The Constitution of the United States of America: Analysis and Interpretation Part 112

[217] 143 U.S. 649, 670-672 (1892).

[218] Coleman _v._ Miller, 307 U.S. 433, 450 (1939).

[219] Ibid. 452-453.

[220] 328 U.S. 549 (1946).

[221] 287 U.S. 1 (1932). This case involved an unsuccessful attempt to enjoin an election of representatives in Congress in Mississippi because the districts formed by the legislature for that purpose were not a contiguous and compact territory and of equal population and that the redistricting violated article I, -- 4 and the Fourteenth Amendment. The Court held that the provisions of the Reapportionment Act of 1929 did not reenact the requirements of the act of 1911 and that it was therefore unnecessary to determine whether the questions raised were justiciable.

[222] 285 U.S. 355 (1932). Here the Court held that the act of the Minnesota legislature redistricting the State required the governor's signature, and that representatives should be chosen at large until a redistricting was pa.s.sed.

[223] 328 U.S. 549, 565-566.

[224] Ibid. 566 ff.

[225] 335 U.S. 281 (1948).

[226] 335 U.S. 160 (1948).

[227] 339 U.S. 276 (1950).

[228] Charles Warren, The Supreme Court in United States History, I, (Boston, 1922), 110-111. For the full correspondence _see_ 3 Correspondence and Public Papers of John Jay (1890-1893), (edited by Henry Phelps Johnston), 486. According to E.F. Albertsworth, Advisory Functions in Federal Supreme Court, 23 Georgetown L.J., 643, 644-647 (May 1935), the Court rendered an advisory opinion to President Monroe in response to a request for legal advice on the power of the Government to appropriate federal funds for public improvements by responding that Congress might do so under the war and postal powers. The inhibitions of the Court against advisory opinions do not prevent the individual Justices from giving advice or aiding the political departments in their private capacities. Ever since Chief Justice Jay went on a mission to England to negotiate a treaty the members of the Court have performed various nonjudicial functions. John Marshall served simultaneously as Secretary of State and Chief Justice, and later Justice Robert Jackson served as war crimes prosecutor.

[229] For example, Muskrat _v._ United States, 219 U.S. 346, 354 (1911); Chicago & Southern Airlines _v._ Waterman Steamship Corp., 333 U.S. 103, 113 (1948); United Public Workers of America _v._ Mitch.e.l.l, 330 U.S. 75, 89 (1947).

[230] Chicago & Southern Airlines _v._ Waterman Steamship Corp., 333 U.S. 103, 113-114 (1948), citing Hayburn's Case, 2 Dall. 409 (1792); United States _v._ Ferreira, 13 How. 40 (1852); Gordon _v._ United States, 117 U.S. 697 (1864); In re Sanborn, 148 U.S. 222 (1893); Interstate Commerce Commission _v._ Brimson, 154 U.S. 447 (1894); La Abra Silver Mining Co. _v._ United States, 175 U.S. 423 (1899); Muskrat _v._ United States, 219 U.S. 346 (1911); United States _v._ Jefferson Electric Co., 291 U.S. 386 (1934).

[231] Muskrat _v._ United States, 219 U.S. 346 (1911).

[232] United States _v._ Ferreira, 13 How. 40 (1852).

[233] United Public Workers of America _v._ Mitch.e.l.l, 330 U.S. 75, 89 (1947). Here, Justice Reed, for the Court, after a.s.serting that const.i.tutional courts do not render advisory opinions, declared that "'concrete legal issues, presented in actual cases, not abstractions,'

are requisite" for the adjudication of const.i.tutional issues, citing Electric Bond and Share Co. _v._ Securities & Exchange Commission, 303 U.S. 419, 443 (1938); United States _v._ Appalachian Electric Power Co., 311 U.S. 377, 423 (1940); Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450, 461 (1945); and Coffman _v._ Breeze Corporations, 323 U.S. 316, 324 (1945).

