Front Page Titles (by Subject) 21: Arguments for Judicial Power of Revision - Government by Judiciary: The Transformation of the Fourteenth Amendment
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21: Arguments for Judicial Power of Revision - Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 
Government by Judiciary: The Transformation of the Fourteenth Amendment, Foreword by Forrest McDonald (2nd ed.) (Indianapolis: Liberty Fund, 1997).
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Arguments for Judicial Power of Revision
Chief Justice Marshall
Where early claims to extraconstitutional power were made in the name of “natural law,” the present fashion is to invoke the “living Constitution” when it is sought to engraft or amputate a limb.1 Commentators at a loss to justify judicial arrogations fall back on Marshall’s sonorous reference to a “constitution intended to endure for ages to come.” 2 In an oft-quoted apostrophe, Justice Frankfurter declared that it “expressed the core of [Marshall’s] constitutional philosophy . . . the single most important utterance in the literature of constitutional law.” 3 It has become a mythic incantation.4 Chief Justice Hughes, when confronted by the “mortgage moratorium”-“impairment of contract” problem, declared:
If by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time would have placed upon them,5 the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered a memorable warning— “We must never forget that it is a Constitution we are expounding . . . a constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.” 6
At best Marshall’s dictum represents a self-serving claim of power to amend the Constitution. In Justice Black’s words, “in recalling that it is a Constitution ‘intended to endure for ages to come,’ we also remember that the Founders wisely provided for the means of that endurance: changes in the Constitution are to be proposed by Congress or conventions and ratified by the States.” 7 Claims to the contrary need to be measured by Lord Chief Justice Denman’s observation that “The practice of a ruling power in the State is but a feeble proof of its legality.” 8 Such judicial claims stand no better than the bootstrap “precedents” created by a number of presidents for reallocation to themselves of the warmaking power confided to Congress, in justification of single-handed commitments of the nation to war, as in Vietnam.9 But the fact is, as I shall show, that Marshall’s words have been removed from context, that he flatly repudiated the revisory power Hughes attributed to him, and that other Marshall utterances also show that the conventional view of M’Culloch does not represent the “core of his constitutional philosophy.”
Marshall’s dictum was uttered in M’Culloch v. Maryland; the issue was whether the Constitution empowered Congress to establish the Bank of the United States, and that turned on whether a bank was a proper means for execution of other expressly granted powers. Marshall reasoned that a government “intrusted with such ample powers” as “the great powers, to lay and collect taxes; to borrow money; to regulate commerce,”
must also be intrusted with ample means for their execution. The power being given, it is in the interest of the nation to facilitate its execution . . . This could not be done, by confining the choice of means to such narrow limits as not to leave it in the power of congress to adopt any which might be appropriate . . . To have prescribed the means by which government should, in all future time execute its powers, would have been . . . [to give the Constitution] the properties of a legal code.10
Manifestly, this was merely a plea for some freedom in the “choice of means” to execute an existing power, not for license to create a fresh power at each new crisis. Marshall himself flatly denied such license-claims in a pseudonymous debate with Judges Spencer Roane and William Brockenbrough of Virginia.
M’Culloch immediately had come under attack. To Madison the Court’s ruling seemed
to break down the landmarks intended by a specification of the powers of Congress, and to substitute, for a definite connection between means and ends, a legislative discretion as to the former, to which no practical limits can be assigned . . . [A] regular mode of making proper alteration has been providently provided in the Constitution itself. It is anxiously to be wished . . . that no innovation may take place in other modes, one of which would be a constructive assumption of powers never meant to be granted.11
Thus, the chief architect of the Constitution rejected the replacement of the amendment process by judicial revision as an “assumption of powers never meant to be granted.” Even more severe strictures were published by Roane and Brockenbrough. Marshall leapt to the defense under a pseudonym; speaking to the “intended to endure for ages” phrase, he said:
it does not contain the most distant allusion to any extension by construction of the powers of congress. Its sole object is to remind us that a constitution cannot possibly enumerate the means by which the powers of government are to be carried into execution.12
Again and again he repudiated any intention to lay the predicate for such “extension by construction.” There is “not a syllable uttered by the court” that “applies to an enlargement of the powers of congress.” 13 He rejected any imputation that “those powers ought to be enlarged by construction or otherwise.” 14 He emphasized that “in all the reasoning on the word ‘necessary’ the court does not, in a single instance, claim the aid of a ‘latitudinous’ or ‘liberal’ construction.” 15 He branded as a “palpable misrepresentation” attribution to the Court of the view of the “necessary and proper clause” “as augmenting those powers, and as one which is to be construed ‘latitudinously’ or even ‘liberally.’ ” 16 “It is not pretended,” he said of the “choice of means,” “that this right of selection may be fraudulently used to the destruction of the fair landmarks [Madison’s term] of the constitution.” 17 Finally, the exercise of the judicial power to decide all questions “arising under the constitution and laws” of the United States “ cannot be the assertion of a right to change that instrument. ” 18 Slender as was the justification for invocation of Marshall’s dictum prior to Gerald Gunther’s discovery of Marshall’s Defense, it has been shattered altogether by Marshall’s categorical disclaimer of judicial “right to change that instrument.” 19
Before leaving M’Culloch, account should be taken of a proposal in the Federal Convention to authorize Congress “to grant charters of incorporation.” Rufus King pointed out that it “will be referred to the establishment of a Bank, which has been a subject of contention” in Philadelphia and New York. Modified to apply only to canals, it was voted down 8 to 3.20 Louis Pollak points out that “This legislative history was known at the time M’Culloch v. Maryland was decided, for Jefferson had utilized it in his 1791 memorandum to Washington opposing the Bank Bill.” 21 As a successor to Jefferson as Secretary of State, Marshall had more reason than most to know. His omission to notice it is the more puzzling in light of his allusion to the heated debate on the subject in 1789.22 For the moment discussion of a possible clash between word and deed may be deferred to examination of other Marshall opinions—strangely never mentioned in the “living Constitution” incantations—which adhere to the “constitutional philosophy” he proclaimed in the Roane-Brockenbrough debates.
