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Constitution, Court, and the People

ISSUE:  Summer 1939

Court over Constitution. By Edward S. Corwin. Princeton: Princeton University Press. $2.50. Equality and the Law. By Louis A. Warsoff. New York: Uveright Publishing Corporation. $3.00. The Spirit of the Legal Profession. By Robert N. Wilkin. New Haven: Yale University Press. $2.50. The Administrative Process. By James M. I.andis. New Haven: Yale University Press. $2.00.

Observers of the contemporary political and governmental scene are compelled to agree, in reviewing the outcome of the President’s court reorganization drive, that whoever won the applause, Roosevelt clearly won the ball game. The implications of this struggle, however, run far beyond those of a transient clash of social and economic ideologies. In another decade it may well be that the New Deal will be discovered to have been as inadequate, in its way, as an earlier New Freedom, and a still earlier Square Deal. Unless we are able to draw the right conclusions from the melange of current history, and realign our basic conceptions of the relative roles of the Constitution, the Executive, the Congress, the Court, and the People in the direction of national policy, the next game in the series yet may be lost to the proponents of “On High” constitutionalism.

It is precisely this question of relativities which is crucial in the present juncture of American constitutional development. To be sure, the change which the President has been able to bring about in the attitude of the Court has assured the validity of the Social Security Act, the continuation of the experiment in the Tennessee Valley, the legality of the Securities Exchange Act, and, in fact, the constitutional impregnability of the composite of social reforms designated as the New Deal. But this is less important in the long run than the new relativities established by the Court’s revision of its own role in the American constitutional process.

The evaluation of the factors in the new position of the Court is the difficult task to which Edward S. Corwin brings his fine abilities of historical and legal research and his keen sensibilities of modern social realities, in “Court over Constitution.” While a good many of the recent efforts on the part of some students of constitutional law to “go back to the intent of the framers” have not been of a type calculated to command the respect of liberals, Dr. Corwin’s adventures in hobnobbing with the founding fathers is another thing—this is no Alice through the Looking Glass travelogue. In discussing the Court as a curb on Congress, Dr. Corwin points out in ample detail the philosophical and historical deficiencies of the doctrine of judicial supremacy, demonstrating that, originally at least, the wish was father to the thought, and that latterly the doctrine is more an ex post facto rationalization of a political accident than a clean-cut principle upon which the framers acted. But Dr. Corwin is no scholastic, and judicial review is a fact. More significant in modern times is the scope and finality of the Court’s pronouncements.

Dr. Corwin’s discussion of the Court as Constitution-maker is devoted to the thesis that the constitutional documerit, viewed as a bulwark of individual rights, has been absorbed into constitutional law, and that constitutional law, in turn, is derived chiefly not from the constitutional document but from outside ideas and theories, with regard to which the Court has from the beginning exercised a highly selective function. He points out that the Federalist credo of Marshall was bodily incorporated into the decision of Mc-Culloch v. Maryland, and that the states’ rights bias of Taney was equally written into the Dred Scott Decision, Kentucky v. Dennison, and Ableman v. Booth. The decisions of the Court in subsequent decades have not been less remarkable for their reflection of the social and economic predilections of the justices, and Dr. Corwin suggests with some reason that Justice Holmes’ conclusion that he “was not God AM mighty” may have been connected with the fact that his life had been spent in government service rather than as a corporation lawyer. Dr. Corwin’s conclusion should be graven deep in the consciousness of the judiciary: “The question of the adaptation of the Constitution has become in important measure the question of the adaptation of judicial review—yet adaptation to what? To the best interests of the nation? Such a desirable consummation could only be a matter of faith. That to which all our governing institutions must remain adapted if they are to retain their popular character is the dominant political force in the country as revealed at the ballot box. In the long run the majority is entitled to have its way, and the run must not be too long either!”

The discussion of the Court as molder of the Federal system is, to a considerable extent, a charting of one of the more difficult problems with which the new Court is bound to be confronted—the realignment of national and state functions and responsibilities to fit the facts of modern society. Dr. Corwin suggests that states’ rights, like civil liberties, more often need to be protected by the national government than against it. One is certainly inclined to agree that recent expansions of national power in the industrial field have been largely of this protective type. But recent years have brought another type of national expansion which, while not new to the American political scene, has produced profound changes in the traditional patterns of government.

By entering into cooperation with the states, [says Dr. Corwin] and by bringing legislative and administrative support to their policies, the national government has enhanced their effectiveness as governmental agencies immensely in the performance of some of their most time-honored functions—the repression of crime, for example. At the same time, it has stimulated them to enter upon certain new services, such as social insurance, which any industrialized community must today undertake. In short, the national government and the states have been geared into one another as parts of a single governmental mechanism instead of pitted against one another in a mutually defeating struggle for power.