[234] 13 How. 40 (1852).

[235] 117 U.S. 697 (1864).

[236] 273 U.S. 70 (1927). In Willing _v._ Chicago Auditorium a.s.sociation, 277 U.S. 274 (1928) certain lessees desired to ascertain their rights under a lease to demolish a building after the lessors had failed to admit such rights on the allegation that claims, fears, and uncertainties respecting the rights of the parties greatly impaired the value of the leasehold. Because there was no showing that the lessors had hampered the full use of the premises or had committed or threatened a hostile act, the Supreme Court sustained the decree of the lower Court dismissing the bill on the ground that the plaintiff was seeking a mere declaratory judgment. The Court admitted that the proceeding was not moot, that there were adverse parties with substantial interests, and that a final judgment could have been rendered, but held, nonetheless, that the proceeding was not a case or controversy merely because plaintiffs were thwarted by its own doubts, or by the fears of others.

Ibid. 289-290.

[237] 219 U.S. 346 (1911).

[238] 274 U.S. 123 (1927).

[239] 288 U.S. 249, 264 (1933).

[240] 300 U.S. 227, 240 (1937).

[241] 28 U.S.C.A. ---- 2201, 2202; 48 Stat. 955.

[242] 300 U.S. 227, 240-241 (1937). The Court distinguished between a justiciable controversy and a dispute of an abstract character, emphasized that the controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests, and reiterated the necessity of "a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts."

[243] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288, 324-325 (1936).

[244] 303 U.S. 419, 443 (1938).

[245] Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450, 461 (1945), citing Nashville, C. & St. L.R. Co. _v._ Wallace, 288 U.S. 249 (1933); Aetna Life Insurance Co. _v._ Haworth, 300 U.S. 227 (1937); Maryland Casualty Co. _v._ Pacific Co., 312 U.S. 270, 273 (1941); Great Lakes Co. _v._ Huffman, 319 U.S. 293, 299, 300 (1943); and Coffman _v._ Breeze Corporation, 323 U.S. 316 (1945). Here, as in other cases, the Court refused to entertain hypothetical, or contingent questions, and the decision of const.i.tutional issues prematurely. For this same rule _see also_, Altvater _v._ Freeman, 319 U.S. 359, 363 (1943).

[246] 306 U.S. 1 (1939).

[247] 307 U.S. 325 (1939).

[248] 312 U.S. 270 (1941).

[249] 300 U.S. 227 (1937).

[250] Maryland Casualty Co. _v._ Pacific Coal & Oil Co., 312 U.S. 270, 273, (1941).

[251] Brillhart _v._ Excess Insurance Co., 316 U.S. 491 (1942). This was a diversity of citizenship case which presented only local questions.

[252] Cohens _v._ Virginia, 6 Wheat. 264, 378 (1821).

[253] Stat. 73, 85-86.

[254] 1 Wheat. 304 (1816).

[255] 6 Wheat. 264 (1821).

[256] Ibid. 379.

[257] Ibid. 422-423. In Martin _v._ Hunter's Lessee, 1 Wheat. 304 (1816), Justice Story had traversed some of these same grounds. He, too, began with the general a.s.sumptions that the Const.i.tution was established by the people of the United States and not by the States in their sovereign capacities, that the Const.i.tution is to be construed liberally, and that the National Government is supreme in relation to its objects; and had concluded that the Supreme Court had authority to review State court decisions under the express provisions of articles III and VI, and also from the necessity that final decision must rest somewhere and from the importance and necessity of uniformity of decisions interpreting the Const.i.tution. Many years later in Ableman _v._ Booth, 21 How. 506, 514-523 (1859), where the Wisconsin Supreme Court, like the Virginia Courts earlier, had declared an act of Congress invalid and disregarded a writ of error from the Supreme Court, Chief Justice Taney on grounds both of dual sovereignty and national supremacy was even more emphatic in his rebuke of State pretensions. His emphasis on the indispensability of the federal judicial power to maintain national supremacy, to protect the States from national encroachments, and to make the Const.i.tution and laws of the United States uniform all combine to enhance the federal judicial power to a degree beyond that envisaged even by Marshall and Story. As late as 1880 the questions presented in the foregoing cases were before the Court in Williams _v._ Bruffy, 102 U.S. 248 (1880), which again involved the refusal of a Virginia court to enforce a mandate of the Supreme Court. By the act of December 23, 1914, 38 Stat. 790, the 25th section of the Judiciary Act of 1789 which was carried over with modifications into the Revised Statutes, -- 690; 28 U.S.C. -- 344 was amended so as to provide for review of State court decisions on certiorari whether the federal claim is sustained or denied. These provisions are now contained in 28 U.S.C.A.