In Ogden v. Saunders, Marshall stated that the words of the Constitution are not to be “extended to objects not . . . contemplated by its framers.” 23 In Gibbons v. Ogden he stated that if a word was understood in a certain sense “when the Constitution was framed . . . [T]he convention must have used it in that sense,” and it is that sense that is to be given judicial effect.24 In Osborn v. Bank of the United States, he stated: “Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature” 25 —that is, of the “original intention.” In Providence Bank v. Billings, he stated: “The constitution . . . was not intended to furnish the corrective for every abuse of power which may be committed by the State governments. The interest, wisdom, and justice of the representative body and its relation with its constituents furnish the only security . . . against unwise legislation generally,” echoing Gerry’s rejection of judicial “guardians.” 26 These statements are irreconcilable with the interpretation Hughes put on the M’Culloch dictum. Their significance was summed up by Marshall’s associate, Justice Henry Baldwin, who, after noting Marshall’s “a constitution we are expounding,” went on to say, “no commentator ever followed the text more faithfully, or ever made a commentary more accordant with its strict intention and language.” 27
The evidence, I submit, calls for an end to the incantatory reliance on Marshall’s “a Constitution . . . to be adapted to the various crises of human affairs.” If the Constitution is to be altered by judicial fiat, let it not be under seal of a reading Marshall himself repudiated.28
Mr. Justice Holmes
Another lofty dictum canonized by proponents of judicial lawmaking is that of Justice Holmes in Missouri v. Holland:
when we are dealing with words that also are a constituent act, like the Constitution . . . we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in what was said a hundred years ago.29
The magic spell of the superb literary artist must not blind us to the narrow issue actually decided; for it is a fundamental tenet of case law that all statements in a case are to be confined to that decision.30 At issue was whether the treatymaking power extended to an agreement with Great Britain for the protection of migratory birds which annually traversed parts of the United States and of Canada. Addressing the argument that the treaty infringed powers reserved to the States by the Tenth Amendment, Holmes held, “Wild birds are not in the possession of any one; and possession is the beginning of ownership. The whole foundation of the State’s rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State, and in a week a thousand miles away.” He therefore found that the “States are individually incompetent to act,” that the national interest in such migratory birds was of the “first magnitude” and “can be protected only by national action in concert with that of another power,” 31 and concluded that “it is not lightly to be assumed that in matters requiring national action, ‘a power which must belong to and somewhere reside in every civilized government’ is not to be found.” 32 Holmes might have cited Hamilton’s explanation that the treaty power was to have “the most ample latitude—to render it competent to all the stipulations which the exigencies of national affairs might require.” 33 Instead he rose to one of his great rhetorical flights:
The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. The treaty . . . does not contravene any prohibitory words to be found in the Constitution [nor in its history]. The whole question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment. We must consider what this country has become in deciding what the Amendment has reserved.34
The reader will indulge an attempt at more pedestrian analysis. The Tenth Amendment, on which Missouri relied, provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Given that in this area a State is “incompetent” to act, it could hardly lay claim to a “reserved” power to do so. According to Hamilton, a power to enter into “ all the stipulations which the exigencies of national affairs might require” had been delegated to the United States. It follows that a plenary treaty power did not invade a nonexistent State power.35 Consequently Missouri v. Holland furnishes no warrant for encroachment upon actual, reserved State powers, nor for revision of express or implicit constitutional provisions because a new day has dawned.
