Prohibitory and Kindred Laws Examined







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Set up and printed. Published September, 1928.


"The aim, therefore, of Patriots was to set limits on the Power which the Ruler should be suffered to exercise over the Community: and this Limitation was what they meant by Liberty." — JOHN STUART MILL.

"To what purpose are powers limited, and to what purpose is that limitation committed to writing [in the Constitution], if these limits may, at any time, be passed by those intended to be restrained?" — CHIEF JUSTICE MARSHALL.


IN this book the discussion has to do solely with the Power of Government in the United States under the Constitution and the Liberty of the Man under the same instrument.

Sociology, political morals, policy, and "that convenient refuge of loose thinking which is vaguely called 'the spirit' of the Constitution," are excluded from consideration. They have already received too much attention from legislators and judges, to the beclouding of constitutional doctrine.

So, also, in dealing with prohibitory laws and decisions no element of "wet" or "dry" is permitted to enter. With wet or dry Government has no proper concern whatever. It did have a duty to protect the weak or irresolute man and his family and society from the manifest perils of the public saloon. Its constitutional obligation was even more imperative to let the self-reliant and capable man alone.

So, finally, in the criticism of other laws for their disregard of Liberty and Property, and in the examination of the decisions which sustained them, the measure of validity employed is, not social science, but constitutional principle.

The question respecting prohibitory laws is whether, in the performing of a duty to the class who need the protection of Government, the Liberty of those who do not need that aid, and whose conduct never contributed to the conditions which prohibition was instituted to cure, can be frittered away by judicial decisions or openly destroyed by legislative action.

A second question, really the more important of the two, is this: To what lengths of interference with Liberty and Property will Government go in following the precedents already set? For, as Tacitus saw it nearly nineteen centuries ago, and as it has remained and will remain, "That which is now supported by examples, growing old, will become an example itself."

These two subjects, neither of which has hitherto received adequate consideration apart from theories of fatherhood and motherhood in Government, will be treated, not as abstractions, but as questions plainly answerable from living law.

It will be seen that judicial decisions are too often concerned with moral philosophy to the relative disregard of those constitutional principles which were intended to control mischievous Power. The Constitution of the United States is a harness on Power; and, when it comes to a discussion of its proper application, its holding purposes, and not Government as a giver of gifts, should receive prime consideration. At the time the Constitution was written mischievous and destructive Power never had been controlled. The question then was, and yet remains: Can Power be controlled? The framers of the Constitution believed that in establishing an independent Judicial Department to pass upon the constitutionality of the acts of Power they had solved the problem.

But solution in that way must always depend upon the independence, quality, and courage of the judges. And those things depend upon the unremitting support of an educated press and people. The following discussion will show how the plan has been working out, and that eternal vigilance never was more clearly the price of Liberty than it is to-day.

References to the Declaration of Independence and to the Constitution of the United States are so frequent that those documents are inserted at the end of the book for the convenience of the reader, to whose careful and constant study they are earnestly commended.

A Table of Contents at the beginning of the book and a carefully prepared alphabetical Index at the end make readily findable anything that the volume contains.

Chicago, July, 1928.





I. American Achievements Non-Governmental .. 1

II. The World of 1776......... 6

III. Colonists Victims of Government..... 10

IV. Struggle Between Liberty and Authority .. 13

V. Miserable Condition of Mankind..... 19

VI. Liberty: What Does It Mean?..... 23

VII. Americans Invented Judicial Safeguard ... 32

VIII. Independent Judges Necessary ..... 40

IX. Can Government Be Limited? 45



I. Tributes to American Judicial System ... 51

II. Regulating Prescriptions of Physicians ... 62

III, Eighteenth Amendment Superfluous .... 75

IV. Doubt Should Favor Tenth Amendment ... 82

V. Mugler v. Kansas Critically Reviewed ... 90

VI. "The Rule of Reason" in Kansas..... 105

VII. Obiter Dictum Followed....... 115

VIII. "Policy" Never Unconstitutional..... 127

IX. Eighteenth Amendment Unconstitutionally Proposed ............ 144



I. Mugler Case as Precedent ... 154

II. Legislators Using Other People's Money ... 164

III. Public Taking Private Property..... 170

IV. Congressional Invasion of Judicial Department . 176

V. Supreme Court Yields to Encroachment by Congress ............. 183

VI. Legislative Department Scores Again .... 204








American Achievements Non-Governmental

ALL that the American has achieved has been owing largely to the fact that Government has let him alone. He has carried on his back no royal family, no worse than idle soldiers, no crushing armaments. Almost as free from the touch of Government as the Indian was before the Discovery, he has gone his way in the fields of invention, exploration, development, science, and general education, all for the comfort and behoof, not of the State, but of the man, the woman, and the child. The State reared by such a man must necessarily be great.

It is not a mere happening that the American has the highest wages in the world and is now the world's banker; that he eats more meat and white bread and sugar and other good things than any other man; that he and his family wear more good clothing, drive more automobiles, use more telephones, consume more electricity, and have more conveniences of other kinds, many times over, than does the Briton, the German, the Frenchman, or the man of any other country.

And all these things which make the difference between the present age and the miseries of the masses of people in all past times have been in origin and development, it should be emphasized, non-governmental.

The railway, the telegraph, the telephone, the electrical machinery in countless forms, all the labor-saving devices, the results of researches in health, the increase and preservation of foodstuffs, all these and more are owing to the initiative, courage, brains and money of the individual. None of these marks of progress and comfort is governmental.[1]

Should it be said that this is a land of incomparable richness, and that the advancement described could not have been avoided, the answer is a negative. For proof: the London "Spectator" showed three years ago that while the British Empire is four times the extent of the United States, and the self-governing dominions twice the extent, "an inferiority of resources" in the United States "had been so treated as to produce an amazing superiority over the British Empire." Each American with his machinery has a productive power of about three men. And at the window of the bank, on the platform of the bricklayer, and in other places where no machinery is employed the well-fed American has demonstrated his superiority to other workers. The "Spectator" found in this country "a higher average level of prosperity than exists anywhere else in the world." It found what the Preamble to the Constitution promised, "domestic Tranquillity, ... the General Welfare and ... the Blessings of Liberty."


[1] One of the financial difficulties of Canada in working toward normality after the World War has been the burden of a debt of over two billion dollars incurred by the national railway system of 22,000 miles, an application of socialistic ideas borrowed by advanced thinkers of the West from the open-air philosophers of Trafalgar Square. The Canadian taxpayer had load enough without carrying that, a burden of about $222 per capita.

In the United States, where self-named progressives had the idea that it is the province of Government to "give everybody everything," governmental interference in non-governmental matters was made unpopular by Federal control of railways in war time for two years and two months at a cost to the taxpayer of $1,700,000,000, in addition to the highest freight rates and passenger fares that he had ever paid and for the poorest service. An attempt to continue the "nationalization" of the railways after the War met with a practically unanimous protest from the shipping and traveling public.

Since then hundreds of municipalities throughout the United States which had been enchanted by the theory of socialism, although it never had been demonstrated in the country of its origin to be of any value, have been hastening to turn over to private owners their gas plants, electric lighting plants, and street railway systems.

The idea of 1787, permeating the Constitution, is that the Man will more effectually work out success and happiness when Government keeps its hands off.


It found the logical result of the liberation of a people from Government.

Another Briton discovered that the form of Government contributes, as all know (or should know) it does, to material, social, and intellectual prosperity. In "The House of Commons and Monarchy" this language is employed by Belloc:

Men eager for freedom and dignity of living in the individual rightly demand the separation of the various powers in Sovereignty. They insist on an independent Judiciary; on a Legislature uncontrolled by the Executive. But men who are concerned rather with the strength of the State, and especially with its action abroad, ... rejoice to recognize a high and successful centralization of Sovereignty, however masked, or under whatever name. Nowhere had that centralization proceeded to such lengths as it did in the England of the nineteenth century.

It is simply a question whether the Government shall keep hands off while the Man attains freedom and dignity of living, or whether he shall be the victim of it while it goes strutting through the world. As Belloc clearly perceives, it is the centralized government under which it cannot be hoped to achieve "freedom and dignity of living in the individual."

And yet, owing to constitutional illiteracy[1] in the United States and a lack of historical information, for some years centralization has been the hobby of what seem to be the most influential forces in this country. This recalls the comment of the historian Macaulay to an American seventy years ago, that the Huns and Vandals whom the United States has to fear "will have been engendered within your own country by your own institutions."

"I believe the States can best govern over home concerns," wrote Jefferson, "and the General Government over foreign ones. I wish, therefore, to see maintained that wholesome distribution of powers established by the Constitution for the limitation of both, and never see all offices transferred to Washington." [2]

However, the States have been not only willing to give up many "home concerns," but eager also. Their delegations in Congress have passed bills to centralize in Washington the management of many matters of local concern, such as the child-labor laws, the Maternity Act, an act for regulating boards of trade in the States, and others. As all the States have child-labor laws, why should the Congressmen of those States want to cripple their own commonwealths? Why cannot each State regulate its boards of trade better than a bureau in Washington can do it? If mothers among the poor need more care from nurses and physicians, the police power of the State can attend to that more quickly and efficiently through its standing organization than the Nation can do with a bureau far from the place of need. Workers for social betterment seem to have forsaken State capitals for Washington, and the Congressman seems ready to do whatever the organized controllers of votes desire.


[1] A survey made in 1922 by a member of the American Bar Association showed that the teaching of constitutional philosophy as an independent subject receives practically no attention in the public schools of the States. This was based on reports of school officers.

A report of the Committee on American Citizenship of the American Bar Association in 1926 disclosed that even in the law schools of most of the universities the Constitution is, generally, inadequately taught, not being even required in some of them.

At a meeting of the Association of American Law Schools in Chicago in December, 1927, the program, covering three days, with night sessions, and carrying 3 addresses, 3 papers, 8 round-table conferences, 8 reports of committees, and 21 topics for discussion, contained nothing whatever relating to the constitutional government of the United States.

[2] See Norton's "The Constitution of the United States: Its Sources and Its Application," page 226.


Thinking along this line has changed since James Wilson told the Pennsylvanians that in voting on propositions in the Constitutional Convention he used his own head, not caring whom it might please or displease. Similarly, Edmund Burke, a friend in Parliament of the American colonies, said to his constituents that his mature judgment and enlightened conscience he did not get from them — they were a trust from Providence which he would not sacrifice to their opinions. But the day of Burke and Wilson is a long way gone.

"He denounced with a fierce scorn that they richly merit," wrote Theodore Roosevelt of Gouverneur Morris, "the despicable demagogues and witless fools who teach that in all cases the voice of the majority must be implicitly obeyed, and that public men have only to carry out its will."

It is a rule of construction in the study of a law that the evil which it was designed to cure should be examined into and understood as a prerequisite to a complete apprehension of the meaning of its provisions. To understand the Constitution of the United States it is necessary that one know the world which produced it. That world has given place to a new one, but it is the old that contains the lesson. It should therefore be valuable to take a look at the past and find the reasons why the Constitution of the United States contemplates that Government shall let the Man alone.


The World of 1776

In 1776, when the Declaration of Independence was written, the Man was the victim of Government in every nation of the world. He was regarded as being on earth for the uses and purposes of Government and governors. That idea persisted in many countries down to the World War, and in the enlightened and scholarly Germany it found expression in the word Kultur, meaning the Supreme State instead of the Supreme Man. The idea of the supremacy of the State controls in Italy, Russia, and Mexico to-day.

The Declaration of Independence told the world that "Governments are instituted among Men," not to use them, or to misuse them, or to rob them, or to destroy them, but to serve men — "to secure these rights" by which "they are endowed by their Creator," the "certain unalienable rights" with which men are incapable of parting if they were to try to do so, which they cannot alienate as against their posterity, rights which no government can touch, among which are "Life, Liberty and the pursuit of Happiness." The Declaration also proclaimed the philosophy which overspread the Western Hemisphere and which has been written into the constitutions of Europe which have been adopted since the close of the World War by peoples long crushed by autocracies, that all governments derive "their just powers from the consent of the governed." That is to say, Government is rightly the servant of Man, and not his master.

Four months before the Declaration of Independence the first volume of Gibbon's "Decline and Fall of the Roman Empire" was finished, the story of the end of a great system of government which "comprehended the fairest part of the earth, and the most civilized portion of mankind." The Empire contained an area over one-half as large as continental United States, "for the most part of fertile and well cultivated land." It had a population estimated by Gibbon (Vol. 1, p. 268) at 120,000,000, "the most numerous society that has ever been united under the same system of government."

But it went down. "The last three hundred years had been consumed in apparent prosperity and internal decline." While its system of law yet governs half the civilized population of the world, all else long since fell into "ruinous perfection." The modern world was to become interested through Gibbon in the foremost of the failures of Government just at the time the greatest constitutional Republic was taking rise. This is engaging as a dramatic incident. Must governments always fall?

In America, for the first time in all the long and miserable ages of the human race, the idea of Man's supremacy to his Government, stated in the Declaration of Independence, was cast in a fixed form, and this fixed form we call the Constitution of the United States.

The idea of the supremacy of the people to their Government had been entertained and expressed long before the Declaration of Independence, but it never was — never could be — put into practical operation until the Constitution of the United States gave effect to the Declaration. In the "Institutes" of the Roman Emperor Justinian (A.D. 534), prepared for the use of young students at his direction by a committee of learned lawyers, this appears:

Again, what the Emperor determines has the force of a statute, the people having conferred on him all their authority and power by the lex regia, which was passed concerning his office and authority.