1257 (1948).

The first case involving invalid State legislation arose under a treaty of the United States. Ware _v._ Hylton, 3 Dall. 199 (1797). In Calder _v._ Bull, 3 Dall. 386 (1798), the Court sustained a State statute as not being an _ex post facto_ law. The first case in which a State statute was held invalid as a violation of the Const.i.tution was Fletcher _v._ Peck, 6 Cr. 87 (1810), which came to the Supreme Court by appeal from a United States circuit court and not by a writ of error under section 25. Famous cases coming to the Court under section 25 were Sturges _v._ Crowninshield, 4 Wheat. 122, McCulloch _v._ Maryland, 4 Wheat. 316, and Dartmouth College _v._ Woodward, 4 Wheat. 518. All three were decided in 1819 and the State legislation involved in each was held void.

[258] That the great majority of the most influential members of the Convention of 1787 thought the Const.i.tution secured to courts in the United States the right to pa.s.s on the validity of acts of Congress under it cannot be reasonably doubted. Confining ourselves simply to the available evidence that is strictly contemporaneous with the framing and ratifying of the Const.i.tution, we find the following members of the Convention that framed the Const.i.tution definitely a.s.serting that this would be the case: Gerry and King of Ma.s.sachusetts, Wilson and Gouverneur Morris of Pennsylvania, Martin of Maryland, Randolph, Madison, and Mason of Virginia, d.i.c.kinson of Delaware, Yates and Hamilton of New York, Rutledge and Charles Pinckney of South Carolina, Davie and Williamson of North Carolina, Sherman and Ellsworth of Connecticut. _See_ Max Farrand, Records of the Federal Convention (Yale Univ. Press, 1913); I, 97 (Gerry), 109 (King); II, 73 (Wilson), 76 (Martin), 78 (Mason), 299 (d.i.c.kinson and Morris), 428 (Rutledge), 248 (Pinckney), 376 (Williamson), 28 (Sherman), 93 (Madison); III, 220 (Martin, in "Genuine Information"). The Federalist: Nos. 39 and 44 (Madison), Nos. 78 and 81 (Hamilton). Elliot's Debates (ed. of 1836), II, 1898-1899 (Ellsworth), 417 and 454 (Wilson), 336-337 (Hamilton); III, 197, 208, 431 (Randolph), 441 (Mason), 484-485 (Madison); IV, 165 (Davie). P.L. Ford, Pamphlets on the Const.i.tution, 184 (d.i.c.kinson, in "Letters of Fabius"). Ford, Essays on the Const.i.tution, 295 (Robert Yates, writing as "Brutus"). True these are only seventeen names out of a possible fifty-five, but they designate fully three-fourths of the leaders of the Convention, four of the five members of the Committee of Detail which drafted the Const.i.tution (Gorham, Rutledge, Randolph, Ellsworth, and Wilson) and four of the five members of the Committee of Style which gave the Const.i.tution final form (Johnson, Hamilton, Gouverneur Morris, Madison, and King). Against them are to be pitted, in reference to the question under discussion, only Mercer of Maryland, Bedford of Delaware, and Spaight of North Carolina, the record in each of whose cases is of doubtful implication.

