The Constitution of the United States of America: Analysis and Interpretation Part 101

A third limitation to the exercise of judicial review is the rule, partly inherent in the judicial process, but also partly a precautionary rule adopted by the Court in order to avoid clashes with the "political branches," is that the federal courts will not decide "political questions."[275]

The "Reasonable Doubt" Doctrine

A fourth rule, of a precautionary nature, is that no act of legislation will be declared void except in a very clear case, or unless the act is unconst.i.tutional beyond all reasonable doubt.[276] Sometimes this rule is expressed in another way, in the formula that an act of Congress or a State legislature is presumed to be const.i.tutional until proved otherwise "beyond all reasonable doubt."[277] In operation this rule is subject to two limitations which seriously impair its efficacy. The first is that the doubts which are effective are the doubts of the majority only. If five Justices of learning and attachment to the Const.i.tution are convinced that the statute is invalid and four others of equal learning and attachment to the Const.i.tution are convinced that it is valid or are uncertain that it is invalid, the convictions of the five prevail over the convictions or doubts of the four, and vice versa.

Second, the Court has made exceptions to this rule in certain categories of cases. At one time statutes interfering with freedom of contract were presumed to be unconst.i.tutional until proved valid,[278] and more recently presumptions of invalidity have appeared to prevail against statutes alleged to interfere with freedom of expression and of religious worship, which have been said to occupy a preferred position in the Const.i.tution.[279]

Exclusion of Extra-Const.i.tutional Tests

A fifth maxim of const.i.tutional interpretation runs to the effect that the Courts are concerned only with the const.i.tutionality of legislation and not with its motives, policy or wisdom, or with its concurrence with natural justice, fundamental principles of government, or spirit of the Const.i.tution.[280] In various forms this maxim has been repeated to such an extent that it has become trite and has increasingly come to be incorporated in const.i.tutional cases as a reason for fortifying a finding of unconst.i.tutionality. Through absorption of natural rights doctrines into the text of the Const.i.tution, the Court was enabled to reject natural law and still to partake of its fruits, and the same is true of the _laissez faire_ principles incorporated in judicial decisions from about 1890 to 1937. Such protective coloration is transparent in such cases as Lochner _v._ New York[281] and United States _v._ Butler.[282]

Disallowance by Statutory Interpretation

A sixth principle of const.i.tutional interpretation designed by the courts to discourage invalidation of statutes is that if at all possible the courts will construe the statute so as to bring it within the law of the Const.i.tution.[283] At times this has meant that a statute was construed so strictly in order to avoid const.i.tutional difficulties that its efficacy was impaired if not lost.[284] A seventh principle closely related to the preceding one is that in cases involving statutes, portions of which are valid and other portions invalid, the courts will separate the valid from the invalid and throw out only the latter unless such portions are inextricably connected.[285] Sometimes statutes expressly provide for the separability of provisions, but it remains for the courts in the last resort to determine whether the provisions are separable.[286]

_Stare Decisis_ in Const.i.tutional Law

An eighth limitation on the power of the federal courts to invalidate legislation springs from the principle of _stare decisis_, a limitation which has been progressively weakened since the Court proceeded to correct "a century of error" in Pollock _v._ Farmers' Loan & Trust Co.[287] Because of the difficulty of amending the Const.i.tution the Court has long taken the position that it will reverse its previous decisions on const.i.tutional issues when convinced they are grounded on error more quickly than in other types of cases in which earlier precedents are not absolutely binding.[288] The "const.i.tutional revolution" of 1937 produced numerous reversals of earlier precedents as other sections of this study disclose, and the process continues. In Smith _v._ Allwright,[289] which reversed Grovey _v._ Townsend,[290]

Justice Reed cited fourteen cases decided between March 27, 1937, and June 14, 1943, in which one or more earlier decisions of const.i.tutional questions were overturned. Although the general effect of the numerous reversals of precedent between 1937 and 1950 was to bring judicial interpretation more generally into accord with the formal text of the Const.i.tution, and to dispose of a considerable amount of const.i.tutional chaff, Justice Roberts was moved to say in the Allwright case that frequent reversals of earlier decisions tended to bring adjudications of the Supreme Court "into the same cla.s.s as a restricted railroad ticket, good for this day and train only."[291] A ninth limitation which has nothing to do with statutory or const.i.tutional construction as such and which is altogether precautionary is that the Court will declare no legislative act void unless a majority of its full membership so concurs.[292]

The c.u.mulative effect of these limitations is difficult to measure. The limitation imposed by the case concept definitely has the effect of postponing judicial nullification, but beyond this the most that can be said is that const.i.tutional issues affecting important issues can ordinarily be presented in a case and so will sooner or later reach the Court. The limitations of the presumptions of statutory validity, lack of concern with the wisdom of the legislation, alternative construction, separability of provisions and the like depend for their effectiveness upon the consciousness of the individual judge of the judicial proprieties and have been equally endorsed by those judges most frequently addressing themselves to the task of finding legislation invalid. The limitation imposed by the concept of political questions does not limit in any significant way the power of the federal courts to review legislation, but does remove from judicial scrutiny vast areas of executive action. In general, therefore, the extent to and manner in which the courts will exercise their power to review legislation is a matter of judicial discretion.