In the Middle Ages the supremacy of the people was often stated, Marsilius of Padua (1270-1342), for example, saying that "law is the expression, not of the will of the Prince, ... but of the will of the people, who, by the voice of the majority, could enact, interpret, modify, suspend and abrogate it at will"; and, as Bryce points out in "The Holy Roman Empire," this doctrine "is to be found in other Mediæval publicists." Bryce thinks that he gets a glimpse of the doctrine in the "Politics" of Aristotle (B.C. 384-322), and he finds in it the germs of the English (1688), American (1776), and French (1789) revolutions, making it "one of the most curious links between the ancient and the modern world."

However, the English Revolution was not a complete success from our point of view: that is, the tyranny of the Executive Department only was put in bonds; whereas the experience of the American colonists with Parliament made them fear what Jefferson called "an elective despotism" even more than they did the King. So they defined and limited the powers which they conferred on the Legislative Department, as well as those which they gave to the Executive, when they wrote the Constitution. A century after the Declaration of Independence the Supreme Court of the United States, in a case involving the misappropriation of property by act of a legislature (Loan Assn. v. Topeka, 20 Wall., 655), said that if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness and the security of which is essential to that happiness, "under the unlimited dominion of others," it is a question "whether it is not wiser that this power should be exercised by one man than by many."

The French Revolution was a failure because, in part, the people were inexperienced in self-government. While the French had the idea of the supremacy of the people, they followed in their effort to make a constitution the theory of Rousseau (1762) in "The Social Contract," that each "puts his person and all his power in common under the supreme direction of the General Will, and, in our corporate capacity, we receive each member as an indivisible part of the whole." He traded his inherent rights for Government. Contrary to the American theory, that no majority can be large enough to take from a man his rights to Life, Liberty, and Property, the Frenchman was lost in the General Will, as every man in every land in every age had been lost to some sort of Sovereign Power.

"Whoever refuses to obey the General Will," wrote Rousseau, "shall be compelled to do so by the whole body: this means nothing less than that he will be forced to be free." The "whole body" then was probably a minority, as it certainly is in the United States to-day. Many, if not most, public officials do not receive a majority of the votes of those twenty-one years of age. The President himself has been a choice of the minority.

The Frenchman surrendered his personality and rights to "the whole body" and became as completely subject to that as he had been to the Bourbon King whom he had lately guillotined. By this theory, that the General Will is right, he defended some of the atrocities of the French Revolution.

The American, on the contrary, had a wholesome fear of the General Will, the "elective despotism" described by Jefferson; and so in his Constitution he sparingly conferred power on his three agencies of Government (Legislative, Executive, and Judicial), specifically withheld power in certain instances, set up courts to apply and enforce his Constitution as "the supreme Law of the Land," and then declared in Amendments IX and X that all other powers were retained by him or the States. He had had enough of the General Will. When the General Will undertook to force him to be free he wrote the Declaration of Independence.

This wide difference between American philosophy and French theory has not been noticed by many American writers. Indeed, some think that the Americans of the Revolution had learned of France.


Colonists Victims of Government

Returning to the victim of Government in Europe at the time of "the migration hither" of the colonists: fourteen years before the settlement of the first English colony at Jamestown, Virginia, and twenty-seven years before the Pilgrims landed at Plymouth Rock, the Parliament of England undertook to force men to be free in the field of religious thought. Parliament assumed, as other elective despotisms have since done and as some are now doing, that its judgment was necessarily correct and therefore not to be resisted or even questioned. In 1593, the thirty-fifth year of Queen Elizabeth, it passed the first of several Conventicle Acts, forbidding any person over sixteen years of age to attend any conventicle or meeting for worship not in conformity with the Church of England at which five persons besides the household were present. Conventicle was a word of reproach applied to the meetings of the English and Scottish nonconformists. The first act was directed toward the Separatists, known from their leader as the Brownists, many of whom took asylum in Holland. Punishment was fixed at imprisonment until the accused should conform. Many non-conformists fled to Holland from year to year. Among those was a congregation at Scrooby, in Nottinghamshire, led (1608) by William Brewster and John Robinson, which body, 102 in number, became the Pilgrims of 1620 who came to America in the Mayflower. By the end of the 1600s the established church of England had thrown off two bodies, the Non-conformists or Puritans and the Separatists or Pilgrims. The Puritans established Massachusetts Bay Colony at Salem in 1626. These two colonies formed a confederation in 1663, and, forgetful of their own quest for Liberty, drove out Roger Williams in the same year because he was a non-conformist as to their doctrines.

Thus the greatest of New England settlements is traceable directly to the innate inability of Government to let the Man alone. It was this settlement which raised up later Samuel Adams, John Hancock, John Adams, Robert Paine and Elbridge Gerry of the Declaration of Independence, and Nathaniel Gorham and Rufus King, signers of the Constitution. So tyranny works to its own confusion in the end.

South Carolina was founded by French Huguenot refugees in 1562; New York by the Dutch in 1626; Maryland by Catholic refugees from England in 1632; Rhode Island by the fugitive Roger Williams in 1636; Connecticut in the same year by the Rev. Thomas Hooker and one hundred followers driven out of Massachusetts; New Hampshire in 1638 by disfranchised religionists from Boston; Delaware in the same year by Swedes deposed from their rights and possessions in New York; Pennsylvania in 1681 by English Quakers in search of freedom; Georgia in 1732 by unfortunate victims of English prison brutalities, and German Lutherans. In 1755 the Acadians were ruthlessly scattered as told in Longfellow's "Evangeline." Under royal governors the established church of England was set up in several of the colonies and non-conformists were taxed for its support. Nearly every religious denomination suffered or caused suffering.

Thus there came to America one of the worst evils that Europe had produced. But it was battled by great souls like Jefferson and Madison in Virginia, by William Penn in Pennsylvania, by Baltimore in Maryland, and by the Otises, the Lees, the Perkinses, the Everetts and the Lorings in Massachusetts. One of the first acts of Virginia when it became a State exempted dissenters from tribute to the established church, and a later, long and bitterly contested, was its celebrated statute of religious freedom, which had been sought by the Baptists, Lutherans and Presbyterians. There had been laws which made it criminal to maintain certain opinions or to exercise certain forms of religion. When New York became a State its first legislature repealed many of the laws of intolerance which had plagued different religionists.

It is unnecessary to go beyond these illustrations, which might be multiplied, of the tendency in those times of Government to interfere not only with the personal, but also with the mental and spiritual, relations of the Man. Government drove him from his native lands and pursued him in the New World. It was out of this religious warfare that personal and political liberty was, in part, to come. "It is accordingly in this field," says John Stuart Mill, "almost solely, that the rights of the individual against society have been asserted on broad grounds of principle, and the claim of society to exercise authority over dissentients openly controverted."

In Lord Acton's "Lectures on Modern History," the like view is expressed (p. 206):

The Liberal ideas bred in sectarian circles, here and in America, did not become the common property of mankind until they were detached from their theological root, and became the creed of a party. This is the transition which occupies the reign of Charles II. It is the era in which parties took the place of churches as a political force.

A biographer of Bossuet, the great Frenchman, writing of his history of this religious struggle prevailing throughout Europe, says that he was the only one then "to view the conflict in its deepest aspects as a struggle between Liberty and Authority."


Struggle between Liberty and Authority

While it is necessarily true, as Lord Acton says, that there was much of religion involved in the strife in England from James I (1603) down to the time of Charles II (1685) and after, because the Church had been established by Government, and in some aspects they were hardly distinguishable, the statement cannot be accepted without qualification. It is not to be overlooked that between the dates given we find the Petition of Right (1628) assented to by Charles I, the Agreement of the People (1649), the Instrument of Government (1653), and the Habeas Corpus Act (1679), all dealing with personal and civil Liberty.

It was from the Petition of Right that the framers of our Constitution took "the law of the land," and "due process of law," and the idea of the Habeas-Corpus Clause, of the Standing-Army Clause, of the Quartering-of-Soldiers Clause, and of the Taxing Clause, all relating, not to religion, but to the "Life, Liberty and the Pursuit of Happiness" written into our Declaration of Independence.

Nothing came of the Agreement of the People of Cromwell's time, the capture and execution of Charles I diverting attention from it; but it provided that "the Representative of the whole nation shall consist of 400 persons" to be elected by the people, that the Council of State "shall dissolve of course," and not be a Long Parliament at its pleasure; that no member of the Representative should hold other office, and that "no Representative may ... take away any of the foundations of right, Liberty and safety contained in this Agreement, nor level men's estates, destroy property, or make all things common." Here was an attempt at a "supreme Law of the Land" which should resist and break all encroachments on Liberty. Therefore the Agreement had to do largely with Liberty, Property, and Government.

Neither did the Cromwellian Instrument of Government become operative, but it is interesting as an attempt to put in writing a constitutional form, and some British historians have thought it to be the prototype of the Constitution of the United States. But to see that requires some help from the imagination. It put "the supreme legislative authority" in an elective Lord Protector and an elective Parliament without a House of Lords, and it set down six matters with which Parliament could not meddle, the second English attempt at limitation of Legislative power, both of which failed. It provided "that all laws" and ordinances "contrary of the aforesaid Liberty shall be esteemed as null and void," like the legislative acts in the United States which conflict with constitutional Liberty, and that bills not signed by the Lord Protector within twenty days "nor given satisfaction" therefor to Parliament "shall pass into and become laws."

Another thing not to be overlooked in the study of the time of the four Stuart Kings and William III, during which (1603-1702) all the English colonies in America except Georgia (1732) were founded, is that the Stuarts brought into discussion the theory of the divine right of kings, which the English poet Pope expressed as "the right divine of kings to govern wrong." In this claim they were supported by both doctors of the law and doctors of divinity. The House of Tudor (Henry VIII) had insisted on passive obedience, and the coronation oath of Edward VI was recast (1547) to make the king's hereditary right wholly independent of election or the will of the people. But although the Tudors were more autocratic in some ways than the Stuarts, they were somewhat careful to respect public opinion; and accordingly they applied the doctrine without talking too much about it. But James I, the first of the Stuarts, constantly stressed this great principle of passive obedience, derived, as a corollary, from the Fifth Commandment. He and his supporters employed many Scriptural quotations. "Submit yourselves to every ordinance of man," it is written in I Peter, chapter 3, verse 13, "whether it be to the King as supreme or unto governors." Milton, Sydney and others opposed the doctrine, the author of "Paradise Lost" writing "A Defense of the People of England" in answer to a defense of the King by Salmasius.

That passive obedience to the Sovereign had been taught by philosophers and theologians as well as by Stuart and Bourbon royalty, by Lord Bacon, Hobbes, Pascal, Descartes, Spinoza, Luther, Calvin, and many others, shows how wide was the departure of the authors of the Declaration of Independence from the prevailing thought of Europe when America was settled.

Necessarily those long and often savage controversies over the power of the King had an effect on those who were laying the foundations of the New World. They saw Charles I beheaded. They saw an interregnum of eleven years and a Lord Protector in place of the King for six years, with unsuccessful attempts to set up a government by representatives of the people under a written constitution restraining the legislative power. They saw monarchy come back in the person of Charles II, the exiled son of the beheaded king. They saw James II, the brother of Charles, driven from the throne and in his stead William and Mary (James's daughter) seated. Those happenings indicated that sovereigns were not supreme and that the people might become so. The new sovereigns were obliged to submit to the numerous and positive limitations on royal powers set down in the Bill of Rights (1689), which took the form and title of "An Act for Declaring the Rights and Liberties of the Subject." Parliament being the dictator, all the restraints which it prescribed were on the Executive power. Naturally it placed none upon itself.

As the title of the Bill of Rights tells, it dealt not chiefly with religion, but with civil and political Liberty. By accepting this the sovereigns agreed not to suspend laws, not to dispense with laws, not to levy money "by pretense of prerogative" but to ask it of Parliament, not to keep a standing army without the consent of Parliament, not to interfere with the free election of members of Parliament, not limit speech or question debates in Parliament, not to favor excessive bail, excessive fines, nor cruel and unusual punishments, not to oppose frequent sessions of Parliament. Those and some others "they do claim, demand and insist upon all and singular the premises, as their undoubted rights and liberties." Observe, again, that in the foregoing it is Parliament that towers.

The idea that the Man has Liberties which are beyond the power of the sovereign (and that includes a majority) to touch was thus set out in the Bill of Rights:

That all and singular the rights and liberties asserted and claimed in the said Declaration [of Rights] are true, ancient, and indubitable rights and Liberties of the people of this kingdom.

Indubitable rights are incontestable rights, undeniable, beyond dispute — rights not in the field of Government.

Thus resulted "the glorious Revolution of 1688," by which Power passed from King to Parliament. Having set itself up in its own way, of course it has ever since been without any such limitations on its power as the writers of our Constitution placed on that of Congress. It was the King who had chiefly done oppression in England. Parliament, although at times tyrannical, had not so much alarmed the people. So it was throughout Europe; all-powerful kings had oppressed and pillaged the people and led them to their graves in endless and needless wars. There had been no representative legislative bodies deserving of the name; and when the fall of kings came the only thought of the makers of constitutions was to hold future executives in check.

