The Theory of Social Revolutions - Brooks Adams
This brings me to the heart of my theorem. Ever since Hamilton's time,
it has been assumed as axiomatic, by conservative Americans, that courts
whose function is to expound a written constitution can and do act as a
"barrier to the encroachments and oppressions of the representative
body."[33] I apprehend that courts can perform no such office and that
in assuming attributes beyond the limitations of their being they, as
history has abundantly proved, not only fail in their object, but shake
the foundations of authority, and immolate themselves. Hitherto I have
confined myself to adducing historical evidence to prove that American
courts have, as a whole, been gifted with so little political sagacity
that their interference with legislation, on behalf of particular
suitors, has, in the end, been a danger rather than a protection to
those suitors, because of the animosity which it has engendered. I shall
now go further. For the sake of argument I am willing to admit that the
courts, in the exercise of the dispensing prerogative, called the
Police Power, have always acted wisely, so much so that every such
decree which they have issued may be triumphantly defended upon
economic, moral, or social grounds. Yet, assuming this to be true,
though I think I have shown it to be untrue, the assumption only
strengthens my contention, that our courts have ceased to be true
courts, and are converted into legislative chambers, thereby promising
shortly to become, if they are not already, a menace to order. I take it
to be clear that the function of a legislature is to embody the will of
the dominant social force, for the time being, in a political policy
explained by statutes, and when that policy has reached a certain stage
of development, to cause it to be digested, together with the judicial
decisions relevant to it, in a code. This process of correlation is the
highest triumph of the jurist, and it was by their easy supremacy in
this field of thought, that Roman lawyers chiefly showed their
preeminence as compared with modern lawyers. Still, while admitting this
superiority, it is probably true that the Romans owed much of their
success in codification to the greater permanence of the Roman
legislative tenure of office, and, therefore, stability of
policy,--phenomena which were both probably effects of a slower social
movement among the ancients. The Romans, therefore, had less need than
we of a permanent judiciary to counteract the disintegrating tendency of
redundant legislation; _a fortiori_, of course, they had still less to
isolate the judiciary from political onslaughts which might cause
justice to become a series of exceptions to general principles, rather
than a code of unvarying rules.
It is precisely because they are, and are intended to be, arenas of
political combat, that legislatures cannot be trustworthy courts, and it
was because this fact was notorious that the founders of this government
tried to separate the legislative from the judicial function, and to
make this separation the foundation of the new republic. They failed, as
I conceive, not because they made their legislatures courts, but
because, under the system they devised, their courts have become
legislatures. A disease, perhaps, the more insidious of the two.
Insidious because it undermines, order, while legislative murder and
confiscation induce reaction.
If a legislative chamber would act as a court, the first necessity is to
eliminate its legislative character. For example, the House of Lords in
England has long discharged the duties of a tribunal of last resort for
the empire, and with general approbation, but only because, when sitting
as a court, the law lords sit alone. Politicians and political
influences are excluded. Where political influences enter disaster
follows. Hence the infamous renown of political decisions in legal
controversies, such as bills of attainder and _ex post facto_ laws, or
special legislation to satisfy claims which could not be defended before
legitimate courts, or the scandals always attending the trial of
election petitions. The object of true courts is to shield the public
from these and kindred abuses.
In primitive communities courts are erected to defend the weak against
the strong, by correlating local customs in such wise that some general
principle can be deduced which shall protect the civil rights of those
who cannot protect themselves, against the arbitrary exactions of
powerful neighbors. In no community can every person have equal civil
rights. That is impossible. Civil rights must vary according to status.
But such rights as any person may have, those the courts are bound to
guard indifferently. If the courts do not perform this, their first and
most sacred duty, I apprehend that order cannot be permanently
maintained, for this is equality before the law; and equality before the
law is the cornerstone of order in every modern state.
