The Theory of Social Revolutions

In reality Jefferson's temper, far from being vindictive and revolutionary, as his enemies believed, was rather gentle and timid, but he would have been more than mortal had he endured such an insult in silence. Nor could he, perhaps, have done so without risking the respect of his followers. So he decided on reprisals, and a scheme was matured among influential Virginians, like John Randolph and Senator William Giles, to purge the Supreme Court of Federalists. Among the associate justices of this court was Samuel Chase, a signer of the Declaration of Independence and an able lawyer, but an arrogant and indiscreet partisan. Chase had made himself obnoxious on various public occasions and so was considered to be the best subject to impeach; but if they succeeded with him the Jeffersonians proclaimed their intention of removing all his brethren seriatim, including the chief offender of all, John Marshall. One day in December, 1804, Senator Giles, of Virginia, in a conversation which John Quincy Adams has reported in his diary, discussed the issue at large, and that conversation is most apposite now, since it shows how early the inevitable tendency was developed to make judges who participate in political and social controversies responsible to the popular will. The conversation is too long to extract in full, but a few sentences will convey its purport:–

"He treated with the utmost contempt the idea of an independent judiciary.... And if the judges of the Supreme Court should dare, as they had done, to declare an act of Congress unconstitutional, or to send a mandamus to the Secretary of State, as they had done, it was the undoubted right of the: House of Representatives to impeach them, and of the Senate to remove them, for giving such opinions, however honest or sincere they may have been in entertaining them. * * * And a removal by impeachment was nothing more than a declaration by Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. We want your offices, for the purpose of giving them to men who will fill them better."13

Jefferson, though he controlled a majority in the Senate, failed by a narrow margin to obtain the two-thirds vote necessary to convict Chase. Nevertheless, he accomplished his object. Chase never recovered his old assurance, and Marshall never again committed a solecism in judicial manners. On his side, after the impeachment, Jefferson showed moderation. He might, if he had been malevolent, without doubt, have obtained an act of Congress increasing the membership of the Supreme Court enough to have put Marshall in a minority. Then by appointing men like Giles he could have compelled Marshall to resign. He did nothing of the kind. He spared the Supreme Court, which he might have overthrown, and contented himself with waiting until time should give him the opportunity to correct the political tendencies of a body of men whom he sincerely regarded as a menace to, what he considered, popular institutions. Thus the ebullition caused by Marshall's acrimony toward Jefferson, because of Jefferson's strictures on the appointments made by his predecessor subsided, leaving no very serious immediate mischief behind, save the precedent of the nullification of an act of Congress by the Supreme Court. That precedent, however, was followed by Marshall's Democratic successor. And nothing can better illustrate the inherent vice of the American constitutional system than that it should have been possible, in 1853, to devise and afterward present to a tribunal, whose primary purpose was to administer the municipal law, a set of facts for adjudication, on purpose to force it to pass upon the validity of such a statute as the Missouri Compromise, which had been enacted by Congress in 1820, as a sort of treaty of peace between the North and South, and whose object was the limitation of the spread of slavery. Whichever way the Court decided, it must have fallen into opprobrium with one-half the country. In fact, having been organized by the slaveholders to sustain slavery, it decided against the North, and therefore lost repute with the party destined to be victorious. I need not pause to criticise the animus of the Court, nor yet the quality of the law which the Chief Justice there laid down. It suffices that in the decade which preceded hostilities no event, in all probability, so exasperated passions, and so shook the faith of the people of the northern states in the judiciary, as this decision. Faith, whether in the priest or the magistrate, is of slow growth, and if once impaired is seldom fully restored. I doubt whether the Supreme Court has ever recovered from the shock it then received, and, considered from this point of view, the careless attitude of the American people toward General Grant's administration, when in 1871 it obtained the reversal of Hepburn v. Griswold by appointments to the bench, assumes a sombre aspect.