The cases which confirm that Holmes respected and adhered to the intention of the draftsmen may for the moment be deferred while we consider Holmes’ dicta in Gompers v. United States: “ [the] provisions of the Constitution . . . are organic living institutions transplanted from English soil. Their significance is to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth.” 36 Like “living constitution” the words “the line of their growth” have become a shibboleth of judicial lawmaking, for a Constitution, be it remembered, “grows” only by judicial accretions. Gompers merely involved the meaning of a common law term, “contempts” of court, and the legal meaning of that term could no more be ascertained by resort to a dictionary than could that of “trial by jury” or “habeas corpus.” For that purpose resort to the common law was essential, and in traditional fashion Holmes looked to the common law for the “origin” and “line of growth” of contempts. The issue was whether a criminal contempt lies for violation of an injunction. Justice Holmes held: “So truly are they crimes that . . . in the early law they were punishable only by the usual criminal procedure” and in England still “are tried that way.” 37 By this “origin” and “line of growth” he was not remotely claiming judicial power to “change” the Constitution, but was giving a common law term its traditional meaning.
Other Holmes opinions confirm that such a claim was far removed from his thinking. In Johnson v. United States he held that when a legislature “has intimated its will . . . that will should be recognized and obeyed.” 38 Although this referred to a statute, Holmes scarcely attached more importance to the will of a legislature than to that of the people met in convention. Indeed, he applied the parallel rule to an Amendment in the subsequent case of Eisner v. Macomber: “I think that the word ‘incomes’ in the Sixteenth Amendment should be read in ‘a sense most obvious to the common understanding at the time of its adoption.’ ” 39 Earlier, in Lochner v. New York, he had protested against the majority’s identification of its economic predilections with the Fourteenth Amendment,40 and a few years after Gompers, in Baldwin v. Missouri, he stated:
I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions . . . Of course the words “due process of law,” if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court’s own discretion, the validity of whatever laws the States may pass.41
In short, Holmes deplored judicial invasion of rights reserved to the States, condemned uncurbed judicial discretion to identify personal predilections with constitutional mandates, and recognized the perversion of due process that made such practices possible—all of which is diametrically opposed to the current reading of the Gompers and Holland dicta. Those who march under the pennons of those dicta have overlooked Holmes’ statement that “I do not expect or think it desirable that the judges should undertake to renovate the law. That is not their province.” 42
Mr. Justice Frankfurter
Proponents of a power to “adapt” the Constitution to current needs also quote a dictum of Justice Frankfurter in Youngstown Sheet & Tube Co. v. Sawyer: “It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss that life has written about them.” 43 Once again this is a statement lifted from its context. Frankfurter had in mind the rule that a long-standing executive interpretation illuminates an ambiguous provision: “In short, a systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned . . . may be treated as a gloss on ‘Executive Power’ vested in the President.” To avert a too-sweeping implication he explained that “Deeply embedded traditional ways of conducting a government cannot supplant the Constitution or legislation; but they give meaning to the words of the text or supply them,” 44 that is, if the meaning is otherwise obscure.
That Frankfurter did not refer by such a “gloss” to judicial encrustations is inferable from his assertion on another occasion of a right to look to the Constitution itself rather than to what his predecessors had said about it.45 Then, too, in United States v. Lovett he had distinguished “broad standards,” which “allow a relatively wide play for individual legal judgments,” from “very specific provisions” such as the prohibition of “bills of attainder,” which must be read as “defined by history. Their meaning was so settled by history that definition was superfluous.” 46 To be sure, he placed “due process of law” among the “broad standards”; in this, however, he was mistaken, for history leaves no doubt that there was no “substantive” due process, that due process did not apply to legislative action but was confined to procedure in the courts, as was unmistakably expressed by Hamilton in 1787. The purely “procedural” content of due process was, in the words of Charles Curtis, “as fixed and definite as the common law could make a phrase.” 47 Frankfurter himself adverted to the “fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the Constitution.” 48 Under his own criterion respecting common law terms—they must be read as “defined by history” —we cannot, to borrow from one of his opinions, “extend the definitions . . . Precisely because ‘it is a constitution we are expounding’ . . . we ought not to take liberties with it.” 49 And precisely because, in Frankfurter’s own words, “there was a deep distrust of a federal judicial system” 50 in 1787, and of the courts in 1866 as well, we should not read “due process” to confer untrammeled lawmaking power on the judiciary. Although the “deepest conviction” he cherished was that “no five men, or nine, are wise enough or good enough to wield such power over an entire nation,” 51 it was not deep enough to overcome his confidence in his own wisdom when he ascended to the bench.52
To convert the Marshall-Holmes-Frankfurter statements into constitutional dogma is both to disregard how narrow were their actual decisions and their reaffirmations that judges are under a duty to effectuate the original understanding and to respect the historical meaning of common law terms. Reliance on those statements for a doctrine of judicial power to “change” the Constitution only exposes the hollowness of the case for judicial revisionism.