Dr. Corwin’s chapter on the Pollock Case is a case study which points the moral and adorns the tale he has told in preceding chapters. This celebrated case, which involved a decision concerning the direct character of a Federal tax on incomes, compelled the Court to embrace an inconsistency which rose continually to damn its subsequent holdings for many years, until the enactment of the Sixteenth Amendment. The vacillations of Justices Brewer and Gray in respect of the basic premises involved in the Pollock decision go far toward dispelling the myth of sanctity and non-partisanship with which the Court has clothed its oracular utterances. Dr. Corwin’s concluding chapter is a plea for less adulation of the Constitution as an historical miracle, and more respect for it as a serviceable document capable of meeting, within its terms, the necessities of our times. The appendices of this truly remarkable little book contain the Letters of Brutus on judicial review, which are the most thorough examination of the subject made prior to the adoption of the Constitution in 1789.

Three other books of recent appearance may well be classified as footnotes to Dr. Corwin’s masterly treatise. Louis A. Warsoff’s “Equality and the Law” is a carefully done piece of historical-legal research on the growth of human and property rights in America as based upon and protected by the Fourteenth Amendment to the Constitution. Since Mr. Justice Black has recently advanced the view that, according to his lights, a corporation is not a person within the protection of the Fourteenth Amendment, this study is not without important implications for the new dispensation in our halls of justice. Dr. Warsoff admits that the Fourteenth Amendment is not what it was in 1872, and, in fact, that it never was. He does not subscribe, however, to the idea that the protections of the amendment should be precipitately withdrawn from corporations simply because they have been quicker to recognize a good thing than the Negroes have been. He does admit that there are valid reasons for distinguishing between individuals and corporations under certain fact situations, but not for denying all rights under the amendment to the latter. It may well be that history, social justice, and common sense are here on the side of Dr. Warsoff and not of Mr. Justice Black. There is a way of getting down off the extremely long limb to which a property-minded court has taken us during the past sixty years that is better than sawing off the limb. A well planned and carefully executed statutory retreat, with rear-guard actions not too bitterly contested, certainly offers less chaotic prospects and will get us where we wish to go in about the same time as more drastic methods. Lawyerlike, Dr. Warsoff disregards that more sinister element in the denial of human rights under the Fourteenth Amendment, the inaccessibility of final justice to the overwhelming majority of our citizens, and for this reason some of the nicer points of jurisprudence in his beautifully argued conclusions ring more than a little hollow.

Robert N. Wilkin has written a very readable volume, full of interesting bits of legal lore, historical incident, sentimentality, and wishful thinking. “The Spirit of the Legal Profession” has as its major thesis that “whenever the professional influence has predominated there have been good judges and efficient administration of justice, and that the contrary has been true whenever that influence has been subordinated to imperial, political, or commercial influence.” This is a very captivating thesis from an academic point of view, but since there has never been a time when “political or commercial influence” has not dominated the guild, at least in America, the frame of reference of the entire argument is somewhat theoretical. Mr. Wilkin quotes with hearty approval the time-worn text of the Constitution idolaters: “the most wonderful work ever struck off at a given time by the brain and purpose of man.” He goes on to liken the lawyer to a man rowing a boat, who moves steadfastly forward by fixing his eyes on stationary objects in the rear. This sort of navigation may be well enough in the rowboat jurisdictions, but it has not proved satisfactory for navigating the Ship of State. All in all, though, the analogy is juster perhaps than Mr. Wilkin intended. The book is smooth, and will go well on the hustings—for which it probably was ultimately intended. It is hauntingly remindful of the American Bar Association’s disquietude over the Court-reorganization plan, and with wonderful indirection manages to say most of the clever things that come to mind the morning after.

James M. Landis’ “The Administrative Process” is a very interesting discussion of administrative tribunals. The book provides an extremely competent and illuminating discussion of one of the more significant governmental trends of this generation—the confiding of broad powers of adjudication to special expert tribunals, such as the Securities and Exchange Commission, the Labor Relations Board, the Federal Communications Commission, and similar agencies. Dean Landis discusses in a very practical and realistic way the factors governing the policies of these special tribunals, their relations to the courts and other administrative agencies, their contacts with the economic groups whose activities they supervise and regulate, and the future of administrative tribunals in our governmental system. He brings to bear in these discussions his own experience as a member of the Federal Trade Commission and as chairman of the Securities and Exchange Commission. To those students of public j affairs who wish to understand why such tribunals are a necessary and essential part of our government, and to appreciate the tasks with which they are confronted, this is certainly on the required list. As Dean Landis points out, law loses nothing by relegating technical questions to technical experts; indeed, if the regularly constituted courts were less insistent upon substituting their necessarily amateur views concerning many complicated problems of modern social life for the considered conclusions of technically qualified specialists, the law itself might gain in dignity and in popular respect.


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