I conceive that the lawyers of the age of Washington were the ablest
that America has ever produced. No men ever understood the principle of
equality before the law more thoroughly than they, and after the
establishment of this government a long series of great and upright
magistrates strove, as I have shown, to carry this principle into
effect. Jay and Marshall, Story and Bradley, and many, many more,
struggled, protested, and failed. Failed, as I believe, through no fault
of their own, but because fortune had placed them in a position
untenable for the judge. When plunged in the vortex of politics, courts
must waver as do legislatures, and nothing is to me more painful than to
watch the process of deterioration by which our judges lose the instinct
which should warn them to shun legislation as a breach of trust, and to
cleave to those general principles which permit of no exceptions. To
illustrate my meaning I shall refer to but one litigation, but that one
is so extraordinary that I must deal with it in detail.
In 1890 the dread of the enhancement of prices by monopoly, as the
Supreme Court itself has explained, caused Congress to pass the famous
Sherman Act, which prohibited indiscriminately all monopolies or
restraints of trade. Presently the government brought a bill to dissolve
an obnoxious railway pool, called the Trans-Missouri Freight
Association, and in 1896 the case came up for adjudication. I have
nothing to say touching the policy involved. I am only concerned with a
series of phenomena, developed through several years, as effects of
pressure acting upon a judiciary, exposed as the judiciary, under our
system, is exposed.
The Trans-Missouri Case was argued on December 8, 1896, very elaborately
and by the most eminent counsel. After long consideration, and profound
reflection, Mr. Justice Peckham, speaking for the majority of the
tribunal, laid down a general principle in conformity to the legislative
will, precisely as Marshall had laid down a general principle in the
Dartmouth College Case, or Story in the Charles River Bridge Case, or
Waite in Munn _v_. Illinois, or Bradley in the Minnesota Rate Case. Then
the process of agitation immediately began. In the words of Mr. Justice
Harlan, fifteen years later: "But those who were in combinations that
were illegal did not despair. They at once set up the baseless claim
that the decision of 1896 disturbed the 'business interests of the
country,' and let it be known that they would never be content until the
rule was established that would permit interstate commerce to be
subjected to _reasonable_ restraints."[34]
Other great causes, involving the same issue, were tried, the question
was repeatedly reargued, but the Supreme Court tenaciously adhered to
its general principle, that, under the Sherman Act, _all_ restraints of
trade, or monopolies, were unlawful, and, therefore, the Court had but
two matters before it, first to define a restraint of trade or a
monopoly, second to determine whether the particular combination
complained of fell within that definition. No discretion was permitted.
Judicial duty ended there.
The Court being found to be inflexible, recourse was had to Congress,
and a bill in the form of an amendment to the Sherman Act was brought
into the Senate authorizing, in substance, those who felt unsafe under
the law, to apply to certain government officials, to be permitted to
produce evidence of the reasonable methods they employed, and, if the
evidence were satisfactory, to receive, what was tantamount to, an
indulgence. The subject thus reopened, the Senate Committee on the
Judiciary went into the whole question of monopoly anew, and in 1909
Senator Nelson presented an exhaustive report against the proposed
relaxation. Thereupon the Senate indefinitely postponed further
consideration of the amendment. The chief reasons given by Senator
Nelson were summed up in a single sentence: "The defence of reasonable
restraint would be made in every case and there would be as many
different rules of reasonableness as cases, courts, and juries.... To
amend the anti-trust act, as suggested by this bill, would be to
entirely emasculate it, and for all practical purposes render it
nugatory as a remedial statute.... The act as it exists is clear,
comprehensive, certain and highly remedial. It practically covers the
field of federal jurisdiction, and is in every respect a model law. To
destroy or undermine it at the present juncture, ... would be a
calamity.
"In view of the foregoing, your committee recommend the indefinite
postponement of the bill."[35]
And so the Senate did indefinitely postpone the bill.
Matters stood thus when the government brought process to dissolve the
Standard Oil Company, as an unlawful combination. The cause was decided
on May 15, 1911, the Chief Justice speaking for the majority of the
bench, in one of the most suggestive opinions which I have ever read. To
me this opinion, like Taney's opinion in the Charles River Bridge Case,
indicates that the tension had reached the breaking point, the court
yielding in all directions at once, while the dominant preoccupation of
the presiding judge seemed to be to plant his tribunal in such a
position that it could so yield, without stultifying itself hopelessly
before the legal profession and the public. In striving to reach this
position, however, I apprehend that the Chief Justice, unreservedly,
crossed the chasm on whose brink American jurists had been shuddering
for ninety years. The task the Chief Justice assumed was difficult
almost beyond precedent. He proposed to surrender to the vested
interests the principle of _reasonableness_ which they demanded, and
which the tribunal he represented, together with Congress, had refused
to surrender for fifteen years. To pacify the public, which would
certainly resent this surrender, he was prepared to punish two hated
corporations, while he strove to preserve, so far as he could, the
respect of the legal profession and of the public, for the court over
which he presided, by maintaining a semblance of consistency.