Proponents of a “living Constitution” often twit me with the discrepancy between Marshall’s deeds and his words. It is true that some of his decisions may be regarded as judicial lawmaking. Willard Hurst observed that “To rule that a corporation charter enjoyed the protection of a ‘contract’ under the constitutional provision [impairment of contracts clause] was a clear-cut act of judicial law-making.” 53 And if knowledge can be brought home to Marshall that the Convention had specifically rejected a proposal for incorporation of banks, his disclaimers respecting M’Culloch might be regarded as “fraudulent.” 54 But such examples afford a sad triumph for revisionists. To do what one disclaims as he acts is a reproach to any man, all the more when it is done by the oracles of the law whom we are urged to regard as the “national conscience.” Of no one should more fastidious morality be required than of the Supreme Court.
Professors Thomas C. Grey and Louis Lusky
Sensible of the deficiences of conventional arguments for judicial lawmaking, Thomas Grey and Louis Lusky have proffered new theories on which the function should be based. Grey would invoke a continuing “natural law” tradition, while Lusky finds that the Founders conferred an “implied right” of judicial revision.
Grey espouses the Court’s “role as the expounder of basic national ideals of individual liberty and fair treatment, even when the content of these ideals is not expressed as a matter of positive law in the written Constitution.” 55 He concedes, however, that “such a role . . . is more difficult to justify than is the role assigned by the pure interpretive model,” his label for Justice Black’s restrictive view of judicial review.56 That view, he states, “is one of great power and compelling simplicity . . . deeply rooted in our history and in our shared principles of political legitimacy. It has equally deep roots in our formal constitutional law.” 57 The “grave difficulties” that attend the lawmaking model explain the judicial tendency, he continues, “to resort to bad legislative history” to support desired results. If “judges resort to bad interpretations in preference to honest exposition of deeply held but unwritten ideals, it must be because they perceive the latter mode of decision-making to be of suspect legitimacy.” 58
To answer the “question whether in our Constitution we have actually granted this large power to our judges” he briefly sketches an argument that he hopes to expand and document later.59 His posits that the generation that framed the Constitution was attached to “the concept of a ‘higher law’ protecting ‘natural rights,’ and taking precedence over ordinary positive law . . . Thus in the framing of the original American constitutions it was widely accepted that there remained unwritten but still binding principles of higher law. The Ninth amendment is the textual expression of this idea in the Federal Constitution.” It was “widely assumed,” he states, “that judges would enforce as constitutional restraints the unwritten natural rights.” 60 Since Grey postponed documentation for these propositions, detailed commentary is not possible. Robert Cover concluded, however, that the Founders were attached to positive rather than to natural law.61 Judicial review was an innovation that had excited the animosity of several State legislatures;62 its proponents advocated it in restricted terms: the policing of constitutional “limits.” 63 My own study of the records of the Federal Convention uncovered no intimations that natural law would empower judges to rise above the positive limitations of the Constitutions; evidence to the contrary may be postponed to examination of the Lusky thesis, for that evidence, I consider, refutes both the Grey and Lusky theories.
Here it may suffice to inquire in what way the “Ninth amendment is the textual expression” of the “idea” that “there remained unwritten but still binding principles of higher law.” Were they binding on the courts? The Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Because certain nonenumerated rights are “retained by the people,” it does not follow that federal judges are empowered to enforce them. Apart from “diversity” suits between citizens of different States, fashioned to “insure fair dealing between citizens of different States,” 64 federal jurisdiction is limited to cases “arising under this Constitution,” for example, one invoking Fourth Amendment guarantees. It needs at least to be asked whether federal courts are authorized to enforce extraconstitutional “rights” that have neither State nor federal sanction. An implication to the contrary may be drawn from Madison’s explanation in the First Congress immediately following his reference to the Ninth Amendment. If the guarantees of the Bill of Rights, he said, would be incorporated in the Constitution, the “independent tribunals of justice . . . will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the Declaration of Rights.” 65 The appeal to the Ninth Amendment was made by Justice Goldberg in Griswold v. Connecticut,66 but the cases he cited lend no support for invocation of the Ninth Amendment; they involve either Bill of Rights guarantees that the Court has embodied in the Fourteenth Amendment, or rights like those of the right to travel or to associate which the Court found protected by the “liberty” of the Fifth and Fourteenth Amendment due process clauses.67 In short, when the Court deemed a right worthy of protection it grounded intervention on the Bill of Rights or the Fourteenth Amendment, rendering resort to the Ninth Amendment superfluous. For me, as for Justice Black, the Amendment “was passed not to broaden the powers of this Court . . . but . . . to limit the Federal Government to the powers granted.” 68
Grey considers that the Fourteenth Amendment likewise was influenced by “natural rights”:
Natural rights reasoning in constitutional adjudication persisted up to the Civil War, particularly with respect to property and contract rights, and increasingly involving “due process” and “law of the land” clauses in constitutional texts. At the same time, an important wing of the anti-slavery movement developed a natural-rights constitutional theory, built around the concepts of due process, of national citizenship and its rights, and of the human equality proclaimed in the Declaration of Independence.