But within less than sixty years of the Declaration of Rights the King of England was as autocratic and the Parliament as subservient to him as Henry VIII had been dominating and Parliament had been submissive. George III drove the American colonies to Revolution, "and," says the historian Green, "the shame of the darkest hour of English history lies wholly at his door." That rather overstates the fact. After enumerating the grievances against George III, the Declaration of Independence says:

Nor have We been wanting in attention to our British brethren. We have warned them from time to time of the attempts by their legislature to extend an unwarrantable jurisdiction over us.... They too have been deaf to the voice of justice and consanguinity.

It is true that the Parliament was the King's obedient servant. However, it is blamable for being so. George III distributed all patronage himself, directed the management of debates in Parliament, suggested motions to be made or opposed, and dictated how measures should be carried.

Having observed the violence of the Parliament which beheaded Charles I, and having experienced the oppressions of an all-powerful king with a Parliament at his beck to pass measures to his liking, the founders of this Republic were diligent to bind with limitations in the Constitution both the Executive Department and the Legislative. That was done for the first time in all the experiences of men with government.

"In questions of power, then," wrote Jefferson, "let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

There, in a single sentence, is the whole history of governmental failures and national wrecks. No way had been devised successfully to chain the man in power, who always became mischievous. While European peoples, unacquainted generally, as before mentioned, with legislative bodies as we know them and as the Parliament of England was known in the time of the Declaration of Independence, have not in their constitutions drawn so many restraints around legislatures [1] as appear in the Constitution of the United States and in the constitutions of the several states, it is significant that in newer lands, in the countries of the Western Hemisphere and in Australia, the policy of defining and limiting the range of both Legislative and Executive activity has been followed. Canada and Australia took the pattern of the United States not only in this respect, but also in establishing a Supreme Court to determine when the question is raised whether the Legislature went beyond the bounds of the Constitution; and Bryce wrote nearly forty years ago that opinion had changed in his country and that many "lament that England should have no Supreme Court." Had there been a Supreme Court in England in 1764 and after, and had it held unconstitutional (as they were) the Acts of Parliament taxing the colonists without representation, and quartering troops, and maintaining a standing army, and taking away trial by jury, then there might never have been a Declaration of Independence.

Unlimited power, whether in King, Parliament, or Congress, is not compatible with Liberty.

[1] Gouverneur Morris while our Minister to France "scorned the folly of the enthusiasts and doctrinaires ... who had put the Executive in the power of the Legislature, and this latter at the mercy of the leaders who could most strongly influence and inflame the mob."
Theodore Roosevelt.


Miserable Condition of Mankind

Turning from the ideas of Europe on religion, government and Liberty during the time the American colonies were being established, a look at the condition of the people themselves should be instructive as to what horrors Government not limited can produce and what the framers of the Constitution of the United States intended to make forever impossible in the New World.

Immediately after our Revolutionary War came the French Revolution, in considerable part an effect of ours. In Carlyle's history of that bloody time he makes the French people say to the government and governors of France:

This is the feeding and leading we have had of you: Emptiness — of pocket, of stomach, of head, and of heart. Behold, there is nothing in us — nothing but what Nature gives her wild children of the desert: Ferocity and appetite.

After all the long centuries the centralized Government Supreme in France had arrived at that! And it perished in a scene beyond description by the historian except by the words Reign of Terror.

Michelet, who was born when the feudal baron was going out of France, wrote of him:

Everything is his: the oak forest, the bird in the air, the fish in the water, the beast in the thicket, the running stream, the bell whose sound reaches a great way off.

We who own and enjoy the land and the forest and the stream and the mine and all that they contain too little understand the great value of our inheritance. Our position and our possessions have come to us through our constitutional Government, which keeps power in place and leaves the people to win their way unridden and unenslaved. Therefore, the first and unceasing care of the American should be the study (which will mean the preservation) of this constitutional system.

When Thomas Jefferson was our minister to France, under the Articles of Confederation, the Constitution which preceded the present one, he wrote:

Of twenty million people supposed to be in France, I am of opinion that there are nineteen million more wretched, more accursed in every circumstance of human existence, than the most conspicuously wretched individual in the whole United States.

The man in England at that time was some better off than the Frenchman, but not much. Thackeray's "Four Georges" gives an intimate view of the miserable condition of the man in that country, victimized by his Government. Other historians tell of his life.

Of the whole European situation Thackeray wrote:

Every prince imitated the French king, and had his Versailles, his Wilhelmshohe, his Ludwigslust; his court and its splendors; his gardens laid out with statues; his fountains, and waterworks, and Tritons; his actors, and dancers, and singers, and fiddlers; his harem, with its inhabitants; his diamonds and duchies for these latter; his enormous festivities, his gaming-tables, tournaments, masquerades, and banquets lasting a week long, for which the people paid with their money, when the poor wretches had it, with their bodies and very blood when they had none, being sold in thousands by their lords and masters, who gayly dealt in soldiers, staked a regiment upon the red at the gaming-table, swapped a battalion against a dancing-girl's diamond necklace, and, as it were, pocketed their people.

A little while before the first English Colony was planted (1607) in this country at Jamestown, Virginia, the Earl of Leicester, who had received a vast area of land from the Queen, which the people should have had, entertained Elizabeth and thirty-one barons and a host of retainers at the Castle of Kenilworth for seventeen days at an expense in present-day money of $50,000 a day. The party ate ten oxen a day and drank sixteen hogshead of wine and forty hogshead of beer. When earls and the like held all the land and spent their time in warring, hunting, gaming and profligacy, one may readily visualize the dreadful plight of the common man and his wife and children. Nor has the old condition been much improved as to some of the people. In the year before the World War it was stated by Lloyd George, then Chancellor of the Exchequer, referring to a strike of the farm laborers in England, that the worker on the land received less pay than the pauper in the poorhouse. The government spent more on the pauper than the owner of the land paid his worker.

The oppressions which were done to the people by Government when the Preacher in the Book of Ecclesiastes (ch. 4, v. 1) wrote of them in the second century before the Christian era, when he found that "on the side of their oppressors there was Power," prevailed continuously and over an increasingly large number of people down to the Declaration of Independence. Even if the historical records of the gross mishandling of the human race by Government were not so complete as we have them, the general and unending unhappiness of the mass of mankind would be unmistakably inferred from the visions of great souls, from century to century, of a better State.

In Solomon's dream (1015-977 B.C.) he was given "a wise and an understanding heart" beyond all men before or since because his prayer (1 Kings, 3) was, not for riches or long life or power, but for "an understanding heart to judge thy people" that he might "discern between good and bad." That for this thought he was made the wisest of men it is inferable that mankind were very badly governed.

About half a century after Solomon, and a little to the West, "The Republic" of Plato was written (about 375 B.C.) to show a government which would lift mankind out of their deep wretchedness and make them happy. But Plato believed that Government should have for its purpose, not leaving man unhampered to make his way and develop himself, but the training him in wisdom. "Unless the philosophers become rulers," he wrote, "or rulers become true and thorough students of philosophy, there shall be no end to the troubles of states and of humanity." Of course, that Government never came. In his view "the troubles of states and humanity" were very great.

Shortly after the discovery of America a great Englishman, Sir Thomas More, wrote (1516) "Utopia" in description of an imaginary land lifted by an ideal constitution above the appalling miseries in which the Government of his England and the other governments then held the mass of men.

Not long after the founding of the first English Colony in America there was published (1625) in Holland the work of Grotius on the "Right of War and Peace." He pleaded for the abolition or mitigation of some of the barbarities which governments employed in war; and he concluded his study of the mistreatment of the human race in the bloody adventures of emperors, kings, barons and retainers with a prayer to rulers that they would always remember "that you are governors of Man, who is very dear to God."

A century and a half later (1762) Rousseau in France wrote "The Social Contract" to tell a people misgoverned to destitution and ferocity how they might save themselves.

Those and many other dreams of great thinkers who were touched by the general and deep misery of mankind which bad Government had brought were put forward from century to century. They accomplished little beyond provoking men to think. They are referred to here to illustrate that down to the time of our Government the man and his wife and their children never had a show. Long centuries of wretched living in a lovely world! What an awful waste of human life!

Then, after those countless failures, came the Constitution of the United States with the sublime purpose of Solomon stated in its Preamble: to "establish Justice" and to "promote the general Welfare," as well as to secure for all time "the Blessings of Liberty."


Liberty: What Does It Mean?

What was meant by Liberty in the Preamble?

What was meant by Liberty written eleven years before in the Declaration of Independence, which is so all-important that whenever "Government becomes destructive of" it "the People" have "the Right ... to alter or abolish" the Government which thus wrongs them?

From that pronouncement it must be understood that Liberty is important. Rather than that Liberty be destroyed, Government itself shall be swept away and the People shall "institute new Government, laying its foundation on such principles," the Declaration of Independence continues, "and organizing its power in such form as to them shall seem most likely to effect their Safety and Happiness."

Liberty, then, with Life and "the pursuit of Happiness," is, according to American doctrine, the greatest treasure in the world.

What is Liberty?

"The aim, therefore, of patriots," says John Stuart Mill, "was to set limits on the power which the ruler should be suffered to exercise over the community: and this limitation was what they meant by Liberty."

Liberty, therefore, is Limitation on Power. And so wherever a Limitation set by the people for the restraint of Government is removed, there Liberty is lost.

Liberty was restored (not granted) by the earliest (1101) document in the Constitution of the English people, the Charter of Liberties of Henry II, "a deliberate limitation," says Stubbs, of the power "which had been exercised by William the Conqueror and William Rufus."

Liberty was in Magna Charta over a century later (1215), when King John "granted to all the freemen of our Kingdom, for us and our heirs forever, all the underwritten Liberties, to be had and holden by them and their heirs, of us and our heirs forever." While through the centuries these liberties were often taken away by Government, that is, the limitations were broken down, it must be said for the Englishman that he never consented to such deprivation and that he never ceased to fight for "Liberty under law." It is in Magna Charta that first appears the expression, "by the law of the land," which contained the meaning in our constitutional phrase, "due process of law," both of which were written in the Petition of Right to Charles I in 1628. The latter clause is there traced back to an enactment in the twenty-fifth year of Edward III, that is, 1352.

Liberty was in the Habeas Corpus Act of 1679 "for the better securing of the Liberty of the subject" against the tyrant.

Liberty was set out in The Instrument of Government of 1653, for England, Scotland and Ireland, and "all laws, statutes and ordinances and any clauses in any law, statute or ordinance to the contrary of the aforesaid Liberty, shall be esteemed as null and void," a fine statement of our "supreme Law of the Land," which never came to pass in Britain.

Liberty was stated to be in the American Declaration of Rights of 1765, promulgated at New York, the essential to "the increase, prosperity, and happiness of the colonies"; and the Stamp Act and the Act of Parliament extending the jurisdiction of courts of admiralty so as in practice to destroy trial by jury were complained of as having "a manifest tendency to subvert the rights and Liberties of the colonists."

Liberty was again the word in the American Declaration of Rights of 1774, written at Philadelphia, where a General Congress of deputies of the colonies had assembled "in order to obtain such establishment as that their religion, laws, and Liberties may not be subverted." The first resolution was that they "are entitled to life, Liberty and property, and that they have never ceded to any sovereign power whatever a right to dispose of either without their consent."

The words in italics import the powerlessness of "any Government on earth," as Jefferson later wrote when advocating a Bill of Rights in the Constitution, to deprive the Man of Liberty — to overstep the limitations set by him for his protection.

In the Declaration of Independence the colonists went further than that: they declared Liberty to be "unalienable," that is, that they could not even "consent" to part with it and thereby lose it to their children and to posterity at large. The second resolution of the Declaration of Rights was that their ancestors had come to America possessed of "all the rights, Liberties and immunities of free and natural-born subjects within the realm of England." In the tenth and last resolve they said that "their indubitable rights and Liberties ... cannot be legally taken from them, altered or abridged by any power whatever without their own consent."

Once in the Declaration of Rights the course of Government is said to be "unconstitutional," showing a belief that rights are fixed and not to be blown away. Once the act of Government is declared to be "illegal," and two other acts are said to be "against law": early intimations of the belief in "a Government of laws and not of men," which was later (1780) to be written in the Constitution of the State of Massachusetts. One reference is made to "the English Constitution," and another to "a constitutional trial by jury," both of which had been disregarded by the Government. Those references showed a belief in settled law which could not be ignored by Government.

Liberty was in the Virginia Bill of Rights (June 12, 1776), written by George Mason, which proclaimed what appeared less than a month later in the Declaration of Independence:

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and Liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

What is this Liberty, the name of which is never lost to sight or ear across eight centuries and a quarter of the history of English-speaking men?

Has the word a meaning? Or has this persistent use of it been "sound and fury, signifying nothing"?

What did this word mean when written in the Fifth Amendment to the Constitution to protect the Man against the Government of the Nation, and in the Fourteenth to shield him against aggressions by the States? What substance was in the word in 1776 and 1787? With that known, the Constitution will be understood.

What this word had come to mean in England at the time of the Declaration of Independence may be taken from William Blackstone, who began in 1758 a course of lectures in the University of Oxford, in a chair just established, which lectures in book form are known as "Commentaries on the Laws of England," and which were taught in the College of William and Mary by Chancellor Wythe to James Madison, Thomas Jefferson, and some others who had to do with the founding of this Republic. Edmund Burke, one of the friends of the colonists in the House of Commons, stated that more books of law were going from Europe to the colonies than of any other kind. It is not unlikely, therefore, that Blacksone's remarkable formulation of English law, done in a literary style yet unexcelled for lucidity and charm, was known to many of the deep students and thorough scholars of that time besides those who came from the College of William and Mary. Moreover, an edition of Blackstone was brought out at Philadelphia five years before the Declaration of Independence.

