The Charlotte News



Whose Shall Be:

"The Ultimate Power"

--A Criticism, By W. J. Cash

Site ed. note: Cash's reference here favoring use of the interstate commerce clause over the due process clause to regulate monopolies and economic practices generally (so-called "substantive due process") represents the view which eventually won the day--though by decisional usage and not amendment to the Constitution.

The commerce clause was in fact used starting in the 1964 Supreme Court case of Heart of Atlanta Hotel v. U.S. to overrule the states' rights claim that segregation could be practiced by the states under the "police powers" of the Constitution afforded the states in the Tenth Amendment, the power to regulate health, morals, safety, and welfare issues not reserved to the federal government or prohibited to the states by the Constitution. The Court held that since travellers are in interstate commerce, interference with which is subject to federal regulation by the commerce clause, allowing hotel owners, and implicitly restauranteurs and other businesses catering to the public generally, to discriminate affected and interfered with interstate commerce and thus was subject to regulation by the federal government, its laws taking, under the "supremacy clause" of the Constitution, (i.e., Article IV, (2): "This Constitution, and the Laws of the United States which shall be made in pursuance thereof... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." [Emphasis added.]), precedence over any state law passed pursuant to any power afforded the state by the Tenth Amendment.

Cash's references to "the proposal" of Roosevelt is to the so-called "court-packing plan" unveiled in 1937, (and trounced ultimately in Congress), whereby the Court would be expanded to add up to six new justices, one additional justice for every justice refusing to retire at age 70, to alleviate what Roosevelt criticized as a too-heavy backlog of cases for the aging justices, the most inimical of whom to FDR policy Cash makes mention below. The gravest Constitutional crisis of Roosevelt's twelve years being the upshot, there was plentiful talk of impeachment and "King (or Tsar) Roosevelt". Tension between the Administration and the largely Republican-appointed Court had mounted in the mid-Thirties as one part of the New Deal after another, principally the National Recovery Act, was struck down by the Court as unconstitutional. The crisis resolved itself as gradually the "nine old men", as Administration allies called them, died or retired--Willis Van Devanter in 1937, George Sutherland in 1938, Pierce Butler in 1939, Charles Evans Hughes and James McReynolds in 1941, and Owen Roberts in 1945--paving the way, with the retirement also of more Administration-friendly Benjamin Cardozo and Louis Brandeis, ultimately for Roosevelt to appoint nine justices to eight seats in all, (one overlapping his own prior appointment of James Byrnes and one being the elevation in 1941 of Coolidge-appointed Harlan Fiske Stone from Associate Justice to Chief Justice to replace Hughes)--a number of appointments equalled only by George Washington--ultimately constituting probably the most liberal Supreme Court in the country's history, including such noted civil libertarians as Hugo Black, William O. Douglas, Felix Frankfurter, and Frank Murphy--a Court whose presence continued to be exerted to the retirement of Douglas in 1975, and whose decisions vastly affected and changed the society in which we live today.

It should be noted that Cash's underwriting of the reviewed work's argument that the Supreme Court "usurped" an extra-constitutional power of striking down the laws of Congress probably underscores that Cash was better for it to have pretermitted his legal education one year into the thing; for the proposition that such a power was usurped is rebutted quickly by a logical reading of the document itself and no credible historian with a legal education behind could make the argument to the contrary with a straight face, viz., Article III, Section 2 (1): "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States, between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or subjects. [Emphasis added.]

"(2) In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." [Emphasis added.]

The key words for lawyers and legal scholars here are "arising under": just what cases do arise under the laws of the United States or under the Constitution is debated to this day, but generally requires a case with some substantial legal question involving directly a federal law or some right alleged to be guaranteed by the Constitution which is in some way being infringed by a state or local law or by a governmental entity. But the fact that the Supreme Court enjoys appellate jurisdiction over all such cases "both as to Law and Fact" expresses very clearly the intention of the framers to enable the Supreme Court to review and interpret laws, and, when read with the Supremacy Clause, logically mandates the power to strike down as unconstitutional all laws deemed violative of the Constitution.

It is true, however, that A Great Debate ensued for fourteen years post-ratification with the initially weak Supreme Court vying for position vis vis Congress and the President, and not until during John Marshall's reign as Chief Justice, 1801-1835, and the landmark case of Marbury v. Madison in 1803 establishing the right of judicial review, did the Supreme Court acquire its full Constitutionally-mandated powers under Article III--a different thing, however, from saying that such was usurped from without the document.

It is also true that the document, however, does not explicitly state that the Court has the right to overturn federal laws which it declares unconstitutional. But... Would we accept as logical that the framers meant for us to live at the whimsy of each elected Congress, such that Congress could, despite the carefully delineated and lengthy procedures set forth for amendment of the Constitution, by a majority vote on any given bill, pass into law an incontestable piece of verbiage which violates the Constitution? indeed, which declares the Constitution sine die void? (To those who think it ought be so on laws which you feel ought be constitutional but have been declared not so, think on how you might feel if Congress passed a bill tomorrow making it a federal crime to speak out against the party now controlling Congress--with the assumption in mind that you support another party!) And, of course, the supremacy clause, as quoted in full above, does expressly state, "This Constitution, and the Laws of the United States which shall be made in pursuance thereof... shall be the supreme Law of the Land..." Implicit in the clause is that laws passed by Congress must follow the precepts laid down in the Consitution.