Of late some sensitiveness has been shown in regard to this transaction, and a disposition has appeared to defend General Grant and his Attorney-General against the charge of manipulating the membership of the bench to suit their own views. At the outset, therefore, I wish to disclaim any intention of entering into this discussion. To me it is immaterial whether General Grant and Mr. Hoar did or did not nominate judges with a view to obtaining a particular judgment. I am concerned not with what men thought, but with what they did, and with the effect of their acts at the moment, upon their fellow-citizens.

Hepburn v. Griswold was decided in conference on November 27, 1869, when eight justices were on the bench. On February 1, following, Justice Grier resigned, and, on February 7, judgment was entered, the court then being divided four to three, but Grier having been with the majority, the vote in reality stood five to three. Two vacancies therefore existed on February 7, one caused by the resignation of Grier, the other by an act of Congress which had enlarged the court by one member, and which had taken effect in the previous December.

Chief Justice Chase held that the clause of the currency laws of 1862 and 1863 which made depreciated paper a legal tender for preëxisting debts was unconstitutional. No sooner had the judgment been recorded than all the world perceived that, if both vacancies should be filled with men who would uphold the acts, Hepburn v. Griswold might be reversed by a majority of one.

The Republican party had full control of the government and was united in vehement support of the laws. On March 21, the second of the two new judges received his commission, and precisely ten days afterward the Attorney-General moved for a rehearing, taunting the Chief Justice with having changed his opinion on this point, and intimating that the issue was in reality political, and not judicial at all.

In the December Term following Knox v. Lee was argued by the Attorney-General, and, on May 1, 1871, judgment was entered reversing Hepburn v. Griswold, both the new judges voting with the former minority, thus creating the necessary majority of one. No one has ever doubted that what General Grant did coincided with the drift of opinion, and that the Republican party supported him without inquiring how he had achieved success.14 After this it is difficult to suppose that much respect could remain among the American people for the sanctity of judicial political decisions, or that a President, at the head of a popular majority, would incur much odium for intervening to correct them, as a party measure.

The last example of judicial interference which I shall mention was the nullification, in 1895, of a statute of Congress which imposed an income tax. The states have since set this decision aside by constitutional amendment, and I should suppose that few would now dispute that the Court when it so decided made a serious political and social error. As Mr. Justice White pointed out, the judges undertook to deprive the people, in their corporate capacity, of a power conceded to Congress "by universal consensus for one hundred years."15 These words were used in the first argument, but on the rehearing the present Chief Justice waxed warm in remonstrating against the unfortunate position in which his brethren placed the Court before the nation, protesting with almost passionate earnestness against the reversal by half-a-dozen judges of what had been the universally accepted legal, political, and economic policy of the country solely in order that "invested wealth" might be read "into the constitution" as a favored and protected class of property. Mr. Justice White closed by saying that by this act the Supreme Court had "deprived [the Government] of an inherent attribute of its being."16 I might go on into endless detail, but I apprehend that these cases, which are the most important which have ever arisen on this issue, suffice for my purpose.17 I contend that no court can, because of the nature of its being, effectively check a popular majority acting through a coordinate legislative assembly, and I submit that the precedents which I have cited prove this contention. The only result of an attempt and failure is to bring courts of justice into odium or contempt, and, in any event, to make them objects of attack by a dominant social force in order to use them as an instrument, much as Charles II used Jeffreys.