Blackstone defines (Vol. 1, p. 125) natural liberty as follows:

This natural Liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the gifts of God to Man at his creation, when He endowed him with the faculty of free will.

Then, mentioning that when man enters into society he necessarily submits to regulation of his natural Liberty "as the price of so valuable a purchase," Blackstone gives (Book 1, p. 125) this definition of the Liberty which belongs to man as a member of society or the State:

Political, therefore, or civil Liberty, which is that of a member of society, is no other than natural Liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public.

Sharswood, a commentator on Blackstone, criticizes the use in the foregoing quotation of political Liberty and civil as synonymous. Political Liberty, he says, is "the security with which, from the constitution, form, and nature of established government, the subject enjoys civil Liberty." Sharswood adds this important observation:

It is certainly true that law in its turn may be a tyrant, whether enacted by the will of one man or of a majority of the people ... Whenever laws attempt more than is necessary to secure alike to every man, weak or strong, rich or poor, ignorant or instructed, the right, the moral power, of seeking his own happiness in his own way, they invade the natural Liberty of which they ought only to be the bulwark.

That idea, that the majority itself must be controlled, is at the base of the American system.

"A majority held in restraint by constitutional checks and limitations," said Lincoln in his first inaugural address, "and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people."

Referring to the observation of Locke, that where there is no law there is no freedom, Blackstone comments:

But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil Liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint.

A great authority of that time, who wrote (January, 1776) "Common Sense" in support of American independence and, as Washington said, "worked a powerful change in the minds of many men," and who served in the army of the Revolution, was Thomas Paine, an Englishman grown tired of the English government. In "The Rights of Man," of which a million and a half copies were sold in England alone, showing that that Government was far from satisfactory to home people, Paine wrote:

Natural rights are those which appertain to man in right of his existence. Of this kind are the intellectual rights, or rights of the mind, and also all of those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others.

Civil rights are those which appertain to man in right of his being a member of society. Every civil right has for its foundation some natural right pre-existing in the individual, but to the enjoyment of which his individual power is not, in all cases, sufficiently competent. Of this kind are those which relate to security and protection....

That power [Government] produced from the aggregate of natural rights, imperfect in power in the individual, cannot be applied to invade the natural rights which are retained in the individual, and in which the power to execute is as perfect as the right itself.

That is a great definition of Government: It is the aggregate of natural rights of the kind which the possessors are unable alone to secure and protect — it has nothing to do with those other natural rights of thinking and acting which do not require protection and respecting which the possessor is therefore competent in himself.

Another illustration of what was understood in Revolutionary times of the right to Liberty and the proper sphere of Government is obtained from the writings of John Dickinson, whose Quaker grandfather had been driven out of England to find refuge in Virginia. "A Farmer's Letters to the Inhabitants of the British Colonies" made him eminent in the field of discussion. He was classically educated at Philadelphia. A three-year course in law in the Temple, London, finished his training. He was a leader in the Stamp Act Congress (1765), was chairman of the Committee of Correspondence of Pennsylvania, Chairman of the Committee of Safety and Defense for his State, was chosen colonel of the first battalion to defend New York when it was threatened, and in several Continental Congresses his pen was of the highest service to Liberty. His opinion should therefore be of value when the search is for the meaning of Liberty in 1776 and 1787, and the just province of Government.

"For who are a free people?" he asked. "Not those over whom Government is reasonably and equitably exercised, but those who live under a government so constitutionally checked and controlled that proper provision is made against its being otherwise exercised."

"A free people, therefore," he wrote in his sixth Letter, "can never be too quick in observing, nor too firm in opposing, the beginnings of alteration, either in form or reality, respecting institutions formed for their security. The first kind of alteration leads to the last: Yet, on the other hand, nothing is more certain than that the forms of Liberty may be retained when the substance is gone. In Government, as well as in religion, 'The letter killeth, but the spirit giveth life.'"

Therefore, the word Liberty, which had been in the vocabulary of English law since the year 1100 at least, had the meaning when the Constitution was written that Government could not, as Paine expressed it, "be applied to invade the natural rights which are retained in the individual, and in which the power to execute is as perfect as the right itself" — the Man needing as to those rights no help from Government. Liberty had the meaning when the Constitution was written that Government could not restrain the Man any further than, as Blackstone put it, was "necessary and expedient for the general advantage of the public." For the general advantage of the public as a fact, he clearly implies; and even then it can go "no farther." That Government can go "no farther" means that its pretensions are subject to examination and, if untrue, to rejection. The conclusion of Government as to how far and in what direction it should go "for the general advantage of the public" is not final. Its judgment may be at fault as to what "is necessary and expedient." Or, as history so often teaches, its judgment may be vicious. In either case there must be some means of stopping its activity or else Liberty will be lost. That fundamental need the Judicial Department of the national Government and the Judicial Departments of the States were established to supply. Instinctively the American has realized (for he never has been educated in constitutional government) that the courts are for the Man and his Life, Liberty, and Property.

"By Liberty," says Lord Acton, "I mean the assurance that every man shall be protected in doing what he believes his duty against the influence of authority and majority, custom and opinion. The State is competent to assign duties and draw the line between good and evil only in its immediate sphere. Beyond the limits of things necessary for its well-being, it can only give indirect help to fight the battle of life by promoting the influences which prevail against temptation — religion, education, and the distribution of wealth. In ancient times the State absorbed authorities not its own, and intruded on the domain of personal freedom. In the Middle Ages it possessed too little authority, and suffered others to intrude. Modern States fall habitually into both excesses. The most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities." [1]

[1] History of Freedom, p. 3.

In the United States to-day the erroneous belief has become rather prevalent that the minority cannot properly complain of any course of legislation or governmental conduct deemed necessary by the majority. This has come in part, probably, from what Bryce long ago wrote of as the fatalism of the multitude, added to lack of constitutional scholarship.

"Thus out of the mingled feelings that the multitude will prevail," he wrote, "and that the multitude, because it will prevail, must be right, there grows a self-distrust, a despondency, a disposition to fall into line, to acquiesce in the dominant opinion, to submit thought as well as action to the encompassing power of numbers."

But the chief cause of the condition is the general illiteracy of the people with respect to their Government and their rights under it and against it.


Americans Invented Judicial Safeguard

The constitutional Judicial Department to see that Government goes "no farther" than its authority extends is an American invention, and it has been recognized by the best minds of the world as the chiefest contribution of genius to the promotion of Liberty. It is well that the people have known this by instinct. But in view of the "drives" of recent years against the Judicial Department by propagandists and "blocs" with selfish interests or worse, it is important that the people reënforce their instinct with study; that they know the principles of their Government as the founders of it did, and be prepared to act on knowledge.

Parenthetically, for the information of those who believe that the present generation is too advanced to follow what one of them called "outworn philosophies," a sentence from Bryce suggests a comparison between the giants of Government to-day and the men who founded the Republic. "Five men at least of that generation," he wrote (1 Stud. H. & J., 306), "Washington, Franklin, Hamilton, Jefferson, and Marshall, belong to the history of the world; and a second rank, which included John Adams, Madison, Jay, Patrick Henry, Gouverneur Morris, Roger Sherman, James Wilson, Albert Gallatin, and several other gifted figures less familiar to Europe, must be mentioned with respect."

"The complete independence of the courts," wrote Alexander Hamilton in "The Federalist" (No. 78) "is peculiarly essential in a limited Constitution. By a limited Constitution I understand one which contains certain specified exceptions to the legislative authority, such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this all the reservation of particular rights or privileges would amount to nothing."

But courts are not likely long to be independent if the people permit them to be pursued by "blocs" and by a Legislative Department with what Madison called an "enterprising ambition" to extend its Power.

"But it is easy to see," quoting Hamilton again, "that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution where legislative invasions of it had been instigated by the major voice of the community." [1]

[1] That the "major voice of the community" seemed to call for legislation invading the constitutional rights of the sober man as well as shielding the drinker to excess, explains, doubtless, why the courts have held no liquor law invalid, however gross the affront to American manhood. As will be seen more fully, the Supreme Court of the United States has admitted that it had gone further in liquor cases than would have been constitutional in others, without any explanation of its power to do so. "The major voice of the community" is too often that of a minority highly developed in vocalization, as was illustrated in the case of woman suffrage, which, when obtained, the majority of women did not use, meaning that they never wanted it. Even less reliable as a guide is "the major voice" for liquor laws severe to the degree of unconstitutionality, when many of the advocates in both legislature and Congress are violators of their own legislation. The only safe and sure guide for courts is, not "the major voice of the community" at any given time of excitement or propaganda, but constitutional principle. But, as Hamilton said, this sometimes requires "an uncommon portion of fortitude in the judges." They must be supported by a capable press and an educated public opinion, neither of which exists to-day.

There have been not only "legislative invasions" of the field of the Judicial Department, but in the Presidential election of 1924 a candidate on a platform for practically destroying the Supreme Court and putting in the hands of Congress judicial power as well as legislative ("precisely the definition of despotic government," said Jefferson of blended powers) received over 4,800,000 votes from supposedly educated men and women, one-sixth of all cast.

What Blackstone meant by Government's going "no farther" is illustrated by a case (4 Wall., 333) where Congress undertook to punish men without trial in court and by jury and the Supreme Court held the Act of Congress void as a bill of attainder forbidden by the Constitution.

State legislatures also, like the national legislature, have overlooked the constitutional consideration that in dealing with the Liberty of the Man they could not "invade," as Paine put it, "the natural rights which are retained in the individual" — could, as Blackstone said, go "no farther" than was "necessary and expedient for the general advantage of the public" — no farther in fact than was necessary and expedient. A legislature possessed of the crusading spirit, or feeling that the General Will desires it to force people to be free, cannot go so far as its enthusiasm would take it. It is the place of the Judicial Department to stop it when it attempts to go further than is necessary in fact.

Thus the Supreme Court of the United States checked the legislatures of several States (262 U. S., 390) when they undertook to tell students what they could study and teachers and other individuals what they could teach. The laws were directed in the heat of war-time and after against the German language.

The provisions of the laws requiring teaching to be done in the English language were sound. And they were observed. But the step beyond that, to control the mind by dictating what should be learned and what should not be acquired as knowledge, that brought conflict with the limitation in the Fourteenth Amendment preventing the State from denying Liberty.

The laws were what is known in Natural History as a reversion to type, by which the peculiarity or disease of an ancestor reappears after the lapse of several generations. They were the recurrence, after two centuries and three-quarters, of the Conventicle Acts of the Tudors and the Stuarts, which told people what to think, how to worship, which forced them to be free and thereby populated Massachusetts. Preventing youth in school from studying any but the English tongue until after passing the eighth grade was considered by the legislatures to be "necessary and expedient for the general advantage of the public." But that conclusion was not final. The American took great pains to see that the conclusion of a legislative body should not be final when the conclusion should conflict with a constitutional provision. He had felt sorely what that meant in the Acts of the Parliament of England. "An elective despotism," wrote Jefferson, "was not the government we fought for." He said that a group of tyrants would be less manageable than one, a truth which legislatures have since demonstrated, although it needed no further demonstration.

If it cannot be tolerated that one sovereign shall be an autocrat, why should autocracy in the majority be suffered?

"In the absence of an agreement," says Herbert Spencer in "The Great Political Superstitution," "the supremacy of a majority over a minority does not exist at all."

And there is no "agreement" in our Government by which, as there was in Rousseau's scheme, a General Will can be evolved to force men to be free. Nothing is surrendered under our Constitution by the Man to the Government. On the contrary, the Constitution is to secure his pre-existing rights: that is what the Declaration of Independence says.

Pointing out that the majority in a corporation or other business organization cannot control where the original purpose is departed from, Spencer says:

And I contend that this holds of an incorporated nation as much as of an incorporated company.

So a departure by the majority from constitutional principle and purpose is void. What they do is not binding on the minority. The act of any corporation beyond its charter powers is called in the law ultra vires.

It had been made plain by over a century and a quarter of experiences that it is not "necessary and expedient for the general advantage of the public" that only the English language be taught to the young. The United States had progressed beyond example in the history of the human race while parents and children together, and entirely unaided by legislators, had selected the languages which the boys and girls would study. Indeed, that progress was doubtless furthered by the thought and culture gained from the German, the French, the Italian and the Spanish. Had our educators and statesmen begun long ago to look a little farther into America every boy and girl in school would have had an opportunity to learn Spanish and we would have now a hold on the good will and trade of the peoples south of us which never should have gone to Europe. We would have to-day a large population capable of moving as freely in the southern republics as they go from State to State at home. It is the right "against any Government on earth" of any man to teach or have taught that language to his children, and it is the right of pupils to learn it. The difficulties and misunderstandings which the Pan-American Congress has been working to resolve never would have arisen had we early learned to be on "speaking terms" with our American neighbors. It was probably more our duty to learn Spanish than it was theirs to learn English, for their ties to Europe were recently cut, comparatively, while our separation was long ago, and a mixture of immigrants has further weakened the feelings of consanguinity. This example is in itself enough to illustrate how destructive of Liberty and progress would be such a power as the legislatures of three States claimed to have and undertook to use. The finding of fact which the acts of the legislatures imported was false. It was to be set aside, just as the findings of fact of a jury always have been set aside by the court when contrary to the evidence or when manifestly based on passion or prejudice. For our Constitution is rested on principles of law tested by long experience and accepted as essential. In finding, or claiming or pretending to find, what is "necessary and expedient" the legislature cannot trample common knowledge under foot. The police power over the health, morals, safety and general well-being of the people stops where constitutional limitations begin. For illustration, the police power could not authorize two-thirds of property owners to fix the boundary line for the others, whether to the damage of their property or not; nor did "the convenient apologetics of the police power" sustain a State in regulating interstate highways; nor could a State make a tenement house of one in which one person more than the family lived and regulate it accordingly. Those acts were assumed by the States to be "necessary and expedient" for the public interest, but they were not so much so as the constitutional provisions for the protection of Liberty and Property. An act purporting to be for the public health or morals may have no substantial relation to the subject; indeed, the courts have been burdened with cases arising from such regulations.