ALLEGATIONS OF FEDERAL QUESTION

The question of jurisdiction of cases involving federal questions is determined by the allegations made by the plaintiff and not upon the facts as they may emerge or by a decision of the merits.[293]

Plaintiffs seeking to docket such cases in the federal courts must set forth a substantial claim under the Const.i.tution, laws or treaties of the United States.[294] Nor does jurisdiction arise simply because an averment of a federal right is made, "if it plainly appears that such averment is not real and substantial, but is without color of merit."[295] The federal question averred may be insubstantial because obviously without merit, or because its unsoundness so clearly results from previous decisions of the Supreme Court as to foreclose the issue and leaves no room for the inference that the questions sought to be raised can be subjects of controversy.[296] In Gully _v._ First National Bank[297] the Court reviewed earlier precedents and endeavored to restate the rules for determining when a case arises. First there must be a right or immunity created by the Const.i.tution, laws, or treaties of the United States which must be such that it will be supported if the Const.i.tution, laws, or treaties are given one construction, or defeated if given another. Second, a genuine and present controversy as distinguished from a possible or conjectural one must exist with reference to the federal right. Third, the controversy must be disclosed upon the face of the complaint unaided by the answer.[298]

CORPORATIONS CHARTERED BY CONGRESS

The earlier hospitality of the federal courts to cases involving federal questions is also manifested in suits by corporations chartered by Congress. Although in Bank of United States _v._ Deveaux[299] the Court held that the first Bank of the United States could not sue in the federal courts merely because it was incorporated by an act of Congress, the act incorporating the second bank authorized such suits and this authorization was not only sustained in Osborn _v._ Bank of United States,[300] but an act of incorporation was declared to be a law of the United States for purposes of jurisdiction in cases involving federal questions. Consequently, the door was opened to other federally chartered corporations to go into the federal courts after the act of 1875 vested original jurisdiction generally in the lower courts of such questions. Corporations, chartered by Congress, particularly railroads, quickly availed themselves of this opportunity, and succeeded in the Pacific Railroad Removal Cases[301] in removing suits from the State to the federal courts in cases involving no federal question solely on the basis of federal incorporation. The result of this and similar cases was Congressional legislation depriving national banks of the right to sue in the federal courts solely on the basis of federal incorporation in 1882,[302] depriving railroads holding federal charters of this right in 1915,[303] and finally in 1925 removing from federal jurisdiction involving federal questions all suits brought by federally chartered corporations, solely on the basis of federal incorporation, except where the United States holds half of the stock.[304]

REMOVAL FROM STATE COURTS OF SUITS AGAINST FEDERAL OFFICIALS

Of greater significance and of immediate importance to the maintenance of national supremacy are those cases involving State prosecution of federal officials for acts committed under the color of federal authority. As early as 1815 Congress provided temporarily for the removal of prosecutions against customs officials for acts done or omitted as an officer or under color of an act of Congress, except for offenses involving corporal punishment.[305] In 1833, in partial answer to South Carolina's Nullification Proclamation, Congress enacted the so-called Force Act providing for removal from State courts of all prosecutions against any officer of the United States or under color thereof.[306] As a part of the Civil War legislation and limited to the war period, an act in 1863 provided for removal from State courts of cases brought against federal officials for acts committed during the war and justified under the authority of Congress and the President.[307] The act of 1833, with amendments, has been kept in force. Since 1948 the United States Code has provided for the removal to a federal district court of civil actions or criminal prosecutions in State courts against "any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, t.i.tle or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue."[308]

Tennessee _v._ Davis

The validity of the act of 1833 as it was carried over into the Revised Statutes, -- 643, was contested in Tennessee _v._ Davis,[309] which involved the attempt of a State to prosecute a deputy collector of internal revenue who had killed a man while seeking to seize an illicit distilling apparatus. In an opinion in the tradition of Martin _v._ Hunter's Lessee[310] and Cohens _v._ Virginia,[311] Justice Strong emphasized the power of the National Government to protect itself in the exercise of its const.i.tutional powers, the inability of a State to exclude it from the exercise of any authority conferred by the Const.i.tution, and the comprehensive nature of the term "cases in law and equity arising under the Const.i.tution, the laws of the United States, and treaties * * *" which was held to embrace criminal prosecutions as well as civil actions. Then speaking of a case involving federal questions he said: "It is not merely one where a party comes into court to demand something conferred upon him by the Const.i.tution or by a law or treaty. A case consists of the right of one party as well as the other, and may truly be said to arise under the Const.i.tution or a law or a treaty of the United States whenever its correct decision depends upon the construction of either. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they const.i.tute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are a.s.serted."[312]