To accomplish these contradictory results, the Chief Justice began,
rather after the manner of Marshall in Marbury _v_. Madison, by an
extra-judicial disquisition. The object of this disquisition was to
justify his admission of the evidence of reasonableness as a defence,
although it was not needful to decide that such evidence must be
admitted in order to dispose of that particular cause. For the Chief
Justice very readily agreed that the Standard Oil Company was, in fact,
an unreasonable restraint of trade, and must be dissolved, no matter
whether it were allowed to prove its reasonable methods or not.
Accordingly, he might have contented himself with stating that,
admitting for the sake of argument but without approving, all the
defendant advanced, he should sustain the government; but to have so
disposed of the case would not have suited his purpose. What the Chief
Justice had it at heart to do was to surrender a fundamental principle,
and yet to appear to make no surrender at all. Hence, he prepared his
preliminary and extra-judicial essay on the human reason, of whose
precise meaning, I must admit, I still, after many perusals, have grave
doubts. I sometimes suspect that the Chief Justice did not wish to be
too explicit. So far as I comprehend the Chief Justice, his chain of
reasoning amounted to something like this: It was true, he observed,
that for fifteen years the Supreme Court had rejected the evidence of
reasonableness which he admitted, and had insisted upon a general
principle which he might be supposed to renounce, but this apparent
discrepancy involved no contradiction. It was only a progression in
thought. For, he continued, the judges who, on various previous
occasions, sustained that general principle, must have reached their
conclusions by the light of reason; to-day we reach a contrary
conclusion, but we also do so by the light of reason; therefore, as all
these decisions are guided by the light of reason they fundamentally
coincide, however much superficially they may seem to differ.[36]
I have never supposed that this argument carried complete conviction
either to the legal profession, to the public, or to Congress.
Certainly, it did not convince Mr. Justice Harlan, who failed to fathom
it, and bluntly expressed his astonishment in a dissenting opinion in
another cause from which I regret to say I can only quote a couple of
paragraphs, although the whole deserves attentive perusal:--
"If I do not misapprehend the opinion just delivered, the Court insists
that what was said in the opinion in the Standard Oil Case, was in
accordance with our previous decisions in the Trans-Missouri and Joint
Traffic Cases, ... if we resort to _reason_. This statement surprises me
quite as much as would a statement that black was white or white was
black."
"But now the Court, in accordance with what it denominates the 'rule of
reason,' in effect inserts in the act the word 'undue,' which means the
same as 'unreasonable,' and thereby makes Congress say what it did not
say.... And what, since the passage of the act, it has explicitly
refused to say.... In short, the Court now, by judicial legislation, in
effect, amends an Act of Congress relating to a subject over which that
department of the Government has exclusive cognizance."[37]
The phenomenon which amazed Mr. Justice Harlan is, I conceive, perfectly
comprehensible, if we reflect a little on the conflict of forces
involved, and on the path of least resistance open to an American judge
seeking to find for this conflict, a resultant. The regulation or the
domination of monopoly was an issue going to the foundation of society,
and popular and financial energy had come into violent impact in regard
to the control of prices. Popular energy found vent through Congress,
while the financiers, as financiers always have and always will, took
shelter behind the courts. Congress, in 1890, passed a statute to
constrain monopolies, against which financiers protested as being a
species of confiscation, and which the Chief Justice himself thought
harsh. To this statute the Supreme Court gave a harsh construction, as
the Chief Justice had more than once pointed out, when he was still an
associate upon the bench. From a series of these decisions an appeal had
been made to Congress, and the Senate, in the report from which I have
quoted, had sustained the construction given to the statute by the
majority of his brethren with whom the Chief Justice differed. Since the
last of these decisions, however, the complexion of the bench had been
considerably changed by new appointments, much as it had been after
Hepburn _v_. Griswold, and an opportunity seemed to be presented to
conciliate every one.