It is the Constitution, and not the legislative notion, or even the General Will, that is "the supreme Law of the Land" in the United States. The Constitution so declares.

Another legislation cut from the piece with the Conventicle Acts was that of a State which forbade (Pierce v. Society, etc., 268 U. S., 510) attendance at any but the public schools, the purpose being to close schools in which religious precepts of any kind were taught. All those laws sought to control ideas, to cast all brains in one mold, to destroy competition (and therefore life) in thought, to make, in short, Government master of the Man. The Declaration of Independence says that that cannot be done, since Government derives its "just powers from the consent of the governed." And it adds that "whenever any Form of Government becomes destructive of these ends" — securing Life, Liberty and the pursuit of Happiness — "it is the Right of the People to alter or abolish it."

The Supreme Court of the United States held all those legislative acts void for conflict with the Fourteenth Amendment to the Constitution, which says:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property without due process of law.

Those cases fall clearly with Blackstone's definition of Liberty, which permits Government to regulate for the general welfare the natural rights of Man "no farther" than is "necessary and expedient." So by the common law of England, which the colonists brought with them, and which was afterward made (so far as not inapplicable to American conditions) the law of the States, either by constitutional provision or statutory enactment, the acts of the legislatures just reviewed were in derogation of Liberty as understood in 1776 entirely apart from the limitation on the power of the States written into the Fourteenth Amendment after the Civil War. Many other provisions of the Constitution are thus merely restatements of the common law of England, particularly those in the Bill of Rights (the first ten Amendments), which were reduced to writing to "make assurance double sure" and prevent as far as possible for the future the occasion of dispute. And it was held by the Supreme Court of the United States (Murray's Lessee v. Hoboken, 8 How. 272) that the "due process of law" guaranteed to the Man by the Constitution for the safeguarding of his Liberty and property entitles him not only to the protection of all constitutional provisions, but also to the shield of the English common law.

It is better to observe here in a parenthetic way than later that it is very significant that the three State laws dictating to parents, children and teachers what sources of culture in the languages should be open to their minds, were sustained (one justice dissenting in Nebraska, three in Iowa, and one in Ohio) by the Supreme Courts of the respective States as exertions of the police power not repugnant to the Constitution of the United States. The Supreme Court of the United States reversed the holding of the three courts of last resort in the States, two justices dissenting in the belief that "men might reasonably differ" as to the propriety or necessity of the legislation. The test laid down by a late authority (Freund, "Police Power," sec. 143) is whether "it is possible to secure the object sought without impairing essential rights and principles." The "object sought," it was said, was the stability of the State; and as the Nation had achieved its great destiny while other languages than English were being taught in school and out, the conclusion is unavoidable that the legislation was not necessary and that it therefore violated "essential rights and principles."


Independent Judges Necessary

Why did the State courts sustain the State laws? Were they made up of poor lawyers, or did the justices follow (insensibly or purposely) what seemed to be the popular feeling — what Hamilton called "the major voice of the community"? Cases too many to count have been thus unfairly cast upon the Supreme Court of the United States by the Supreme Courts of States when they have sustained laws of States not having in many instances the shadow of constitutionality. Undeserved criticism has been passed on the national Supreme Court when it has reversed such decisions. Is the elective judge in the States a failure? That is to say, is he naturally disposed to observe the will of the elective legislature which was elected at the time that he was elected? The Declaration of Independence pronounced bad the "Judges dependent on his Will alone for the tenure of their offices and the amount and payment of their salaries." Whether the sovereign be a George III, or the General Will which is too often inclined to force men to be free, makes no difference — the Sovereign should not hold judges in the hand. Accordingly the Constitution provided for nonelective, completely independent judges:

He [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for....

The Judges, both of the Supreme and inferior Courts shall hold their Offices during good Behavior, and shall, at stated times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Let James Wilson, one of the makers of the Constitution, explain (1 Wilson's Works, 364) the opinion of his day on this subject:

But how can society be maintained — how can a state expect to enjoy peace and order, unless the administration of justice is able and impartial? Can such an administration be expected unless the judges can maintain dignified and independent characters? Can dignity and independence be expected from judges who are liable to be tossed about by every veering gale of politics, and who can be secured from destruction only by swimming dexterously along with every successive tide of party? Is there not reason to fear that in such a situation the decisions of courts would cease to be the voice of law and justice, and would become the echo of faction and violence?

That is good thinking for the present day, when there is so much complaint of the failure of justice in the courts of the States.

And yet there has been insistent advocacy in some quarters of an amendment to the Constitution so that judges of the courts of the United States may be thrown into politics by being made elective.

Turning from Paine's and Blackstone's ideas of Liberty, a little space will be given to the views of James Wilson of Pennsylvania, the ablest lawyer in the Constitutional Convention, who was educated at Edinburgh and St. Andrews along with such men as Adam Smith, David Hume and William Robertson, who was instrumental in securing the ratification of the Constitution by Pennsylvania, and who was appointed by President Washington a justice of the Supreme Court of the United States, in which place he served with great distinction. It was in his day that the Bill of Rights was added to the Constitution, the Fifth Article (Amendment) of which forbids that by the Nation anybody "be deprived of Life, Liberty or Property without due process of law." Wilson's views of Liberty and the power of Government should, therefore, he helpful in finding the full and precise meaning of the word written into our Constitution, in the Fifth Amendment to protect the Man against the Nation, and in the Fourteenth Amendment to shield him from the tyranny of the State. Speaking at length and with power in the ratifying convention of Pennsylvania in favor of the Constitution, he said:

We have remarked that civil government is necessary to the perfection of society: we now remark that civil Liberty is necessary to the perfection of civil government.

Lecturing before the College of Philadelphia while he was a Justice of the Supreme Court of the United States, he laid down the purpose of Government:

What was the primary and the principal object in the institution of government? Was it — I speak of the primary and principal object — was it to acquire new rights by a human establishment? Or was it, by a human establishment, to acquire new security for the possession of those rights to the enjoyment or acquisition of which we were previously entitled by the immediate gift, or by the unerring law, of our all-wise and all-beneficent Creator?

If that question did not answer itself the correct response could be found in the Declaration of Independence: "that to secure these rights" — Life, Liberty, and the pursuit of Happiness — "Governments are instituted among Men." That is what Justice Wilson conveyed in his self-answering interrogatory.

In the same course of lectures Justice Wilson commented as follows on the Liberty of the Man against Government:

Every wanton, or causeless, or unnecessary act of authority, exerted or authorized or encouraged by the legislature over the citizens, is wrong, and unjustifiable, and tyrannical: for every citizen is, of right, entitled to Liberty, personal as well as mental, in the highest possible degree which can consist with safety and welfare of the State. "Legum" — I repeat it — "servi sumus, ut liberi esse possimus."

That is, we are servants of the law in order to be free.

Government must, as far as it is possible to do so, let the Man alone. It must let him alone mentally as well as physically. Government cannot, for illustration, tell a man what language he and his children may study, or force him to be free by accepting the belief that, when the majority desires, he should surrender his natural Liberty for a reason contrary to the common knowledge of mankind.

In the quoted passage Justice Wilson states precisely what Paine, Blackstone and others of the time laid down, that Government can go "no farther" than is "necessary and expedient for the general advantage of the public." If the step taken be not in fact "necessary and expedient," then it doubly wrongs the Man: by violating the common law as Blackstone stated it, and by violating the Constitution. It cannot be too often repeated that neither the Legislative Department nor even an overwhelming majority is the final judge as to how far it "is necessary and expedient for the general advantage of the public" to restrain the Liberty of the Man. That is a constitutional question to be passed upon by the Judicial Department of Government. And should the courts fail to maintain Liberty, then Government itself has failed and the powers committed to it through the Constitution, "incapable of Annihilation," as the Declaration of Independence says, "have returned to the People at large for their exercise." It is then for the people to take into their own hands the securing of the protection which the Judicial Department failed to give as the Constitution contemplated. It was because self-protection against Government was usually accomplished by the people in a disorderly and violent way that they worked out the constitutional method for the quiet and certain securing of Life, Liberty, and Property. But should the constitutional system fail, then the powers delegated to Government return to the People.

The success of the constitutional system devised for preserving Liberty is contingent upon independent, competent, and courageous judges with an educated press and people at their back. Without the press and people they cannot stand. How deplorable and dangerous has been the lack in this respect was demonstrated in 1912, when a political party advocated the recall of judicial decisions by the voters (who would, of course, know nothing about the constitutional questions involved) and its candidate carried six States, receiving over twenty-seven per cent. of the popular vote. This idea was first politically expressed in the platform of the Socialist-Labor party. The recall of decisions, and the recall of judges themselves, had been under discussion for several years. In 1908 a State amended its constitution to recall judges, that is, to mob at the polls a judge whose decision might, although sound, be unpopular. Several other States followed the example. At least one State amended its constitution to recall both the judge and his decision. Even in 1913, the year after the presidential election mentioned, two State legislatures proposed amendments for the recall of judges.

But the bar and press finally slew the evil thing, fuller details of which are omitted because most who had to do with it are well ashamed.

The proposal to destroy the independent Judicial Department, invented by American genius and established through the Constitution for the protection of Liberty, has been paralleled by nothing in our history but the teaching of secession.


Can Government Be Effectively Limited?

Thirty years ago one of the leaders of the American Bar spoke precisely as Paine and Blackstone wrote of the "necessity" which is a condition precedent to a grant of any further power by the People to Government. "Liberty is safe when, and only when," said James C. Carter, "for each delegation of power which is demanded a necessity is shown." The existence of that necessity is not a question of policy for the Legislature or the Congress or even the majority to determine: it is a constitutional question for the courts. Otherwise the policy of the legislatures which undertook to control the minds of men in the acquisition of linguistic learning in the belief (presumably) that that course was "necessary and expedient for the general advantage of the public" would have stood, just as the Conventicle Acts of Parliament stood where Government was not held in proper place by courts and constitutional barriers. Carter's idea was that as the Constitution specifies the powers of each of the three departments of government, and then says in the Ninth Amendment that the people retain to themselves other powers, and in the Tenth Amendment that either the State or the people retain all powers not granted, it was the purpose to let Government have only necessary powers. Therefore, the safety of Liberty requires that, before any further grant of power be made or admitted, necessity that Government have such power must clearly appear.

Where Congress assumed the power not granted to it by the Constitution to declare the "policy" in the District of Columbia that by the contract of employment the employer should be charged with a duty to the employe of support from which even the parents are discharged when their children reach the age of 21, the conclusion of Congress was subject to review — it was not final. For however praiseworthy the motive and desirable the aim that each working woman receive from private employers good pay (even though the Government is a niggardly paymaster), it is a constitutional question whether a minimum wage law for the general welfare violates the prohibition of the Fifth Amendment, "nor shall private property be taken for public use without just compensation," when it sets weekly wages which an employe may be unable to earn, for lack of strength or lack of something else, which places no obligation upon the employe justly to earn it when able, and which takes no account of the earning ability of the employer's business to carry the charge. It is generally recognized that the ordinary employe has but little show in driving a bargain with the employer, and that therefore he is entitled to all lawful help. But labor in this country has made such great and rapid improvements in conditions through organization, able leadership, and the force of public opinion that it certainly can carry on its work without the aid of measures of questionable legality. And the courts have been good to labor. Persons needing help beyond their capacity to earn have usually been taken care of by taxpaying society. Certain it is that the helpless should be helped in the interest of public welfare; but, as the Supreme Court held in 1923 (Adkins v. Children's Hospital, 261 U. S., 525), private money or property cannot thus be taken for the public benefit while the Fifth Amendment stands. The provisions of the Constitution of the United States, the "supreme Law of the Land," express the highest "policy" down to date.