Though this latter movement had little direct effect on pre-Civil War decisions, it was the formative theory underlying the due process, equal protection and privileges and immunities clauses of the 14th amendment. Section 1 of the 14th amendment is thus properly seen as a reaffirmation and reenactment in positive law of the principle that fundamental human rights have constitutional status.69
Prior to the Civil War the courts were most inhospitable to “natural rights” as Robert Cover convincingly shows in his review of the fugitive slave cases.70 Even in a “property” case, Wynehamer v. The People, the court dismissed claims based on “natural law” and fabricated a novel theory of “substantive due process.” But that theory found no favor with other courts71 until the Supreme Court, under ceaseless prodding by Justice Field, embraced it in the 1890s. It is true that the framers embodied “fundamental human rights” in the Civil Rights Act and thence in the Fourteenth Amendment, but those were regarded as restricted in scope and enumerated, for example, the right to own property, to contract; “political and social” rights were unmistakably excluded.72 The equality (only partially) envisaged in the Declaration of Independence plainly found no place in the thinking of the framers of the Fourteenth Amendment.73 Grey’s reference to the “constitutional theory” of a “wing of the anti-slavery party” that allegedly “was the formative theory” underlying §1 invokes the Graham-tenBroek-Kelly theory, which simply cannot stand up against the historical facts.74 In the history of the Fourteenth Amendment, it may confidently be stated, there is not a glimmering of intention to authorize judges to enforce rights beyond those enumerated in the Civil Rights Act. Far from endowing the judiciary with a broad power to enforce “natural rights” going beyond those so enumerated, the courts were pointedly omitted from the §5 power to enforce even the rights granted by §1.75
Lusky, who sought an improved rationale for judicial intervention in behalf of libertarian ideals as long ago as 1938, when he aided Justice Stone in fashioning the Carolene Products footnote,76 was at last driven to ask: “ By what right does [the Court] revise the Constitution?” 77 His attempt to supply an answer by way of a theory of “implied power” to do so is set forth in his book By What Right? Many of his comments on the cases are rewarding, but strange is his line of demarcation. Down to 1961 or 1962 “the Court maintained its traditional passive posture,” 78 but after 1962 it engaged in “a dazzling display of seemingly freehand constitution-making without apparent concern for the intention of the Constitutors.” 79 Few would regard Brown v. Board of Education (1954) as exemplifying the Court’s “passive posture”; the evidence set forth in Chapter 6 hereof demonstrates that it was “making new law for a new day. ” In fact, Lusky praises “the tremendously valuable work it has done in the past third of a century.” It “has performed splendidly” as the “citadel of the republic—the main instrument for societal self-perfection,” 80 a performance far removed from a “passive posture.”
Lusky’s anxiety was aroused by the “neoprivacy” (contraceptive and abortion) cases, where the discredited “substantive due process began to reappear . . . under a different banner bearing the watchword privacy.” 81 These are the cases he regards as “usurpation of power.” 82 Yet neither the constitutional text nor its history forbid judicial interference with State regulation of the right of privacy, whereas the history of the Fourteenth Amendment plainly does preclude such interference with State control of suffrage and segregation. We may therefore with Justice Harlan view the State reapportionment cases “as a much more audacious and far-reaching judicial interference with the state legislative process . . . than the comparatively innocuous use of judicial power in the contraceptive case.” 83 Presumably Lusky considers that the desegregation and reapportionment cases meet the criteria he suggests for employment of the “implied power” to revise the Constitution, but he himself recognizes that whether those tests are “so vague as to be illusory” poses a question “on which the validity of the [implied power] must stand or fall.” 84 Examination of that question may be dispensed with because, as will appear, his argument for existence of the “implied power” is fundamentally defective, and because the materials I shall set out to demonstrate that defect equally dispose of Grey’s resort to “natural law.”