In any other country than the United States, a chief justice so situated
would doubtless have affirmed the old precedents, permitting himself, at
most, to point out the mischief which, he thought, they worked. Not so a
lawyer nurtured under the American constitutional system, which breeds
in the judge the conviction that he is superior to the legislator. His
instinct, under adequate pressure, is always to overrule anything
repugnant to him that a legitimate legislative assembly may have done.
In this instance, had the case been one of first impression, nothing
would have been easier than to have nullified the Sherman Act as an
unreasonable exercise of the Police Power, as judges had been nullifying
statutes of which they disapproved for a couple of generations
previously; but the case was not one of first impression. On the
contrary, the constitutionality of the Sherman Act had been so often
upheld by the judiciary that the Chief Justice himself admitted that so
long as Congress allowed him to use his reason, these "contentions
[were] plainly foreclosed." Therefore, for him the path of least
resistance was to use his _reason_, and, as a magistrate, to amend a
statute which Congress ought to have amended, but had _unreasonably_
omitted to amend. Such was the final and logical result of the blending
of judicial and legislative functions in a court, as they are blended
under the American constitutional system. Nor is it unworthy of
remark, that the Chief Justice, in abstaining from questioning the
constitutionality of the act, expressly intimated that he did so
because, by the use of his reason, he could make that reasonable and
constitutional which otherwise might be unreasonable and
unconstitutional. The defendants pressed the argument that destroying
the freedom of contract, as the Sherman Law destroyed it, was to
infringe upon the "constitutional guaranty of due process of law." To
this the Chief Justice rejoined: "But the ultimate foundation of all
these arguments is the assumption that reason may not be resorted to in
interpreting and applying the statute.... As the premise is demonstrated
to be unsound by the construction we have given the statute," these
arguments need no further notice.[38]
Should Congress amend the Sherman Act, as it seems somewhat disposed to
do, by explicitly enacting the rule of the Trans-Missouri Case, a grave
issue would be presented. The Chief Justice might submit, and thus
avert, temporarily at least, a clash; or, he might hold such an
amendment unconstitutional as denying to the Court the right to
administer the law according to due process. A trial of strength would
then be imminent.
Nearly a century ago, Jefferson wrote to Spencer Roane, "The
Constitution, on this hypothesis, is a mere thing of wax in the hands of
the judiciary, which they may twist and shape into any form they
please."[39] And however much we may recoil from admitting Jefferson's
conclusion to be true, it none the less remains the fact that it has
proved itself to be true, and that the people have recognized it to be
true, and have taken measures to protect themselves by bringing the
judiciary under the same degree of control which they enforce on other
legislators. The progression has been steady and uniform, each advance
toward an assumption of the legislative function by the judiciary having
been counterbalanced by a corresponding extension of authority over the
courts by the people. First came the protest against Marbury and Madison
in the impeachment of Chase, because, as Giles explained, if judges were
to annul laws, the dominant party must have on the bench judges they
could trust. Next the Supreme Court of New York imagined the theory of
the Police Power, which was adopted by the Supreme Court of the United
States in 1837. But it stood to reason that if judges were to suspend
constitutional limitations according to their notions of reasonableness,
the people must have the means of securing judges whose views touching
reasonableness coincided with their own. And behold, within ten years,
by the constitution of 1846, New York adopted an elective judiciary.
Then followed the Dred Scott Case, the Civil War, and the attack on
legislative authority in Hepburn _v_. Griswold. Straightway the Court
received an admonition which it remembered for a generation. Somewhat
forgetful of this, on May 15, 1911, Chief Justice White gave his opinion
in the Standard Oil Case, which followed hard upon a number of state
decisions intended to override legislation upon several burning social
issues. Forthwith, in 1912, the proposition to submit all decisions
involving a question of constitutional law to a popular vote became an
issue in a presidential election. Only one step farther could be taken,
and that we see being taken all about us. Experience has shown, in New
York and elsewhere, that an election, even for a somewhat short term,
does not bring the judge so immediately under popular control that
decisions objectionable to the majority may not be made. Hence the
recall. The degradation of the judicial function can, in theory at
least, go no farther. Thus the state courts may be said already to be
prostrate, or likely shortly to become prostrate. The United States
courts alone remain, and, should there be a struggle between them and
Congress, the result can hardly be doubted. An event has recently
occurred abroad which we may do well to ponder.