In 1874 it seemed "necessary and expedient" to Congress to enact that in a proceeding against a man for violation of the revenue laws he should be required to produce for inspection and for use in evidence his books and papers, and that, upon his refusal, the charges made against him should be taken as confessed, without further proof. On a trial in 1886 it became important to show the quantity and the value of an importation of plate glass. The accused produced his books in pursuance of the ruling of the trial court, but under protest that the law was in violation of his constitutional rights, and they were introduced in evidence. Reversing the judgment of the trial court, the Supreme Court of the United States held (Boyd v. U. S., 116 U. S., 616) that there was a violation of both the Fourth Amendment and the Fifth, the Fourth making the people "secure in their persons, houses, papers, and effects against unreasonable searches and seizures," and the Fifth forbidding that any one "be compelled in any criminal case to be a witness against himself." He was by the use of the books made to testify against himself. Nor were the books obtained as the Fourth Amendment directs, by a search warrant issued only "upon probable cause, supported by Oath or affirmation, and, particularly describing the place to be searched, and the person or things to be seized." To follow that very particular direction of the Fourth Amendment, which was written on a very sufficient historical background, the Government might be unable in many instances. Therefore, why not make a short cut to the conviction of the accused? On the "necessity" of this procedure in order to convict the guilty, "men reasonably might differ," as the dissenters said in the foreign language cases, and therefore the Constitution would not be violated. Congress found it "necessary and expedient" — why should not the finding of Congress stand? Simply because such methods had prevailed in England and had been practiced on the colonists when there was no Constitution to forbid and no court to hold a shield. So the writers of the Constitution, who had seen and experienced enough of striding Power, laid down the rule of justice for all time. Of the importance of constitutional safeguards to the Man, and of their worthlessness when the Judiciary falters "because men reasonably might differ" or for other motives, the spirited observations of the Supreme Court in the Boyd case forty-two years ago give illustration:

Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains the substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the courts to be watchful of the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.

Obsta principiis — resist the first beginnings. Do not let the tyranny of Government get a start. "In questions of power, then," wrote Jefferson, "let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

The limitations in the Constitution are Liberty, according to the compact and complete definition of Mill. Where there are no limitations Liberty cannot be. For Government will always make "mischief," Jefferson said. It took him to select the right word. Where the limitations set by patriots are broken down, there Liberty goes out and Tyranny stalks in. In no other government that has ever existed have limitations on Power been so characteristic of the structure as they are of the constitutional Government of the United States. It is essential that the people understand those limitations so that they may detect the first tendencies toward transgression and express their objections to what may be taking place. That would prevent the supreme courts of the States and the Supreme Court of the United States from being overburdened with unconstitutional legislation, on which the silence of the people indicates approval. It is not in reason to believe that a few men can stand forever without such help against the surging tides of unconstitutional legislation and the attempts of legislative bodies to curtail the judicial power conferred by the Constitution.

"In proportion as the structure of a government gives force to public opinion," wrote Washington in his Farewell Address, "it is essential that public opinion should be enlightened."

It was with that idea that the public school system was established. It never has met in this field the purpose of its creation, what Washington called an enlightened public opinion. The colleges and universities also have been deficient here.

The foregoing explanation of the theory and purpose of the founders of the Republic for the control of Government, and especially of their understanding of Liberty as written in their two Declarations of Rights, in the Declaration of Independence, and in the Constitution, leads up to the question whether the Judicial Departments of the States and the Supreme Court of the United States have protected Man as it was intended that he should be shielded from the reach of Power.




Tributes to American Judicial System

IN this chapter there is to be reviewed and analyzed a series of judicial decisions arising out of liquor laws, beginning with Prohibitory Amendment cases (24 Kansas, 499), decided by the Supreme Court of Kansas in 1881, under the constitutional amendment of the preceding year, and ending with Lambert v. Yellowly (272 U. S., 581), decided by the Supreme Court of the United States in November, 1926, holding that Congress had power to enact a law regulating within the States the prescribing of liquors by physicians for medicinal purposes. The third chapter will deal with laws and decisions consequent upon these.

There will appear from this review the steady and complete wiping out of the common-law and the constitutional Liberty of the Man in this field, through the yielding of the Judicial Department to the aggressions of the Legislative, and to the will of an audacious propaganda.

The analysis will cover ten decisions of the Supreme Court of Kansas and the Supreme Court of the United States in direct line of descent, so to put it; and it will include the decisions of the Supreme Court of the United States on which those holdings were based, reaching back to 1847.

There will be examined four acts of Congress dealing unconstitutionally with the police powers of the States and usurping authority reserved to the States by the Tenth Amendment to the Constitution.

The Eighteenth Amendment and the legislation and decisions under it will of course be considered.

In its entirety this legislative and judicial record invites the careful consideration of the thinking citizen.

The supreme courts of the States, the justices of which are elective, have given but little protection to the Supreme Court of the United States against the onrush of unconstitutional legislation by the States in various fields. To action by the States, often irrational as well as unconstitutional, the courts of last resort in the States have in too many instances given their sanction. That was the easy way and the popular. In addition to the unjust burden of such cases the Supreme Court has had to face the increasing aggressions of Congress, such as were exhibited in the child-labor acts, and in other laws to be here reviewed.

In the elaboration of this thesis no pleasure will be found. The Judiciary has been subjected to so much unwarranted criticism of various sorts, most of it springing from constitutional illiteracy, which prevails among all classes and pervades the institutions of learning, and it has been the object of so many assaults by the Legislative Department in its reach for power which the Constitution withheld from it, that it would be far more agreeable to leave unsaid anything with even the appearance of censure.

Moreover, our judicial system, an American invention for the control of governmental Power — another way of saying the maintenance of individual right and Liberty — has drawn the admiration of the world to its general operation and has been copied in its fundamentals by many peoples, notably the Canadians and the Australians, who had seen demonstrated in our plan securities which the government of the mother country never had provided.

When James Bryce wrote (1888) "The American Commonwealth" fifty years ago Canada had been living for twenty years under a Constitution which was modeled on ours and which established a Supreme Court clothed with power to pass upon the question, when raised by a party to a lawsuit, whether a law of a Province or a law of the Dominion passed beyond the boundaries prescribed in the Constitution, the North America Act, 1867. In a remarkable discussion of and tribute to our judicial system (Vol. 1, ch. 23) Bryce said:

The march of democracy in England has disposed English writers and politicians of the very school which, thirty or twenty years ago, pointed to America as a terrible example, now to discover that her Republic possesses elements of stability wanting in the monarchy of the mother country.

They lament that England should have no Supreme Court.

After mentioning that the principle of limited power in the legislature, with judicial review, had been at work in some of the American States before the Constitution was written, and in some of the Colonies before the Declaration of Independence, and that anyway the doctrine might be old (though he did not point it out elsewhere), he said that the novelty of the American method is "a Supreme or Rigid Constitution reserving the ultimate power to the people, and limiting in the same measure the power of the legislature [Congress]." Then he added:

It is nevertheless true that there is no part of the American system which reflects more credit on its authors or has worked better in practice. It has the advantage of relegating questions not only intricate and delicate, but peculiarly liable to excite public passions, to the cool, dry atmosphere of judicial determination.

In another work (1 Studies in Hist. and Jurisp. 428) Bryce, discussing the judicial system which Australia built on ours, said:

In working out the provisions of the Constitution by an expansive interpretation, continuous but large-minded, it may render to Australia services not unworthy to be compared with those which America has gratefully recognized.

Professor A. V. Dicey of Oxford University, a great authority in constitutional law, paid like tribute to the judicial philosophy of our forefathers. In the "Law of the [British] Constitution" Dicey, dealing with the supremacy of the Parliament of England over courts and other departments, had this to say of the American mechanism of Government:

The Federal Judiciary, on the other hand, are co-ordinate with the President and with Congress, and cannot without a revolution be deprived of a single right by President or Congress.

That refers to the breaking by our Constitution of the power of Government into three grand divisions and the apportioning of it, under specifications and limitations, to the Legislative Department (the Congress), the Executive Department (the President), and the Judicial Department (the Supreme Court and inferior courts of the Nation), each of which is to keep out of the sphere of the others, with the courts for determining, upon the suit of a citizen, whether the Legislative Department or the Executive has transgressed a constitutional boundary and thereby deprived him of a right. For, as Madison wrote in "The Federalist" (No. 48), "a mere demarcation on parchment of the constitutional limits of the several Departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands."

Notice that expression of the general fear in Madison's time of the concentration of the powers of government. It should be a fear to-day.[1]


[1] In the natural course of the growth of the country power and forces will mass in Washington without the aid of amendments to the Constitution or legislation creating new bureaus, such as the defeated child-labor amendment would have established, and such as the unconstitutional Act of Congress for the Promotion of the Welfare and Hygiene of Maternity and Infancy of 1921 (renewed in 1927) has set up. For example, it requires a whole page of the annual report of the Secretary of the Interior merely to enumerate the different activities which, with the growth of the country, have come under his charge. Another illustration of the natural growth of departments of the Government at Washington is offered by this tabular history of the Interstate Commerce Commission:

Year No. of Members No. of Employes Expenses No. of Cases No. of Reports No. of Hearings
1887 (created) 5 11 $ 113,000 82    
1906 7 221 385,556   32 73
1910   577 1,178.208      
1916     4,851,522      
1917 9       836  
1920 11 1796 5,186.960 1137    
1927     6.153.157 1776 1439* 1600
1928   2617 7,811,314†      

* Includes finance and valuation as well as rates.

† Appropriation made.


There must be some way to enforce obedience to the limitations laid down in the Constitution. On this Dicey says:

The legal supremacy of the Constitution is essential to the existence of the state. The glory of the founders of the United States is to have devised or adopted arrangements under which the Constitution became in reality as well as name the supreme law of the land. This end they attained by adherence to a very obvious principle, and by the invention of appropriate machinery for carrying this principle into effect.... The legal duty, therefore, of every judge, whether he act as a judge of the State of New York or as a judge of the Supreme Court of the United States, is clear. He is bound to treat as void every legislative act, whether proceeding from Congress or the State legislatures, which is inconsistent with the Constitution of the United States.

Dicey says further:

The power, moreover, of the courts which maintains the articles of the Constitution as the law of the land, and thereby keeps each authority within its proper sphere, is exerted with an ease and regularity which has astounded and perplexed continental critics.

Those quotations are enough to show that to the mechanism of our constitutional judicial system, and generally to its operation, the best minds abroad, as well as those at home, have given fullest approbation.

It is with exceptional, not general, conditions that this chapter is to deal.

The inquiry is whether the courts have stood firmly for the Liberty of the Man against the pressure of legislatures, "blocs," and public sentiment, as Chief Justice Marshall stood against President Jefferson and all the forces of his administration in their purpose to destroy Aaron Burr, when he, sitting as a trial judge at Richmond, directed the jury that they must bring in a verdict for the defendant because the evidence offered against him by the Government did not come up to the requirement of the Constitution as to proof of a charge of treason. Marshall was hanged in effigy for this. But that contributed to his immortality.[1]

[1] See Norton's "The Constitution of the United States: Its Sources and Its Application," p. 149.

Thirty-six years ago Judge John F. Dillon, formerly Chief Justice of the Supreme Court of Iowa and afterward a judge of the United States, lecturing before the Law School of Yale University and addressing himself to the constitutional provisions written for the protection of Life, Liberty, and Property, sensed the situation which has since developed and which is to be dealt with here:

The value, however, of these constitutional guarantees wholly depends upon whether they are fairly interpreted and justly and with even hand fully and fearlessly enforced by the courts....

If there is any problem which can be said to be yet unsettled, it is whether the Bench of this country, State and Federal, is able to bear the great burden of supporting under all circumstances the fundamental law against popular, or supposed popular, demands for enactments in conflict with it. It is the loftiest function and the most sacred duty of the judiciary — unique in the history of the world — to support, maintain and give full effect to the Constitution against every act of the legislature or the executive in violation of it. This is the great jewel of our liberties. We must not, "like the base Judean, throw a pearl away richer than all his tribe." This is the final breakwater against the haste and passions of the people — against the tumultuous ocean of democracy. It must at all costs be maintained.[1]

[1] Dillon's "Laws and Jurisprudence of England and America," p. 214.

It is not unlikely that Judge Dillon there had in mind the case of Mugler v. Kansas (123 U. S., 623), decided by the Supreme Court of the United States (1887) four years earlier, upholding an absolute prohibitory law of that State and the constitutional provision under which it was enacted. It is that decision and the judicial pronouncements which preceded it and to which it has given rise that are to receive examination here.

By an absolute prohibitory law is meant one which takes no account of the rights and liberties of those persons who are not constitutional subjects of the police power of the State: who are competent to use as a beverage what has been recognized at least since the time that Jesus made wine as unobjectionable drinks when taken in moderation, and who have, therefore, the indubitable right to purchase, carry, and consume them.

The police power, which has to do with the health, safety, morals, and general well-being of the people, as well as the detection and punishment of crime, has in later prohibitory laws (though not in some earlier regulations) classed with the weak and unfortunate who use liquor to excess to the damage of themselves, their families and society, and who should therefore receive from the State every reasonable protection, the competent and strong who need no help from legislatures, and who do not contribute to the delinquency of inebriates. It has put the inebriate and the sober in one classification and treated them accordingly.

Of course, the strong and competent must yield convenience (not right) when reasonably necessary for the help of the weak. Regulation for the behoof of one cannot work deprivation of right or property to another. As the great Chief Justice Shaw of Massachusetts said fifty years ago in passing on a regulation of voting, that while some ordering is proper, nevertheless "such a construction would afford no warrant for such an exercise of legislative power as, under the pretense and color of regulation, should subvert or restrain the right itself."

That difference between regulating, for the good of society, the use of rights, and destroying the rights, the great question in all prohibitory laws, seems not to have been clearly comprehended from the Mugler case down. True, in the Mugler case, as will be seen more fully, the Supreme Court said that there is a limit to the scope of the police power of the State, but the holding contradicted that, for it sustained absolute prohibition, which means that it disregarded the right of a competent person to use a beverage without harm to society or himself.

That right or Liberty cannot be constitutionally destroyed. The enjoyment of it may be very much restricted (as in the closing of all public places and other pitfalls) for the welfare of others and the general good of society, but it cannot be destroyed.