The moment we consider the situation philosophically we perceive why using a court to control a coordinate legislature must, nearly inevitably, be sooner or later fatal to the court, if it asserts its prerogative. A court to be a fit tribunal to administer the municipal law impartially, or even relatively impartially, must be a small body of men, holding by a permanent and secure tenure, guarded from all pressure which may unduly influence them. Also they should be men of much experience and learned in the precedents which should make the rules which they apply stable and consistent. In short, a court should be rigid and emotionless. It follows that it must be conservative, for its members should long have passed that period of youth when the mind is sensitive to new impressions. Were it otherwise, law would cease to be cohesive. A legislature is nearly the antithesis of a court. It is designed to reflect the passions of the voters, and the majority of voters are apt to be young. Hence in periods of change, when alone serious clashes between legislatures and courts are likely to occur, as the social equilibrium shifts the legislature almost certainly will reflect the rising, the court the sinking power. I take the Dred Scott Case as an illustration. In 1857 the slaveholding interest had passed the zenith of high fortune, and was hastening toward its decline. In the elections of 1858 the Democratic party, which represented slavery, was defeated. But the Supreme Court had been organized by Democrats who had been dominant for many years, and it adhered, on the principle laid down by Jeffreys, to the master which created it.

Occasionally, it is true, a court has been constructed by a rising energy, as was the Supreme Court in 1789, but then it is equally tenacious to the instinct which created it. The history of the Supreme Court is, in this point of view, eminently suggestive. The Federalist instinct was constructive, not destructive, and accordingly Marshall's fame rests on a series of constructive decisions like M'Culloch v. Maryland, Cohens v. Virginia, and Gibbons v. Odgen. In these decisions he either upheld actual national legislation, or else the power of the nation to legislate. Conversely, whenever Marshall or his successors have sought to obstruct social movement they have not prospered. Marbury v. Madison is not an episode on which any admirer of Marshall can linger with satisfaction. In theory it may be true, as Hamilton contended, that, given the fact that a written constitution is inevitable, a bench of judges is the best tribunal to interpret its meaning, since the duty of the judge has ever been and is now to interpret the meaning of written instruments; but it does not follow from this premise that the judges who should exercise this office should be the judges who administer the municipal law. In point of fact experience has proved that, so far as Congress is concerned, the results of judicial interference have been negative. And it would be well if in other spheres of American constitutional development, judicial activity had been always negative. Unfortunately, as I believe, it has extended into the domain of legislation. I will take the Dred Scott Case once more to illustrate my meaning. The North found it bad enough for the Supreme Court to hold that, under the Constitution, Congress could not exclude slavery from the national territory beyond a certain boundary which had been fixed by compromise between the North and South. But the North would have found it intolerable if the Court, while fully conceding that Congress might so legislate, if the character of the legislation commended itself to the judges, had held the Missouri Compromise to be unconstitutional because they thought it unreasonable. Yet this, in substance, is what our courts have done. And this brings me to the consideration of American courts as legislative chambers.

CHAPTER III

AMERICAN COURTS AS LEGISLATIVE CHAMBERS

In one point of view many of the greatest of the Federalists were idealists. They seem sincerely to have believed that they could, by some form of written words, constrain a people to be honest against their will, and almost as soon as the new government went into operation they tested these beliefs by experiment, with very indifferent success. I take it that jurists like Jay and Marshall held it to be axiomatic that rules of conduct should be laid down by them which would be applicable to rich and poor, great and small, alike, and that courts could maintain such rules against all pressure. Possibly such principles may be enforced against individuals, but they cannot be enforced against communities, and it was here that the Federalist philosophy collapsed, as Hamilton, at least partly, foresaw that it must.

Sovereigns have always enjoyed immunity from suit by private persons, unless they have been pleased to assent thereto, not because it is less wrongful for a sovereign than for an individual to cheat, but because the sovereign cannot be arrested and the individual can. With the Declaration of Independence the thirteen colonies became sovereigns. Petty sovereigns it is true, and singly contemptible in physical force as against most foreign nations, but none the less tenacious of the attributes of sovereignty, and especially of the attribute which enabled them to repudiate their debts. Jay, Marshall, and their like, thought that they could impose the same moral standard upon the states as upon private persons; they were unable to do so, but in making the attempt they involved the American judicial system in a maze of difficulties whose gravity, I fear, can hardly be exaggerated. Before entering upon this history, however, I must say a word touching the nature of our law.