Lusky bases his “implied power” to “revise the Constitution . . . exercising the prerogatives of a continuing constitutional convention,” upon a sweeping assumption:
One perpetrates no violence upon logic or known historical facts by assuming that the Founding Fathers intended . . . (c) to empower the Court to serve as the Founders’ surrogate for the indefinite future—interpreting the Constitution not as they themselves would have directed if they had been consulted in 1787, but as is thought right by men who accepted the Founders’ political philosophy—their commitment to self-government and the open society—and consider themselves obligated to effectuate that philosophy in the America of their own day.85
This assumes the answer to the very question in issue: did the Framers empower the judges to revise the Constitution. It assumes that the Framers handed the constitution-changing function to a “surrogate,” whose crystal-gazing as to effectuation of their “political philosophy” is made a substitute for the express terms of the Constitution. Such divination recalls the Chinese emperor’s “mandate from heaven.” Lusky’s assumption does in fact do “violence . . . to known historical facts.”
He considers that Marshall “unfolded the doctrine of implied powers” in M’Culloch v. Maryland, drawing on Marshall’s statement that, given ample powers, the government “must also be entrusted with ample means for their execution.” 86 But ample means to execute existing powers cannot stretch to their expansion or to creation of new powers. Marshall himself disclaimed “any extension by construction of the powers of Congress”; he held that the judicial power “cannot be an assertion of a right to change” the Constitution.87 The generation that framed the Constitution was devoted to a “fixed constitution”; courts “were not regarded as instruments of social change.” 88 Judicial participation in legislative policymaking was forthrightly rejected; despite arguments by George Mason and James Wilson that judicial review confined to violation of some constitutional provision would not allow judges to set aside oppressive though constitutional laws, the Framers would not, as Elbridge Gerry stated, make judges the “guardians of the people.” 89 Now Lusky would have it that the Framers turned policymaking over to the judges in toto, constituting them a super legislature, notwithstanding Hamilton’s reassuring quotation of Montesquieu: “of the three powers—the judiciary is next to nothing.” 90
Hamilton alone presents an insuperable obstacle to the Grey-Lusky theories. Presumably inspired by States’ Rights distrust of a federal judiciary,91 he averred that the Constitution is “binding” on all, including the peoples’ representatives, who have no “warrant” to make “a departure” from it “until the people” have changed it by a “solemn and authoritative act,” 92 that is, by amendment. He stated that “the intention of the people [ “ought to be preferred” ] to the intention of their agents.” That he meant to leave no room for displacement of that “intention” by the Justices is underscored by his scornful dismissal of the notion that “the courts on the pretense of a repugnancy may substitute their own pleasure [for] the constitutional intentions of the legislature.” 93 As Lusky himself comments, this “is hard to square with anticipation of judicial constitution-making power.” 94 It is not “hard to square,” it is impossible—as Hamilton’s further statement that judges would be impeachable for “deliberate usurpations on the authority of the legislature” confirms. What “usurpations” could there be if judges were empowered to act as “surrogates” of the Founders or to enforce the wide-open spaces of “natural law”? Both the Grey and Lusky theories set at naught the “limits” so carefully framed by the Founders; both would circumvent the Article V method of change by amendment.
[1.]The “doctrine of the living Constitution amounts to little more than willful disregard of the express or implied intent of the framers.” James McClellan, Joseph Story and the American Constitution 116–117 (1971). Thomas Grey more diplomatically states that “Our characteristic contemporary metaphor is ‘the living Constitution’ . . . sufficiently unspecific to permit the judiciary to elucidate the development and change in the content of those rights over time.” “Do We Have an Unwritten Constitution?,” 27 Stan. L. Rev. 703, 711 (1975).
[2.]Auerbach, “The Reapportionment Cases: One Person, One Vote—One Vote, One Value,” 1964 S. C. Rev. 1 , 75; cf. Louis Pollak, “The Supreme Court Under Fire,” 6 J. Pub. L. 428, 441 (1957).
[3.]Frankfurter, “John Marshall, and the Judicial Function,” 69 Harv. L. Rev. 217, 218–219 (1955). That utterance, Frankfurter said, requires “a spacious view in applying an instrument of government ‘made for an undefined and expanding future.’ ” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 596 (1952). Compare the severely restricted gloss Marshall put upon his words, infra at notes 12–18. And compare the Founders’ views as to change by amendment. Supra Chapter 17 at notes 15–22.
[4.]“It is important,” said Justice Frankfurter, “not to make untouchable dogmas of the fallible reasoning of even our greatest judge.” Frankfurter, supra note 3 at 219.
[5.]Many are the instances in which the Framers did place an interpretation upon their words, or used words of known common law meaning. To phrase the issue in terms of what meaning they “ would have placed upon them” beclouds it.
[6.]Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 442, 443 (1934). Small as is my esteem of Justice Sutherland, I consider nevertheless that his dissent has a firmer historical base. My friends inquire whether I am not troubled to find myself in such company. Edmund Wilson called this “the ‘bed-fellow’ line of argument, which relies on producing the illusion of having put you irremediably in the wrong by associating you with some odious person who holds a similar opinion.” Edmund Wilson, Europe Without a Baedeker 154 (1966). To which I would add, “I would rather be right with my enemy than wrong with my friend.”