And it is probable that the decision of the Supreme Court of Kansas in 1883 in the Mugler case (29 Kansas, 252), and a decision of a Federal Court (26 Fed., 289) in that State in 1885, both holding that the State possessed power to prohibit absolutely the manufacture and sale of intoxicating liquors for beverage purposes, with total indifference to and disregard for the rights of those competent to use liquor in moderation without harm to the weak or to society in general, were in the mind of Judge Thomas M. Cooley, the foremost constitutionalist of his day, when he used this language before the Bar of South Carolina in 1886:

The habit of mind which consents to the doing of constitutional wrong when it is supposed some temporary good may be accomplished, should be recognized as a foe to constitutional limitations, and securities, and should, therefore, at any cost, be corrected.

Bryce, whose manuscript had gone to the printer before Mugler v. Kansas was decided, saw clearly the difficulties attending the Supreme Court and the need of support for it from an educated public mind:

The Supreme Court is the living voice of the Constitution — that is, of the will of the people expressed in the fundamental law they have enacted. It is therefore, as some one has said, the conscience of the people, who have resolved to restrain themselves from hasty or unjust action by placing their representatives under the restriction of a permanent law. It is the guarantee of the minority, who, when threatened by the impatient vehemence of the majority, can appeal to this permanent law, finding the interpreter and enforcer thereof in a court set high above the assaults of faction.

To discharge these momentous functions the court must be stable even as the Constitution is stable. Its spirit and tone must be that of the people at their best moments. It must resist transitory impulses, and resist them the more firmly the more vehement they are. Entrenched behind impregnable ramparts, it must be able to defy at once the open attacks of the other departments of the government, and the more dangerous, because impalpable, seductions of popular sentiment.

That is a great passage. It presents inferentially the strongest argument for the thorough education of the people in their constitutional philosophy.

Bryce offered no criticism of importance, save that he thought that the Supreme Court had given some ground. It was the Legislative Department (Congress) that he criticized, and very justly. Looking back over the operations of the three Departments, he concluded:

At this moment there is nothing to show that any one Department is gaining on any other. The Judiciary, if indeed the judges can be called a political department, would seem to have less discretionary power than seventy years ago, for by their own decisions they have narrowed the scope of their discretion, determining points which, had they remained open, the personal impulses and views of the Bench might have room to play.

Congress has been the branch of the government with the largest facilities for usurping the powers of the other branches, and probably with the most disposition to do so. Congress has constantly tried to encroach both on the Executive and on the States, sometimes, like a wild bull driven into a corral, dashing itself against the imprisoning walls of the Constitution.

What Bryce saw was a realization of the warning (now a prophecy unhappily realized) of Madison in "The Federalist" (No. 48) respecting the tendency of the Congress:

It is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.

Among the mass of people to-day, who are wholly uneducated in constitutional principles, it is erroneously believed that as the members of Congress are elected by the people, what Congress does is an expression of the people's highest will and is therefore not to be questioned. But the highest will of the people is written in the Constitution, in which they have declared it to be "the supreme Law of the Land," and therefore anything done by Congress (the servants of the people) out of harmony with the requirements of the Constitution is necessarily void, and the Judicial Department must so pronounce it when a citizen questions in court the validity of the act and claims infringement of his right. Thus, where Congress, in disregard of the command in the Constitution that "the Trial of all Crimes ... shall be by Jury," provided for imprisonment without trial, the Supreme Court was obliged to hold the Act of Congress void for conflict with the "supreme Law of the Land." The law was a nullity from its inception. Contrary to the talk of demagogues and the uninformed, the Supreme Court did not "nullify" an act of Congress. It could not nullify what was already null.

Enough has been quoted from foreign authorities, who are preferred here because they would not be inclined to overpraise, to show that our judicial system is the greatest of governmental devices, and that, speaking generally, it has operated with a measure of success "which has astounded and perplexed continental critics," as Dicey expressed it.

But for all of that there remains the question for respectful but thorough consideration whether the constitutional guaranties of the Liberty of the Man have been, as Judge Dillon phrased it, "fairly interpreted and justly and with even hand fully and fearlessly enforced by the courts" against the power of Government.

The answer is No.

This proposition is to be demonstrated in the spirit with which Thomas H. Benton, after closing thirty years in the Senate, expressed (1851) his disapproval of the decision of the Supreme Court in the Dred Scott case:

I am a friend of the Supreme Court as an institution — as a high and essential part of our system — and would not willingly derogate from its respect, or impair its utility. But the whole system, of which it is a part, and the whole people, of whom its members are a few, are overruling considerations.... I am among the last of those who, acting with the generations that are passed, still adhere to their teachings.... And of those who survive, and who stood by them in their great efforts, and still stand where they stood, I am one of the few — no longer in power, but still in armour when the works of our fathers are in danger. I write for no party, but for all men who venerate the works of our ancestors, and who wish to see our Government kept on the foundations on which they placed it.

With those preparatory observations the examination of the legislation and the decisions will be taken up. The last case will be considered first, for this method will make easier an understanding of the earlier cases.


Regulating Prescriptions of Physicians

In November, 1926, the Supreme Court of the United States upheld (Lambert v. Yellowly, 272 U. S., 581) the Act of Congress of November 23, 1921, forbidding physicians to prescribe to one person within ten days more than one quart of vinous liquor, or any vinous or spirituous liquors containing separately or in the aggregate more than one-half pint of alcohol. The act forbids also that any physician issue more than one hundred prescriptions within ninety days unless he has made it clear to a Commissioner "that for some extraordinary reason a larger amount is necessary," whereupon the Commissioner will furnish to him additional prescription blanks.

Four of the nine justices dissented on the ground that the Eighteenth Amendment gave the Nation a police power over liquors "for beverage purposes" only. The Amendment did not, the Supreme Court had held in an earlier case (260 U. S. 377), displace or cut down consistent State laws; on the contrary, it removed from the path of the States obstacles which had prevented them from enacting more stringent legislation.

All the police power that the States had before the Amendment they retained, both as to liquors for beverages and liquors for medicine. The general police power, which inheres in the people of the States, and in which the Nation never shared until this Amendment was adopted, is defined, as previously shown, as the power of government to deal with the health, the morals, the safety, and the general well-being of the people, including the prevention, the detection, and the punishment of crime. Wherever men gather and establish social and civil order, there the police power exists in them. It came over with the colonists in the ships; it received expression in the Mayflower Compact of 1620, when the Pilgrims pledged "all due submission and obedience" to "such just and equal laws" as it might from time to time seem necessary to enact; and it was carried across the continent in the stout hearts of the pioneers who founded settlements where only the law of Nature had existed.

It was not the intention of the founders of the Republic that the Nation should ever possess this police power.

"I ask for no straining of words against the General Government," wrote Jefferson, "nor yet against the States. I believe that the States can best govern over home concerns and the General Government over foreign ones. I wish, therefore, to see maintained that wholesome distribution of powers established by the Constitution for the limitation of both, and never see all offices transferred to Washington."[1]

[1] See Norton's "The Constitution of the United States: Its Sources and Its Application," p. 226.

He would question the accuracy of his senses could he come to-day and take notice of the swarming of officeholders at Washington and other centers of population during the last two or three decades, a large part of whom are watching, questioning, checking, investigating, or manhandling the citizen, who is illiterate as to his rights against Government. The wooden-shod of France were not more docile to Bourbonism than the present-day American is to a Government broken loose from constitutional observance in several fields.

The first section of the Eighteenth Amendment reads:

After one year from the ratification of this article the manufacture, sale or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

The italicized words show that the only subject in contemplation of the framers of the Amendment in Congress and of the legislatures of the States which ratified it was liquors "for beverage purposes."

With that propensity to meddle in and assume jurisdiction of the affairs of the States which has more and more characterized Congress in recent times, it proceeded, within less than two years of the taking effect of the Amendment, to step into the police field of the States and snatch from them their inherent power over liquors for medicinal purposes.

For that course the Committee of the House of Representatives reporting the bill gave these reasons:

Unless some limit is placed upon the amount of such liquors that may be prescribed, a number of physicians who do not have the high ethical standards of the large majority will abuse the privilege. Evidence was presented to the Committee of physicians who issued hundreds of prescriptions within a few days when the total number of other prescriptions was a negligible number.

Why did not the listening congressmen send the complainants to the grand jury or the prosecuting attorney in their own State, since the report shows "that most of the States have more stringent provisions than the one contained in section 2"? The offending physicians could there be punished by the proper authority. Why did not the complainants go to the State authorities instead of visiting Washington at all? And if the State of the complainants was lacking in a law sufficiently regulating the conduct of physicians, why did not the congressmen tell them to go home and work for a law sufficient? Even if none of the States had "more stringent provisions than the one contained in section 2," Congress should not have presumed to invade them as to liquors for medicinal purposes. But when Congress knew that "most of the States have more stringent provisions," its act in spreading its authority over all the States was the insolence of its rapidly-growing autocracy, which has more than once attacked the Supreme Court itself, a coequal constitutional Department.

It is not admitted that a State has such power as Congress exercised here to dictate to competent and honorable physicians. It can deal with the physician only as it deals with other men, when he has violated law. It is against the policy of the law to enjoin the commission of crime: the presumption is that a man will not commit it, and he is therefore not disturbed until he has violated law. The like principle is the basis of the liberty of the press and of speech. The censorship of former times before publication in order to forestall libel or other wrong was discarded over 300 years ago. The law takes hold of a man, not before he has committed a misdemeanor or a crime, but after. The act of Congress is therefore at war with the best thought and experience in the law.

Yet in a footnote the Supreme Court cites a list of State statutes regulating prescriptions by physicians. A law by which an unschooled legislature dictates in the science of medicine and takes from a scholar his brains cannot be in consonance with Liberty; and the citation of so many acts of that kind merely illustrates what history has taught unceasingly, that it is very easy indeed for Government to make a victim of the Man.

The Committee of the House of Representatives which reported the bill for passage made plain that the evil to be corrected was small. It said that "a number of physicians who do not have the high ethical standards of the large majority will abuse the privilege." It did not say how many, thus justifying the inference that it could not show a bad record. The "large majority" are beyond criticism. Only "some" are not. But if the great majority of physicians in the United States were prescribing liquor wrongly, the question would still remain whether Congress could take the correction of that evil out of the hands of the States by extending its authority beyond the plain grant of power contained in the Eighteenth Amendment.

"An elective despotism," wrote Jefferson, "was not the government we fought for." He had studied and seen enough to know that while a King George III might be thwarted and defeated in his tyrannies, an elective body, feeling that it represents the people, who are the source of power, would not brook any limitation on its will. It is for this reason that the Constitution not only sets specific bounds to the activities of Congress, raises safeguards to the sovereignty of the States in their proper fields, and puts defenses around the Man and his Liberty and Property, but also establishes a Judicial Department that those limitations be not transgressed.

As previously remarked, the Judicial Department has been repeatedly assailed by Congress, as when it undertook to tax the salaries of Federal judges in violation of the command of the Constitution (Article III, Sec. 1) that their compensation "shall not be diminished during their Continuance in Office," when it had bills before it to tell the Supreme Court by what majority it should decide cases; when it passed a bill to deprive courts of part of the equity powers conferred on them by the Constitution; and when one of its leading lights went to the country on a presidential platform for destroying the Judicial Department which the Constitution set up and making the Legislative Department the judicial interpreter of its own acts, thus seeking to achieve that combination of two powers in one hand which the founders of the Republic referred to as "precisely the definition of despotic government." What would the people think if the Executive Department were to undertake to tell the Legislative Department how to pass a bill, as members of the Legislative Department would tell the Judicial Department how to decide a case? [1]

[1] In May, 1928, the Senate provoked a storm of protest from the press by passing a resolution that the Supreme Court permit an outsider to appear in a pending case, a gross interference by one coordinate branch of the Government with the constitutional prerogative of another.

"The courts were designed to be an intermediate body between the people and the legislature," wrote Alexander Hamilton in "The Federalist," "in order, among other things, to keep the latter within the limits assigned to their authority."

And if the Judicial Department of the government fail or waver in this duty, then our road to chaos will be as plain as the road to mill.

It is our judicial system which distinguishes our government from all that have gone before along the road to ruin, including those of Europe which were sunk in the World War. For "History, with all her volumes vast," wrote Byron, "hath but one page." That page tells of the centralization of power, and then tyranny, and then ruin.

Of the legislative body or Congress this was written in "The Federalist" (No. 48) by James Madison, one of the greatest men in the Constitutional Convention:

But in a representative Republic, where the executive magistracy is carefully limited, both in the extent and the duration of its power; and where the legislative power is exercised by an assembly which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions by means which reason prescribes: it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.