Among European nations England has long represented intelligent
conservatism, and at the heart of her conservatism lay the House of
Lords. Through many centuries; and under many vicissitudes this ancient
chamber had performed functions of the highest moment, until of late it
had come to occupy a position not dissimilar to that which the Supreme
Court of the United States yet holds. On one side it was the highest
legal tribunal of the Empire, on the other it was a non-representative
assembly, seldom indeed originating important legislation, but enjoying
an absolute veto on legislation sent it from the Commons. One day in a
moment of heated controversy the Lords vetoed a bill on which the
Commons had determined. A dissolution followed and the House of Lords,
as a political power, faded into a shadow; yet, notwithstanding this,
its preeminence as a court has remained intact. Were a similar clash to
occur in America no such result could be anticipated. Supposing a
President, supported by a congressional majority, were to formulate some
policy no more subversive than that which has been formulated by the
present British Cabinet, and this policy were to be resisted, as it
surely would be, by potent financial interests, the conflicting forces
would converge upon the Supreme Court. The courts are always believed to
tend toward conservatism, therefore they are generally supported by the
conservative interest, both here and elsewhere. In this case a dilemma
would be presented. Either the judges would seek to give expression to
"preponderant" popular opinion, or they would legislate. In the one
event they would be worthless as a restraining influence. In the other,
I apprehend, a blow would fall similar to the blow which fell upon the
House of Lords, only it would cut deeper. Shearing the House of Lords of
political power did not dislocate the administration of English justice,
because the law lords are exclusively judges. They never legislate.
Therefore no one denounced them. Not even the wildest radical demanded
that their tenure should be made elective, much less that they should be
subjected to the recall. With us an entirely different problem would be
presented for solution. A tribunal, nominally judicial, would throw
itself across the path of the national movement. It would undertake to
correct a disturbance of the social equilibrium. But what a shifting of
the social equilibrium means, and what follows upon tampering with it,
is a subject which demands a chapter by itself.
FOOTNOTES:
[18] 6 Cranch 135.
[19] New Jersey _v_. Wilson, 7 Cranch 164; decided in 1812.
[20] Coates _v_. Mayor of New York, 7 Cowen 585.
[21] Charles River Bridge _v_. Warren Bridge, 11 Peters 420, 553.
[22] Boston & Maine Railroad _v_. County Commissioners, 79 Maine 393.
[23] Wynehamer _v_. The People, 13 N.Y. 393.
[24] Mugler _v._ Kansas, 133 U.S. 623.
[25] Fertilizing Co. _v_. Hyde Park, 97 U.S. 659.
[26] Slaughter House Cases, 16 Wallace 78, decided in 1873.
[27] 94 U.S. 113.
[28] Chicago, Milwaukee & St. Paul Ry. _v._ Minnesota, 134 U.S. 461,
decided March 24, 1890.
[29] Noble State Bank _v._ Haskell, 219 U.S. 104.
[30] See the extraordinary case of Douglas _v._ Kentucky, 168 U.S. 488,
which must be read in connection with Gregory _v._ Trustees of Shelby
College, 2 Metc. (Kentucky) 589.
[31] Brass _v._ North Dakota, 133 U.S. 391.
[32] 169 U.S. 466.
[33] _The Federalist_, No. LXXVIII.
[34] 221 U.S. 91.
[35] 60th Congress, 2d Session, Senate, Report No. 848, Adverse Report
by Mr. Nelson, Amending Anti-trust Act, January 26, 1909, page 11.
[36] Standard Oil Company _v_. United States, 221 U.S. 1.
[37] United States _v_. American Tobacco Company, 221 U.S. 191, 192.
[38] 221 U.S. 69.
[39] To Spencer Roane, Sept. 6, 1819, Ford, 10, 141.