SUPREME COURT REVIEW OF STATE COURT DECISIONS

In addition to the const.i.tutional issues presented earlier by -- 25 of the act of 1789, which was superseded in 1934 when the "Writ of error"

was replaced by "Appeal," issues have continued to arise concerning its application which go directly to the nature and extent of the Supreme Court's appellate jurisdiction. These have to do with such matters as the existence of a federal question, exhaustion of remedies in State courts, and review of findings of fact by State courts. Whether a federal question has been adequately presented to and decided by a State court has been held to be in itself a federal question, to be decided by the Supreme Court on appeal.[313] Likewise a contention that a decision of a State court disregarded decrees of a United States Court has been held to bring a case within the Court's jurisdiction;[314] also a decision by a State court which was adverse to an a.s.serted federal right although, as the record of the case showed, it might have been based upon an independent and adequate nonfederal ground.[315] This latter ruling, however, was qualified during the same term of Court in a case which held that it is essential to the jurisdiction of the Supreme Court, in reviewing a decision of a State court that it must appear affirmatively from the record, not only that a federal question was presented for determination, but that its decision was necessary to the determination of the cause; that the federal question was actually decided, or that the judgment could not have been given without deciding it.[316]

These rules all flow from the broader principle that if the laws and Const.i.tution of the United States are to be observed, the Supreme Court cannot accept as final the decision of a State court on matters alleged to give rise to an a.s.serted federal right.[317] Consequently, the Supreme Court will review the findings of fact by a State court where a federal right has been denied by a finding shown by the record to be without evidence to support it, and where a conclusion of law as to a federal right and findings of facts are so intermingled as to make it necessary to a.n.a.lyze the facts in order to pa.s.s upon the federal question.[318] It should be noted, too, that barring exceptional circ.u.mstances such as those in Gilchrist _v._ Interborough Rapid Transit Co.,[319] which involved intricate contracts between the City of New York and the company, the meaning of which had not been determined by the State courts, or explicit statutory provisions as in 28 U.S.C.A.

---- 1331-1332, 1345, 1359, resort to a federal court may precede the exhaustion of remedies of State courts.[320]

Suits Affecting Amba.s.sadors, Other Public Ministers, and Consuls

The earliest interpretation of the grant of original jurisdiction to the Supreme Court came in the Judiciary Act of 1789, which conferred on the federal district courts jurisdiction of suits to which a consul might be a party. This legislative interpretation was sustained in 1793 in a circuit court case in which the judges held that Congress might vest concurrent jurisdiction involving consuls in the inferior courts and sustained an indictment against a consul.[321] Many years later, in 1884, the Supreme Court held that consuls could be sued in the federal courts,[322] and in another case in the same year declared sweepingly that Congress could grant concurrent jurisdiction to the inferior courts in cases where the Supreme Court has been invested with original jurisdiction.[323] Nor does the grant of original jurisdiction to the Supreme Court in cases affecting amba.s.sadors and consuls of itself preclude suits in State courts against consular officials. The leading case is Ohio ex rel. Popovici _v._ Agler[324] in which a Rumanian vice-consul contested an Ohio judgment against him for divorce and alimony. Justice Holmes, speaking for the Court, said: "The words quoted from the Const.i.tution do not of themselves and without more exclude the jurisdiction of the State. * * * It has been understood that, 'the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.' * * * In the absence of any prohibition in the Const.i.tution or laws of the United States it is for the State to decide how far it will go."

WHEN "AMBa.s.sADORS" ETC., ARE "AFFECTED"

A number of incidental questions arise in connection with the phrase "affecting amba.s.sadors and consuls." Does the amba.s.sador or consul to be affected have to be a party in interest, or is a mere indirect interest in the outcome of the proceeding sufficient? In United States _v._ Ortega,[325] the Court ruled that a prosecution of a person for violating international law and the laws of the United States by offering violence to the person of a foreign minister was not a suit "affecting" the minister, but a public prosecution for vindication of the laws of nations and the United States. Another question concerns the official status of a person claiming to be an amba.s.sador, etc. In Ex parte Baiz,[326] the Court refused to review the decision of the Executive with respect to the public character of a person claiming to be a public minister and laid down the rule that it has the right to accept a certificate from the Department of State on such a question. A third question was whether the clause included amba.s.sadors and consuls accredited by the United States to foreign governments. The Court held that it includes only persons accredited to the United States by foreign governments.[327] However, matters of especial delicacy such as suits against amba.s.sadors and public ministers or their servants, where the law of nations permits such suits, and in all controversies of a civil nature to which a State is a party,[328] Congress has made the original jurisdiction of the Supreme Court exclusive of that of other courts. By its compliance with the Congressional distribution of exclusive and concurrent original jurisdiction, the Court has tacitly sanctioned the power of Congress to make such jurisdiction exclusive or concurrent as it may choose. Likewise, as in the Popovici case, it has implied that Congress, if it chose, could make the court's jurisdiction of consular officials exclusive of State Courts.