It should be noted, however, that there was later some backsliding.

Madison's record is characteristically erratic. His statement in The Federalist No. 39 written probably early in 1788, is very positive: The tribunal which is to ultimately decide, in controversies relating to the boundary between the two jurisdictions, is to be established under the general government. Yet a few months later (probably October, 1788) he seemed to repudiate judicial review altogether, writing: "In the State Const.i.tutions and indeed in the Federal one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making the decision, it results to them by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper." 5 Writings (Hunt ed.), 294. Yet in June, 1789, we find him arguing as follows in support of the proposals to amend the Const.i.tution which led to the Bill of Rights: "If they are incorporated into the Const.i.tution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every a.s.sumption of power in the Legislature or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Const.i.tution by the declaration of rights." Ibid. 385. Nine years later as author of the Virginia Resolutions of 1798, he committed himself to the proposition that the final power in construing the Const.i.tution rested with the respective State legislatures, a position from the logical consequences of which he spent no little effort to disengage himself in the years of his retirement. Another recidivist was Charles Pinckney, who in 1799 denounced the idea of judicial review as follows: "On no subject am I more convinced, than that it is an unsafe and dangerous doctrine in a republic, ever to suppose that a judge ought to possess the right of questioning or deciding upon the const.i.tutionality of treaties, laws, or any act of the legislature. It is placing the opinion of an individual, or of two or three, above that of both branches of Congress, a doctrine which is not warranted by the Const.i.tution, and will not, I hope, long have many advocates in this country." Wharton, State Trials, 412. The great debate in Congress in the first session of the 7th Congress over the repeal of the Judiciary Act of 1801 speedily developed into a debate over whether judicial review of acts of Congress was contemplated by the Const.i.tution. In the Senate Breckenridge of Kentucky, author of the Kentucky Resolutions of 1799, contended for the equal right of the three departments to construe the Const.i.tution for themselves within their respective spheres, and from it deduced the exclusive right of the legislature to interpret the Const.i.tution in what regards the lawmaking power and the obligation of the judges to execute what laws they make.

But the feeble disguise which this doctrine affords legislative sovereignty made it little attractive even to Republicans, who for the most part either plainly indicated their adherence to the juristic view of the Const.i.tution, or following a hint by Giles of Virginia, kept silent on the subject. The Federalists on the other hand were unanimous on the main question, though of divergent opinions as to the grounds on which judicial review was to be legally based, some grounding it on the "arising" and "pursuant" clauses, some on the precedents of the Pension and Carriage cases, some on the nature of the Const.i.tution and of the judicial office, some on the contemporary use of terms and the undisputed practice under the Const.i.tution of all const.i.tutional authorities. Moreover, said The Federalist orators, judicial review was expedient, since the judiciary had control of neither the purse nor the sword; it was the subst.i.tute offered by political wisdom for the destructive right of revolution; to have established this principle of const.i.tutional security, a novelty in the history of nations, was the peculiar glory of the American people; the contrary doctrine was monstrous and unheard of. The year following Marshall concluded the debate, and rendered decision, in Marbury _v._ Madison. _See_ Edward S.

Corwin, The Doctrine of Judicial Review (Princeton University Press.

1914), 49-59; and Court Over Const.i.tution (1938), Chap. 1. "The glory and ornament of our system which distinguishes it from every other government on the face of the earth is that there is a great and mighty power hovering over the Const.i.tution of the land to which has been delegated the awful responsibility of restraining all the coordinate departments of government within the walls of the governmental fabric which our fathers built for our protection and immunity."--Chief Justice Edward Dougla.s.s White when Senator from Louisiana. Cong. Record, 52d Cong., 2d sess., p. 6516 (1894). "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void.

I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States." Oliver Wendell Holmes, Collected Legal Papers (New York, 1920), 295-296.

[259] The Federalist No. 78.

[260] 3 Dall. 386, 399 (1798).