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Through the Judicial Spectrum

ISSUE:  Spring 1940
Mr. Justice Miller and the Supreme Court, 1862-1890. By Charles Fairman. Cambridge: Harvard University Press. $4.50. Marshall and Taney, Statesmen of the Law. By Ben W. Palmer. Minneapolis: The University of Minnesota Press. $3.50. The Problem of the Constitution. By Edward Jerome. New York: Longmans, Green and Co. $2.50. The International Law of John Marshall. By Benjamin Munn Ziegler. Chapel Hill: The University of North Carolina Press. $3.50.

The three judicial giants of the nineteenth century in the field of constitutional law were Marshall, Taney, and Miller. Marshall’s fame lies in his development of the theory of judicial review and in an intense nationalism which led him to support the expansion of Federal power. The accomplishment of his successor, Taney, in upholding the police power of the states has been too long overshadowed by the unfortunate Dred Scott decision. Miller, the post Civil War liberal, has just received his first biography, one that shows him to be far greater than his better known contemporaries.

Charles Fairman’s “Mr. Justice Miller and the Supreme Court, 1862-1890” is a work of impressive scholarship as meritorious as Swisher’s biography of Mr. Justice Field. It is a magnificent study of the Supreme Court during the difficult post-Civil War years. The Supreme Court was then a very human vessel, its members not well equipped to solve the political and economic problems of Reconstruction, greenback legislation, railroad receiverships, and income taxation. Some, like Justices Davis and Chase, had presidential ambitions; another, senile and incompetent, would not resign while a Republican was in the White House. It is significant that of the more than sixty judges who passed upon the legal tender statute “every Democrat held the Act invalid and every Republican but one held it constitutional.”

Miller was a judicial statesman, like Marshall before him, who recognized the needs of an expanding nationalism. He was less disposed than his colleagues to declare legislation of which he disapproved unconstitutional. “No other justice of that time,” says Mr. Fairman, “was so reconciled to the exercise of power by the political branches of government as was Judge Miller.” He fought openly against the use of the Fourteenth Amendment “to strike down state action which seemed unreasonable to a majority of the justices.” And conversely, with the realism best demonstrated today by Mr. Justice Black, he recognized the dangers of the new finance capitalism. His approach to problems that still confront us was distinctly progressive. He fought the corruption in railroad receiverships. Administrative agencies of the government were treated with solicitude by him; he would have made short shrift of the ninety-odd injunctions issued against the National Labor Relations Board. He was less tolerant with the Congressional committees engaged in fishing expeditions and character assassinations. In language peculiarly apposite to the present Dies and Smith investigations, he once wrote: “I think the public has been much abused, the time of legislative bodies uselessly consumed and the rights of the citizen ruthlessly invaded under the now familiar pretext of legislative investigation and that it is time that it was understood that court and grand juries are the only inquisitions into crime in the country.”

Ben W. Palmer’s “Marshall and Taney” is the first popular comparison of these two great judges. It makes no pretense of equaling the more solid contributions of Beveridge and Swisher in the same field. It is hampered by certain chronological prepossessions which make our author concerned with the fact that Marshall was born “eleven weeks after Braddock’s defeat and within the same thirty years as the births of Washington, Jefferson, Madison, Patrick Henry and George Mason.” He finds it significant of Marshall’s conservatism that he sailed from Europe “on the ship named after that great conservative, the Alexander Hamilton.”

“Marshall and Taney” is not a product of the kind of thought and scholarship that build a biography of the quality of Mr. Fairman’s. It has evidently been hastily assembled after a reading of the dozen cases which it discusses and from which it makes liberal quotations. Nevertheless, Mr. Palmer has given the layman a very readable account of the Supreme Court under Marshall and Taney. Even law school students would learn more from him than from the orthodox “cases on constitutional law.” In addition, he has given a popular analysis of the development of the sociological and “breakfast table” theories of judicial decision.

It is very unusual to meet a conservative rebel who believes that Marshall and his successors perverted constitutional law with an injection of political toxin. In Edward Jerome, we meet a novice in the field of constitutional law; he entered the lists in 1935 and is already jousting with hallowed tradition. His essay, “The Problem of the Constitution,” insists, in opposition to Messrs. Palmer and Fairman, that judges must not be human beings.

Mr. Jerome, by a hasty examination of the proceedings of the Constitutional Convention and a literal reading of the Constitution, has convinced himself that our constitutional law is all wrong. A strict constructionist, he asserts that the Constitution is a grant of limited power rendering certain conduct immune from restraint by Congress irrespective of its effect upon interstate commerce and the general welfare. Much of our trouble has arisen from “the drift from a republic into a democracy”; since we no longer have representatives who can govern us, the Constitution has nobody to restrain. We need a new Constitution for protection “against the direct action of an unrestrained popular majority.”

The essay’s first premise, that “the Constitution was prepared on the theory that neither states nor nation would engage in extensive regulation of the conduct of citizens,” is incorrect. The Founding Fathers were well acquainted with regulatory legislation fixing prices, wages, and standards. Laissez faire was a concept written into the Constitution many years later by late nineteenth century jurists who desired to censor progressive legislation. It is no wonder that Mr. Jerome has overlooked this basic truth, for his book shows an overdependence upon Hohfeld and Von Hoist, neither of whom is authoritative on this subject, and the twenty-eight cases he cites are a poor sampling of the great progress of the law. One cannot discuss constitutional law intelligently without having read Corwin, Warren, Frankfurter, and the many others of diverse political views who know whereof they write.

After leaving Mr. Jerome it is a relief to examine so obvious a product of careful research as “The International Law of John Marshall,” written by Benjamin Munn Ziegler of Amherst College. This is a scholarly, if uninspired, study of Marshall’s views on neutrality, piracy, extradition, and other phases of international law. One may be permitted some skepticism in reading this volume not only because world events seem to have made the subject academic in its most important aspect, that of world peace, but also because Marshall himself made slight judicial contribution to the subject. He had little learning in any law, and less in the law of nations. His practical experience was limited to his work as envoy to France in the XYZ Affair and his brief work as Secretary of State under President Adams. The reiteration of well settled legal principles and their application to new fact situations seem to have been his only accomplishments.

However, as an interpreter of international law he was able to give play to the qualities of statesmanship to which Mr. Jerome took exception in the field of constitutional law. America is a country of traditional neutrality and it was Marshall who first helped it steer this course. Professor Ziegler elaborately describes Marshall’s efforts to protect commerce and private property by expanding neutral rights at the expense of the belligerents. The Chief Justice insisted upon the right of every independent nation to be neutral, but also recognized the concomitant obligations of the neutral. Our cash-and-carry law, which aims at achieving neutrality while aiding the Allies, would have been incomprehensible to him. As he wrote Talleyrand: “A nation to violate its neutrality must manifest a partiality for one of the belligerent powers, must accord favors not stipulated by preexisting treaties to one, which it refuses to the other.”

These books represent a fair cross-section of the last few years’ production in the field of Supreme Court law. The reader will gain from their examination a knowledge of the political and economic history of the United States through the fascinating spectrum provided by the judicial forum. And he will certainly become aware of the meaning of judicial review and of the extraordinary power of the courts over legislation. If this were the sole fruit of the dispute between the New Deal and the Supreme Court, that bitter controversy would stand justified.


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