Usurpation? Mr. Cash--like most non-lawyer journalists and historians when the law, be it a ass or not, is discussed--does not have the point this time, but nevertheless makes some interesting points along the way. And he does, of course, support wholeheartedly Marshall's conclusion, even as he appears to misunderstand the basis on which Marshall arrived at it.


A BOOK which every American ought to be reading these days is Morris L. Ernst's "The Ultimate Power." For it is the clearest exposition of the story of the Supreme Court which has ever appeared in print. It is the only one I have seen, indeed, which is not either a piece of servile adulation or a piece of hysterical denunciation.

Some of the columnists have tried their best to tell them better, but most people seem still to labor under the notion that the power to pass on the constitutionality of the acts of Congress is granted to the Court by the Constitution itself. But, as Mr. Ernst demonstrates at length and conclusively, it in fact does no such thing and moreover, it was probably not intended that the power should be deduced from the vague language used, though some of the Federalists among the Fathers no doubt secretly hoped that such would be the case. This power of the Court, as it exists today, is strictly an usurped power, which has no other sanction than that of long use and of long acquiescence in its use by the American people.

John Marshall's Bitter Hatred

Further, as Mr. Ernst makes clear, its original usurpation was undoubtedly due to John Marshall's bitter hatred for the whole Democratic theory, and to the will of the Federalist minority to block the Democratic majority of the nation, under the leadership of Jefferson.

Further yet, the power has been pretty consistently used ever since to advance the Federalist theory of government, which, in its simplest terms, is merely the theory that wealth and business ought to have complete mastery and a perfectly free hand, and that it is the part of the non-property-owning classes to take what they are given and like it. For a very long time, that meant in practice that the decisions of the Court tended to increase the power of the central government. But when the occasion demanded, as in the celebrated Dred Scott case, there was little hesitancy about reversing this trend in asserting the most rigid concern for States' Rights. And in our own time, of course, we are being treated to the spectacle of the complete about face and an ever more and more tender regard for States' Rights. But, and though there have sometimes been genuinely Liberal and democratic decisions, the prevailing tendency has undoubtedly been, as has been said, to bolster up the Federalist (or Liberty League) theory.

Oh No, Not Shysters

Does Mr. Ernst charge, then, that the men who have sat on the Supreme Bench have been, from Marshall down, a gang of shysters? He charges nothing so nonsensical. He is perfectly aware that they have generally been men of integrity, men who were quite honestly convinced that they knew better than the nation generally, and that, whether it jibed with democratic theory or not, what they were about was the only right thing. It is that recognition which makes his story of the Court the superior performance that it is.

But Mr. Ernst does recognize that we have at length reached impasse: that all about us private despotisms, fundamentally indistinguishable from the great European baronies of the Eleventh century, are springing into being and reducing the democratic theory to palpable mockery; that a President has been elected with an overwhelmingly clear mandate to bring these private despotisms under the sway of the general will, and to restore democracy as something more than a name--and that straight across the path of this mandate stand justices Van Devanter, Sutherland, Roberts and McReynolds, with Chief Justice Hughes very likely to be found at their side. Mr. Ernst recognizes that this is intolerable, that this dilemma must be solved, that in a matter upon which the country feels so hotly as this, the thwarting of the general will by a minority must inevitably lead to violent and infinitely bloody revolution.

Stripping The Court Of Power

But when Mr. Ernst arrives at this point., I find myself bound to leave him. The remedy he proposes is the so-called Madison Amendment, which would allow Congress to override the decisions of the Court by a two-thirds vote. Which is simply to say that he proposes to strip the Court nearly of the whole of its usurped power, and make Congress the final arbiter of the meaning of the Constitution. And that prospect, Congress being what it is, fills me with almost as great horror as it fills Mr. Walter Lippmann himself. The President's proposal, assuming the very worst, is infinitely preferable to that, for it does preserve review power of the court intact. And, however much it may be true that it was originally usurped, this power must be preserved if the Bill of Rights is to be safe in the rising tide of Fascism in this country.

The Court has been a relatively poor defender, certainly, of parts of that Bill of Rights, particularly of the rights of free speech and assembly. It has held Constitutional laws passed by States which not only deprived Communists and radicals generally of these rights, but which were so worded that even solicitors for labor unions could be deprived of them. There are literally dozens of men in jail in these States for no other crime than having spoken out their minds. And some of them have been sitting there for many years. But poor defense though it is, the Court is the only one we have and so it must be preserved.

Dean Clarke's Amendment

Personally, my vote goes to the amendments proposed by Dean Clarke--the amendments which would bring all manufacture, which was not strictly local in its market, to within the scope of the interstate commerce clause of the Constitution, and confine the due clause to reasonable limits.

Actually, I haven't much doubt that the President's proposals will go through, and I decline to believe any such hysterical cant as that it will assure a dictatorship. But it does set a dangerous precedent; and so I think that, in any case, such amendments as these ought to be enacted also, with perhaps an additional one to settle the number of Supreme Court justices for good. Nor do I have any doubt these amendments can be passed. I grant, of course, that the average State legislator is a creature easily to be bought or intimidated--but such animals are far more afraid of a really aroused public opinion than anything else, and few men have had such power for arousing public opinion as Mr. Roosevelt.

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