Municipal law, to be satisfactory, should be a body of abstract principles capable of being applied impartially to all relevant facts, just as Marshall and Jay held it to be. Where exceptions begin, equality before the law ends, as I have tried to show by the story of King David and Uriah, and therefore the great effort of civilization has been to remove judges from the possibility of being subjected to a temptation, or to a pressure, which may deflect them from impartiality as between suitors. In modern civilization, especially, nothing is so fatal to the principle of order as inequality in the dispensation of justice, and it would have been reasonable to suppose that Americans, beyond all others, would have been alive to this teaching of experience, and have studiously withdrawn their bench from politics. In fact they have ignored it, and instead they have set their judiciary at the focus of conflicting forces. The result has been the more unfortunate as the English system of jurisprudence is ill calculated to bear the strain, it being inflexible. In theory the English law moves logically from precedent to precedent, the judge originating nothing, only elaborating ideas which he has received from a predecessor, and which are binding on him. If the line of precedents leads to wrongful conclusions, the legislature must intervene with a statute rectifying the wrong. The Romans, who were gifted with a higher legal genius than we, managed better. The praetor, by his edict, suppressed inconvenient precedents, and hence the Romans maintained flexibility in their municipal law without falling into confusion. We have nothing to correspond to the praetor.

Thus the English system of binding precedents is troublesome enough in a civilization in chronic and violent flux like modern civilization, even when applied to ordinary municipal law which may be changed at will by legislation, but it brings society almost to a stand when applied to the most vital functions of government, with no means at hand to obtain a corrective. For the court of last resort having once declared the meaning of a clause of the Constitution, that meaning remains fixed forever, unless the court either reverses itself, which is a disaster, or the Constitution can be amended by the states, which is not only difficult, but which, even if it be possible, entails years of delay.

Yet pressing emergencies arise, emergencies in which a settlement of some kind must almost necessarily be reached somewhat rapidly to avert very serious disorders, and it has been under this tension, as I understand American constitutional development, that our courts have resorted to legislation. Nor is it fair for us to measure the sagacity of our great jurists by the standard of modern experience. They lived before the acceleration of movement by electricity and steam. They could not foresee the rapidity and the profundity of the changes which were imminent. Hence it was that, in the spirit of great lawyers, who were also possibly men tinged with a certain enthusiasm for the ideal, they began their work by ruling on the powers and limitations of sovereignty, as if they were ruling on the necessity of honest intent in dealings with one's neighbor.

In 1789 General Washington is said to have offered John Jay his choice of offices under the new government, and Jay chose the chief justiceship, because there he thought he could make his influence felt most widely. If so he had his wish, and very shortly met with disappointment. In the August Term of 1792, one Chisholm, a citizen of South Carolina, sued the State of Georgia for a debt. Georgia declined to appear, and in February, 1793, Jay, in an elaborate opinion, gave judgment for Chisholm. Jay was followed by his associates with the exception of Iredell, J., of North Carolina. Forthwith a ferment began, and in the very next session of Congress an amendment to the Constitution was proposed to make such suits impossible. In January, 1798, five years after the case was argued, this amendment was declared to be adopted, but meanwhile Jay had resigned to become governor of New York. In December, 1800, he was again offered the chief justiceship by John Adams, on the resignation of Oliver Ellsworth, but Jay resolutely declined. I have often wondered whether Jay's mortification at having his only important constitutional decision summarily condemned by the people may not have given him a distaste for judicial life.

The Federalist attempt to enforce on the states a positive rule of economic morality, therefore, collapsed at once, but it still remained possible to approach the same problem from its negative side, through the clause of the Constitution which forbade any state to impair the validity of contracts, and Marshall took up this aspect of the task where Jay left it. In Marshall's mind his work was simple. He had only to determine the nature of a contract, and the rest followed automatically. All contracts were to be held sacred. Their greater or less importance was immaterial.