Cases of Admiralty and Maritime Jurisdiction

ORIGIN AND CHARACTERISTICS

The admiralty and maritime jurisdiction of the federal courts had its origin in the jurisdiction vested in the courts of the Admiral of the English Navy. Prior to independence, vice-admiralty courts were created in the Colonies by commissions from the English High Court of Admiralty.

After independence, the States established admiralty courts, from which at a later date appeals could be taken to a court of appeals set up by Congress under the Articles of Confederation.[329] Since one of the objectives of the Philadelphia Convention was the promotion of commerce and the removal of obstacles to it, it was only logical that the Const.i.tution should deprive the States of all admiralty jurisdiction and vest it exclusively in the federal courts.

CONGRESSIONAL INTERPRETATION OF THE ADMIRALTY CLAUSE

The Const.i.tution uses the terms "admiralty and maritime jurisdiction"

without defining them. Though closely related the words are not synonyms. In England the word "maritime" referred to the cases arising upon the high seas, whereas "admiralty" meant primarily cases of a local nature involving police regulations of shipping, harbors, fishing, and the like. A long struggle between the admiralty and common law courts had, however, in the course of time resulted in a considerable curtailment of English admiralty jurisdiction. For this and other reasons, a much broader conception of admiralty and maritime jurisdiction existed in the United States at the time of the framing of the Const.i.tution than in the Mother Country.[330] At the very beginning of government under the Const.i.tution, Congress conferred on the federal district courts exclusive original cognizance "of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts, as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; * * *"[331]

This broad legislative interpretation of admiralty and maritime jurisdiction soon won the approval of the federal circuit courts, which ruled that the extent of admiralty and maritime jurisdiction was not to be determined by English law but by the principles of maritime law "as respected by maritime courts of all nations and adopted by most, if not by all, of them on the continent of Europe."[332]

JUDICIAL APPROVAL OF CONGRESSIONAL INTERPRETATION

Although a number of Supreme Court decisions had earlier sustained the broader admiralty jurisdiction on specific issues,[333] it was not until 1848 that the Court ruled squarely in its favor, which it did by declaring that, "whatever may have been the doubt, originally, as to the true construction of the grant, whether it had reference to the jurisdiction in England, or to the more enlarged one that existed in other maritime countries, the question has become settled by legislative and judicial interpretation, which ought not now to be disturbed."[334]

The Court thereupon proceeded to hold that admiralty had jurisdiction _in personam_ as well as _in rem_, over controversies arising out of contracts of affreightment between New York and Providence.

TWO TYPES OF CASES

Admiralty and maritime jurisdiction comprises two types of cases: (1) those involving acts committed on the high seas or other navigable waters; and (2) those involving contracts and transactions connected with shipping employed on the seas or navigable waters. In the first category, which includes prize cases, and torts, injuries, and crimes committed on the high seas, jurisdiction is determined by the locality of the act; while in the second category subject matter is the primary determinative factor.[335] Specifically, contract cases include suits by seamen for wages,[336] cases arising out of marine insurance policies,[337] actions for towage[338] or pilotage[339] charges, actions on bottomry or respondentia bonds,[340] actions for repairs on a vessel already used in navigation,[341] contracts of affreightment,[342]

compensation for temporary wharf.a.ge,[343] agreements of consortship between the masters of two vessels engaged in wrecking,[344] and surveys of damaged vessels.[345] In the words of the Court in Ex parte Easton,[346] admiralty jurisdiction "extends to all contracts, claims and services essentially maritime."

MARITIME TORTS

Jurisdiction of maritime torts depends exclusively upon the commission of the wrongful act upon navigable waters[347] regardless of the voyage and the destination of the vessel.[348] By statutory elaboration, as well as judicial decision, maritime torts include injuries to persons,[349] damages to property arising out of collisions or other negligent acts,[350] and violent dispossession of property.[351] But until Congress makes some regulation touching the liability of parties for marine torts resulting in the death of the persons injured, a State statute providing "that when the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission," applies, and, as thus applied, it const.i.tutes no encroachment upon the commerce power of Congress.[352]