The Theory of Social Revolutions - Brooks Adams
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 preexisting
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.
FOOTNOTES:
[6] The relation of courts to legislation in European countries has been
pretty fully considered by Brinton Coxe, in _Judicial Power and
Constitutional Legislation_.
[7] _Federalist_ No. LXXVIII.
[8] _The Federalist_, No. LXXVIII.
[9] _The Federalist_, No. LXXVIII.
[10] Cohens _v_. Virginia, 6 Wheaton 415.
[11] To Madison, Ford, 9, 275.
[12] Marshall's constitutional doctrine was not universally accepted,
even in the courts of the northern states, until long afterward. As
eminent a jurist as Chief Justice Gibson of Pennsylvania, as late as
1825, gave a very able dissenting opinion in opposition in Eakin _v_.
Raub, 12 S.&R., 344.
[13] Memoirs, I, 322.
[14] Hepburn _v._ Griswold, 8 Wallace 603. Decided in conference on Nov.
27, 1869, more than a month before Grier's resignation. Knox _v_. Lee,
12 Wallace 457.
[15] 157 U.S. 608.
[16] Pollock _v_. The Farmers' Loan & Trust Co., 158 U.S. 715.
[17] In 1889 Mr. J.C. Bancroft Davis compiled a table of the acts of
Congress which up to that time had been held to be unconstitutional. It
is to be found in the Appendix to volume 131 U.S. Reports, page CCXXXV.
Mr. Davis has, however, omitted from his list the Dred Scott Case,
probably for the technical reason that, in 1857, when the cause was
decided, the Missouri Compromise had been repealed. Nevertheless, though
this is true, Tansy's decision hinged upon the invalidity of the law.
Besides the statutes which I have mentioned in the test, the two most
important, I suppose, which have been annulled, have to me no little
interest. These are the Civil Rights Act of 1875, and the Employers'
Liability Act of 1906. The Civil Rights Act of 1875 grew rapidly
unpopular, and the decision which overturned it coincided with the
strong drift of opinion. The Civil Rights Cases were decided in October,
1883, and Mr. Cleveland was elected President in 1884. Doubtless the law
would have been repealed had the judiciary supported it. Therefore this
adjudication stood.
On the other hand, the Employers' Liability Act of 1906 was held bad
because Congress undertook to deal with commerce conducted wholly within
the states, and therefore beyond the national jurisdiction. The Court,
consequently, in the Employers' Liability Cases, simply defined the
limits of sovereignty, as a Canadian Court might do; it did not question
the existence of sovereignty itself. In 1908 Congress passed a statute
free from this objection, and the Court, in the Second Employers'
Liability Cases, 223 U.S. 1, sustained the legislation in the most
thoroughgoing manner. I know not where to look for two better
illustrations of my theory.
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.