[7.]Bell v. Maryland, 378 U.S. 226, 342 (1964); cf. supra Chapter 15 at note 61; Chapter 17 at notes 15–22.
[8.]Stockdale v. Hansard, 112 E. R. 1112, 1171 (Q. B. 1839).
[9.]See Raoul Berger, Executive Privilege: A Constitutional Myth 75–88 (1974), for citations.
[10.]17 U.S. (4 Wheat.) 316, 407, 408, 415 (1819) (emphasis added).
[11.]H. C. Hockett, The Constitutional History of the United States 1826–1876 4 (1939); see supra Chapter 15 at note 61; Chapter 17 at notes 15–22; for the explanation of Madison’s anxiety see infra at note 20 and note 22.
[12.]John Marshall’s Defense of McCulloch v. Maryland 185 (G. Gunther ed. 1969) (emphasis added).
[18.]Id. 209 (emphasis added).
[19.]Commenting on the impact of that Defense, Professor Gunther observes that “If virtually unlimited congressional [or judicial] discretion is required to meet twentieth century needs, candid argument to that effect, rather than ritual invoking of Marshall’s authority, would seem to me more clearly in accord with the Chief Justice’s stance.” Supra note 12 at 20–21.
[20.]2 Farrand 321, 325, 615–616.
[21.]Pollak, supra note 2 at 441 note 87.
[22.]Supra note 10 at 401. In the February 1791 debate Madison “well recollected that a power to grant charters of incorporation had been proposed in the General Convention and rejected.” 2 Annals of Congress 1896 (1791).
[23.]25 U.S. (12 Wheat.) 213, 332 (1827), dissenting opinion.
[24.]22 U.S. (9 Wheat.) 1, 190 (1824); see supra Chapter 20 note 38; infra Chapter 22 note 6.
[25.]22 U.S. (9 Wheat.) 738, 866 (1824).
[26.]29 U.S. (4 Pet.) 514, 563 (1830).
[27.]H. Baldwin, A General View of the Origin and Nature of the Constitution and Government of the United States 100 (1837).
[28.]See supra note 19.
[29.]252 U.S. 416, 433 (1920).
[30.]Marshall dismissed his own dicta in Marbury v. Madison when they were pressed upon him in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821), saying that dicta do not receive the careful consideration accorded to the “question actually before the court.”
[31.]252 U.S. at 434, 433.
[32.]Id. 433. But Madison stated, “Had the power of making treaties, for example, been omitted, however necessary it might have been, the defect could only have been lamented, or supplied by an amendment of the Constitution.” 2 Annals of Congress 1900–1901 (February 2, 1791).
[33.]“Letters of Camillus,” 6 Hamilton, Works 183 (Lodge ed. 1904).
[34.]252 U.S. at 433–434.
[35.]Willard Hurst, who served as law clerk to Justice Holmes and wrote a valuable monograph on Holmes’ view of constitutional history, states that in Missouri v. Holland Holmes “in effect . . . says that when all other evidence of the Constitution-makers’ intent fails, we must yet be guided by what we know to be their most general objective . . . to provide a structure within which the future may settle its own problems.” “The Process of Constitutional Construction,” in Supreme Court and Supreme Law 55, 57–58 (Edmond N. Cahn ed. 1954) (emphasis added). This is no license to ignore “evidence of the Constitution-makers’ intent.”
[36.]233 U.S. 604, 610 (1914).
[38.]163 F. 30, 32 (1st Cir. 1908).
[39.]252 U.S. 189, 219–220 (1920). In Weems v. United States, 217 U.S. 349, 389, 397 (1910), Justice Holmes joined in a dissent by Justice Edward White stating that the meaning of “cruel and unusual punishment” was to be derived from English and pre-1787 State practices.
[40.]198 U.S. 45, 75 (1905).
[41.]281 U.S. 586, 695 (1930) (emphasis partially added).
[42.]Oliver Wendell Holmes, Jr., Collected Legal Papers 239 (1920); see also supra Chapter 17 note 32.
[43.]343 U.S. at 610–611, concurring opinion.
[44.]Id. 610 (emphasis added).
[45.]Supra Chapter 15 note 57.
[46.]328 U.S. 303, 321 (1946), concurring opinion.
[47.]Supra Chapter 11 at note 27.
[48.]Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 161–162 (1951), concurring opinion.
[49.]National Ins. Co. v. Tidewater Co., 337 U.S. 582, 646 (1949), dissenting opinion.
[51.]Supra Chapter 14 at note 72.
[52.]See supra Chapter 7 at notes 48–53, 63–65, and Chapter 14 at notes 140–141.