In 1810 Marshall expounded this general principle in Fletcher v. Peck.18 "When … a law is in its nature a contract … a repeal of the law cannot devest" rights which have vested under it. A couple of years later he applied his principle to the extreme case of an unlimited remission of taxation.19 The State of New Jersey had granted an exemption from taxation to lands ceded to certain Indians. Marshall held that this contract ran with the land, and inured to the benefit of grantees from the Indians. If the state cared to resume its power of taxation, it must buy the grant back, and the citizens of New Jersey must pay for their improvidence.

Seven years later, in 1810, Marshall may, perhaps, be said to have reached the culmination of his career, for then he carried his moral standard to a breaking strain. But, though his theory broke down, perhaps the most striking evidence of his wonderful intellectual superiority is that he convinced the Democrat, Joseph Story,–a man who had been nominated by Madison to oppose him, and of undoubted strength of character,–of the soundness of his thesis. In 1769 King George III incorporated certain Trustees of Dartmouth College. The charter was accepted and both real and personal property were thereupon conveyed to this corporate body, in trust for educational purposes. In 1816 the legislature of New Hampshire reorganized the board of trustees against their will. If the incorporation amounted to a contract, the Court was clear that this statute impaired it; therefore the only really debatable issue was whether the grant of a charter by the king amounted to a contract by him, with his subjects to whom he granted it. After prolonged consideration Marshall concluded that it did, and I conceive that, in the eye of history, he was right. Throughout the Middle Ages corporate privileges of all kinds, but especially municipal corporate privileges, had been subjects of purchase and sale, and indeed the mediaeval social system rested on such contracts. So much was this the case that the right to return members of Parliament from incorporated boroughs was, as Lord Eldon pointed out in the debates on the Reform Bill, as much private property "as any of your lordships'" titles and peerages.

It was here that Marshall faltered. He felt that the public would not support him if he held that states could not alter town and county charters, so he arbitrarily split corporations in halves, protecting only those which handled exclusively private funds, and abandoning "instruments of government," as he called them, to the mercy of legislative assemblies.

Toward 1832 it became convenient for middle class Englishmen to confiscate most of the property which the aristocracy had invested in parliamentary boroughs, and this social revolution was effected without straining the judicial system, because of the supremacy of Parliament. In America, at about the same time, it became, in like manner, convenient to confiscate numerous equally well-vested rights, because, to have compensated the owners would have entailed a considerable sacrifice which neither the public nor the promoters of new enterprises were willing to make. The same end was reached in America as in England, in spite of Chief Justice Marshall and the Dartmouth College Case, only in America it was attained by a legal somerset which has disordered the course of justice ever since.

In 1697 King William III incorporated Trinity Church in the City of New York, confirming to the society the possession of a parcel of land, adjoining the church, to be used as a churchyard for the burial of the dead. In 1823 the government of New York prohibited interments within the city limits, thus closing the churchyard for the purposes for which it had been granted. As compensation was refused, it appeared to be a clear case of confiscation, and Trinity resisted. In the teeth of recent precedents the Supreme Court of New York decided that, under the Police Power, the legislature of New York might authorize this sort of appropriation of private property for sanitary purposes, without paying the owners for any loss they might thereby sustain.20

The court thus simply dispensed the legislature from obedience to the law, saying in effect, "although the Constitution forbids impairing contracts, and although this is a contract which you have impaired, yet, in our discretion, we suspend the operation of the Constitution, in this instance, by calling your act an exercise of a power unknown to the framers of the Constitution." I cannot doubt that Marshall would have flouted this theory had he lived to pass upon it, but Marshall died in 1835, and the Charles River Bridge Case, in which this question was first presented to the Supreme Court of the United States, did not come up until 1837. Then Joseph Story, who remained as the representative of Marshall's philosophy upon the bench, vehemently protested against the latitudinarianism of Chief Justice Taney and his associates, but without producing the slightest effect.