so sweeping a generalization. In the perspective of time these decisions may appear quite exceptional. Furthermore, substitution of judicial for legislative judgment is much more readily justifiable when the Court is seeking to protect civil liberties than when the Court is merely choosing between competing economic policies. And in the Court’s view the display of a banner announcing facts of a labor dispute is the kind of freedom of expression which the Constitution should protect. One may think that prohibition of picketing only in the area around the employer’s business is not an undue abridgment of freedom of expression, but there are no absolutes, and who is to say?
In the realm of civil liberties the new Constitution requires the justices to be bold, not humble. Mr. Frank J. Hogan, in his presidential address to the American Bar Association last summer, developed the thesis that the Supreme Court has freed Congress ‘from all but a very few constitutional fetters on its exercise of power’ and that therefore ‘reliance against the exercise of arbitrary power must be placed by the people henceforth in the legislative rather than in the judicial department of the National Government.’ Although this thesis seems to be thoroughly sound with respect to what Mr. Hogan calls ‘economic freedom,’ the judicial department under the new Constitution probably goes even further than the old in protecting civil liberties. Recent decisions, including the picketing cases, abundantly demonstrate that more than ever the judiciary may be relied upon to defend civil liberties. The problem raised by the picketing cases is not whether judicial power should be aggressively wielded to preserve freedom of expression, but whether the predominant element of the picketing legislation was economic policy rather than free speech.
We may still confidently hope and expect that the new Constitution will embrace the principle which Mr. Justice Roberts somewhat disingenuously stated in 1936 when the Court invalidated the AAA: Congressional policies will prevail unless ‘by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress.’ Our new Constitution may at last permanently demolish the judicial oligarchy which has periodically sprung up under the old. Perhaps our new Constitution will be moulded with understanding of and tolerance for whatever legislative policies may at any time genuinely be favored by the people’s representatives.
That was the prime tenet of Mr. Justice Holmes’s Constitution. Will our new Constitution measure up to the Holmesian standard ?