[53.]The Legitimacy of the Business Corporation in the Law of the United States 63 (1970).
[54.]See supra at note 17.
[55.]Grey, supra note 1 at 706.
[56.]Id. 706, 705.
[58.]Id. 706; cf. supra Chapter 7 at notes 54–59.
[59.]Grey, supra note 1 at 715 note 49.
[60.]Id. 715–716. For the settled scope of “natural rights,” see Kelly, supra Chapter 2 note 55.
[61.]Chapter 14 at note 15. Professor Cox alludes to “a deep and continuing American belief in natural law.” The Role of the Supreme Court in American Government 16 (1976). For additional quotations from Cox, see supra Chapter 14 note 38.
[62.]Raoul Berger, Congress v. The Supreme Court 38, 40, 42 (1969).
[64.]See supra Chapter 12 note 13.
[65.]1 Annals of Congress 439 (emphasis added).
[66.]381 U.S. 479, 492 (1965), concurring opinion. Compare with Chief Justice Marshall, supra at note 26. Dissenting, Justice Black replied, “the Ninth Amendment was intended to protect against the idea that ‘by enumerating particular exceptions to the grant of power to the Federal Government,’ those rights which were not singled out were intended to be assigned” to it. 381 U.S. at 519, quoting 1 Annals of Congress 439.
[67.]Cantwell v. Connecticut, 310 U.S. 296 (1940): First Amendment—freedom of religion; New York Times Co. v. Sullivan, 376 U.S. 254 (1964): First Amendment—freedom of speech; Kent v. Dulles, 357 U.S. 116 (1958) and Aptheker v. Secretary of State, 378 U.S. 500 (1964): Fifth Amendment “liberty” —right to travel; Gideon v. Wainright, 372 U.S. 335 (1963): Sixth Amendment—right to counsel; N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958): Fourteenth Amendment “liberty” —freedom of association; Bolling v. Sharpe, 347 U.S. 497 (1954): Fifth Amendment “liberty” —desegregated schools in District of Columbia.
[68.]Griswold v. Connecticut, 381 U.S. at 520.
[69.]Supra note 1 at 716.
[70.]Supra Chapter 14 at notes 25–26.
[71.]Id. at notes 28–35.
[72.]Supra Chapter 2 at notes 26–30, 35–36, 39.
[73.]Supra Chapter 4 at notes 57–66; Chapter 2 at notes 26, 30; Chapter 10 at note 6.
[74.]Supra Chapter 13.
[75.]Supra Chapter 12.
[76.]Supra Chapter 14 at notes 123–125.
[81.]Id. 337; see also id. 336, 339–341.
[83.]The quotation is in the paraphrase of Professor Paul Kauper, “Penumbras, Peripheries, Emanations, Things Fundamental and Things Forgotten: The Griswold Case,” 64 Mich. L. Rev. 235, 256 (1965).
[84.]Lusky 270, 318.
[87.]Supra at notes 10–18.
[88.]Supra Chapter 16 at note 33. In the North Carolina Convention Timothy Bloodworth stated, “I wish to leave no dangerous latitude of construction.” 4 Elliot 50. Elbridge Gerry stated in the First Congress, “The people of America can never be safe, if Congress have a right to exercise the power of giving constructions to the Constitution different from the original instrument.” 1 Annals of Congress 523. Chief Justice Marshall was well aware of the continuing vitality of such fears. Supra at notes 14–16.
[89.]Supra Chapter 16 at note 8.
[90.]Federalist No. 78 at 504n.
[91.]Supra at note 50; see also Berger, supra note 62 at 263, 267–269.
[92.]Supra Chapter 17 at note 15.
[93.]Federalist No. 78 at 506, 507.
[94.]Lusky 72. Lusky’s reliance on the practice of “successive generations of Justices,” id. 95, does not advance his argument because: (1) no chain of argument is stronger than its weakest link—the original source of the power; (2) what a wielder of power claims is but “feeble proof of its legality,” supra at note 8; and (3) usurpation is not legitimated by repetition. Powell v. McCormack, 395 U.S. 486, 546–547 (1969). His reliance on United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936), for a theory of “implied power,” Lusky 90, leans on a case that has been widely criticized, and as Justice Jackson pointed out, proceeded under a delegation from Congress. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–636 note 2 (1952), concurring opinion; David Levitan, “The Foreign Relations Power: An Analysis of Mr. Justice Sutherland’s Theory,” 55 Yale L.J. 467 (1946); Raoul Berger, “War-Making by the President,” 121 U. Pa. L. Rev. 29, 69–75 (1972); C. A. Lofgren, “United States v. Curtiss-Wright Export Corporation: An Historical Reassessment,” 83 Yale L.J. 51 (1973).