Hence the careful enumeration in section 8 of Article I of the Constitution of the powers conferred upon Congress, and the careful statement in section 9 of the powers denied to it. Over all is the Tenth Amendment, the last word in the Bill of Rights, that is, rights which Government cannot diminish or take away. The Tenth Amendment reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In other words, the Nation is not to assume to itself any power not delegated to it that seems to be unused or unclaimed by others. Concretely, because some States may not look after carefully the professional conduct of physicians, that does not mean that the police power to supervise has been lost by the States and that the Nation may therefore pick it up and put it in operation. The Tenth Amendment recognizes latent or unused powers in the people and also in the States, and it warns the Nation to let them alone. The Nation can exert no power not conferred upon it by the people in their Constitution. By the Eighteenth Amendment the people conferred upon Congress "concurrent power" with the States to control "the manufacture, sale, or transportation" of intoxicating liquors "for beverage purposes." Just as explicitly by that language the control over liquors for medicinal purposes was excluded. Inclusio unius est exclusio alterius, the maxim runs: the enumeration or inclusion of one thing is the exclusion of other things. For, as Bryce pointed out, the American Government is based upon the simple principle of agency. Each of the three Departments is an agent of the people to perform certain assigned duties. It can perform no others, any more than when a man is made another's agent to buy a farm he can assume by that authority to purchase also a building in the city. And when by the Eighteenth Amendment the people authorized the Legislative Department (Congress) to deal with beverages, that was the end of its agency on the liquor subject.

In applying the Constitution to practical affairs it is more important that limitations upon Government be liberally construed in order to give them effect than it is that the grants of power to Congress be liberally construed. The Tenth Amendment is a limitation upon the Nation in protection of the people and the State. The Eighteenth Amendment is a grant of power to the Nation the like of which it never had before. As it was in derogation of American constitutional principle, it should have been very strictly construed in the interest of the sovereignty of the State at home. When these two amendments came in conflict in the case of the physicians all doubts should have been resolved in favor of the Tenth and the historic and cherished governmental integrity of the State. This sound rule of construction was followed by the Supreme Court in a case arising out of the war with Spain, when Congress put a stamp tax on bills of lading, including those on shipments to foreign countries, which tax was held as to a cargo of wheat for Europe to be forbidden by Article I, section 9: "No Tax or Duty shall be laid on Articles exported from any State."

Now, although in section 8 of Article I the Constitution gives to Congress power "to lay and collect Taxes, Duties, Imposts and Excises," and although the "sweeping clause," so called, closing section 8, empowers Congress "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers," it was nevertheless held that the liberal construction which the "sweeping clause" intends could not prevail over the prohibition that "no Tax or Duty shall be laid on Articles exported from any State." Even the exigencies of war were not enough to impel the Supreme Court to put a narrow construction on a limitation — the limitation on the power of Congress to tax exports from any State. It construed liberally the "Don't" addressed in the Tenth Amendment to Congress and to itself. It held the stamp tax on the bill of lading under which the shipment moved to be in reality a tax on the export itself and therefore void.

The language of the Supreme Court (Fairbank v. U. S., 181 U. S., 283) is interesting (italics inserted):

If the Constitution in its grant of powers is to be so construed that Congress shall be able to carry into full effect the powers granted, it is equally imperative that where prohibition or limitation is placed upon the power of Congress, that prohibition or limitation shall be enforced in its spirit and to its entirety. It would be a strange rule of construction that language granting powers is to be liberally construed and that language of restriction is to be narrowly and technically construed. Especially is this true when in respect to grants there is, as heretofore noticed, the help found in the last clause of the eighth section and no such helping clause in respect to prohibitions and limitations.

While the Eighteenth Amendment has a helping clause, as the court terms it, the Tenth Amendment is an unqualified limitation on the power of the Nation in defense of the sovereignty of the State in its proper sphere. The second section of the Eighteenth Amendment empowers Congress and the States concurrently to enforce the Amendment "by appropriate legislation." But that helping clause cannot be used to extend or enlarge the grant to other matters. Thus the selfsame words, "by appropriate legislation," in both the Thirteenth Amendment (liberating the slave) and the Fourteenth (giving the Negro citizenship), were held (Civil Rights Case, 1883, 109 U. S., 3, 24) not enough to warrant Congress in fixing punishment in the Civil Rights Act for persons who should discriminate at hotels, theaters and other public places against the liberated Negro, because the amendments are to prevent States from permitting "involuntary servitude" or abridging "the privileges or immunities of citizens." But, it was argued, if the purpose of the amendments was to protect the freedmen in the enjoyment of all the privileges of the white man, of what practical use were the amendments when the white man's hand could often be against the Negro? Why, therefore, was not the Civil Rights Act "appropriate legislation" to carry the amendments into effect? The answer was substantially that the "appropriate legislation" was to effectuate the amendments as written and adopted, not as Congress would rewrite them.

So with the Eighteenth Amendment: the "appropriate legislation" which Congress is authorized to enact must relate to the grant of power as made to it. The "helping clause" does not give more power. It permits the granted power to be utilized. The Eighteenth Amendment could not enforce itself. Experience had taught that much legislation would be needed to carry out the grant, and Congress was authorized to legislate. But only to carry out, not to extend, the grant.

And while "appropriate legislation" is being read in the Eighteenth Amendment there must be kept under the eye the unqualified language of the Tenth Amendment forbidding any construction of any part of the Constitution in derogation of the sovereignty of the State where there is no plain grant in derogation of it. The reservation to the States of full power over medicine was just as distinct as the grant to the Nation of partial power over beverages.

Now, that being as plain as the language in a child's primer, why did Congress legislate with respect to a subject not committed by the Eighteenth Amendment to its charge?

"To what purpose are powers limited," asked the great Chief Justice Marshall, "and to what purpose is that limitation committed to writing [in the Constitution], if these limits may, at any time, be passed by those intended to be restrained?"

That all-subduing question is even more pertinent in this case than it was in the one (Marbury v. Madison, 1 Cranch, 137) in which Marshall framed it. To what purpose did the Eighteenth Amendment limit action by Congress to beverages if that limit might at pleasure be passed by Congress and the control of medicines be assumed? Marshall could not conceive the greatest of all non-sacred writings to be a scrap of paper.

But the Supreme Court thought the Act of Congress regulating physicians within the States "appropriate legislation" under Section 2 of the Eighteenth Amendment, which is as follows:

The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

"Appropriate legislation" by Congress has already been discussed. Finding the legislation "appropriate," the Supreme Court said:

When the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by some or all of the incidents which attend the exercise by a State of its police power.

That assumes that the United States was exerting a power which had been conferred upon it, the very point in dispute, and the one on which four justices dissented. Second, it assumes that a State may by its police power constitutionally substitute its crude judgment for the scientific opinion of a physician. Can it? The State may punish a physician for dealing in any way in liquors as beverages. But can it control his judgment as a physician? If it can, what does his Liberty mean? An act to compel all physicians to be good — in the way that legislators understand good — is cut from the same piece of power which was exerted by the Tudors and the Stuarts in the Conventicle Acts requiring people to worship in the way which the legislators had selected as best for them and the country.

The language of section 2 of the Eighteenth Amendment differs from that in any other. This is the only Amendment for the enforcement of which the Nation and the States have concurrent power. All other Amendments requiring "appropriate legislation" are enforcible by the Nation alone. But here the States did not surrender their police power to the Nation. Power was given to the Nation which it did not before possess, but the States did not abandon theirs. They retained the jurisdiction to legislate on the subject of liquor, for both beverage purposes and medicinal, which they had inherently possessed. The Amendment authorized Congress to cooperate with them in legislation for the control of beverages only.

In such circumstances what should have been the course of Congress, especially in view of the knowledge which it received from the committee which reported the bill for passage, that "most of the States have more stringent provisions than the one contained in section 2"? Should it have recommended that the few other States enact stringent laws, which they retained the power to do? Or should it have limited the operation of the Act to the few States which it deemed delinquent? Why, in reason, should it have assumed control in all the States when "most of the States have more stringent provisions"? The answer to these questions was given by Madison in the language before quoted, that this body has such an "enterprising ambition" that "the people ought to indulge all their jealousy and exhaust all their precautions" against its reach for Power.

The committee reporting the bill said that "this legislation will work no hardship upon the profession" of medicine because "most of the States have more stringent provisions." Neither would the tax on tea have been a hardship on the American colonists, but they resented that suggestion like true-born fighting men and stood for the principles of the British Constitution. Convenience is not the measure of constitutionality. What Congress should have considered was, not the comfort or discomfort of physicians, but the Tenth Amendment, preserving the States forever from National encroachment, and the first section of the Eighteenth Amendment, by which their police power over liquors for both beverage purposes and medicinal was explicitly left to them.


Eighteenth Amendment Superfluous

The least understandable aspect of this legislation, of other legislation of like sort, and of the Eighteenth Amendment itself, is that members of Congress should be so ready and active to strip their respective States of their constitutional prerogatives in disregard of the Tenth Amendment. For as a matter of fact and practical sense (leaving out for the moment constitutional principle) there was no need for the Eighteenth Amendment. During the five years preceding its taking effect twenty-four of the States — half of them — "went dry." In 1914 Arizona, Colorado, Oregon, Virginia, and Washington adopted prohibition, four by constitutional amendment and one (Virginia) by statute, and all by a referendum vote of the people. In the next year followed Alabama, Arkansas, Idaho, Iowa, and South Carolina, the last named by referendum and all by statute. In 1916 came Michigan, Montana, Nebraska, and South Dakota, all by constitutional amendment adopted by a referendum vote. In 1917, Indiana, New Hampshire, New Mexico, and Utah stopped the sale of intoxicating liquors, all by statute except New Mexico, which adopted a constitutional amendment by referendum. In 1918 Florida, Nevada, Ohio, Texas, and Wyoming followed, Nevada and Texas by statute, the others by constitutional amendment adopted by referendum. And in 1919, the year when the Eighteenth Amendment was proclaimed adopted, Kentucky amended by referendum its constitution.

Thus nationwide prohibition was coming as fast as the people were ready for it, and in something like the right way. That is, the part of our constitutional system possessing police power, and the part which has always been highly organized, from the remotest township up to the State capital, to perform police duty, was acting in accordance with the wishes of the people as fast as opinion developed.

But when the subject was by the Eighteenth Amendment committed to the Government which never was intended to have general police power (and which never should have received any), of course that Government was totally lacking in the police organization necessary to perform the task of enforcement. Not until it has covered the country with a second police force, to be supported by the taxpayers, can it successfully maintain the law. Nor can it ever hope to have a police organization as compact and complete as that of a State. Of course, in some States the local government may help to enforce the law, but generally where two have "concurrent power" to do a thing it is less well done than it would be if duty were not divided. Moreover, it is not the nature of a Federal bureau to refrain from pushing its power to the boundary and beyond. The Act of Congress under discussion respecting physicians is itself a capital illustration of the Federal tendency to reach for Power. This tendency, rapidly growing of recent years, will carry costly Federal organization even into the States which are best disposed toward prohibition. The taxpayer may look for the worst in the form of costs.[1]

[1] "A bureaucracy," says Bagehot in "The English Constitution," "is sure to think that its duty is to augment official power, official business, and official numbers, rather than to leave free the energies of mankind."

In addition to the activity of the States just described, there had been for many years a rapid growth of genuine temperance induced by the influence of great employers. In the service of the railway companies, the manufacturies and the commercial institutions, men had learned that only the strictly temperate could hold their positions and secure promotion. It is the testimony of men whose experience goes back thirty years or more that, entirely apart from prohibitory laws, the general condition brought about by the strict policy of employers was as different from the old order as white is from black. That was another solid reason why the hand of the national Government should have been withheld.

Moreover, the greatest changes for the better in the social order and even in the law come by evolution from forces which work unnoticed. The heavy and general drinking of former and coarser times disappeared without law or compulsion of any sort. In 1914, when the World War began, no man of place or standing could hold either and drink as men did twenty or thirty years before. The improved condition of the country generally, and of living conditions in particular, taken with the accumulation of means, ministered to higher tastes and led to better thinking than the bottle and the glass had served. It would be difficult to analyze all the forces that operated, but there can be no doubt that during the thirty years from 1884 to 1914 the change of mind toward drinking was profound indeed. Yet during that time, nearly a third of a century, only seven States (North Dakota, Georgia, Oklahoma, Mississippi, North Carolina, Tennessee and West Virginia) went dry. This illustrates that natural forces may accomplish more than restraint can bring about.

"Small changes wrought by officials," wrote Herbert Spencer, "are clearly conceived, but there is no conception of those vast changes which have been wrought through the daily process of things undirected by authority. And thus the notion that society is a manufacture, and not an evolution, vitiates political thinking at large."

At the time Congress proposed the Amendment nearly 88 per cent. of the total area of the United States was under prohibitory laws and 61 per cent. of the population, according to statistics of the Anti-Saloon League of Illinois. From the time the Amendment was proposed (1917) until it was adopted (1919) and before it became operative (1920) six other States were added to that 88 per cent. of area. The area of those six States was 14 per cent. of the area of all the States and the District of Columbia, and their population was 20 per cent. That would make the total dry area 102 per cent. The figures put out by the Anti-Saloon League, entitled "For Soldiers and Sailors," and intended to convince them that "prohibition was not 'put over' the men in service while they have been on duty overseas," were therefore much overdrawn. But the great fact remains that the country was going dry through State action and there was no practical sense in proposing the Eighteenth Amendment.

Congress proposed the Eighteenth Amendment eight months after our declaration of war against Germany (see table), at a time when 4,057,000 husbands, sons, and brothers were under mobilization for the army, and 583,763 for the navy, and when the mind and heart of the country were deeply intent on that unprecedented drama. The legislatures of the States went on ratifying the proposed Amendment while the eyes of all others were turned with solicitude and amazement to the 2,086,000 soldiers rising from the sea to the coasts of France "like the sword Excalibur," of whom 1,390,000 fought in the field, 50,510, the population of a large city, died in battle, 57,000 of disease, and of whom 236,000 were wounded. Of the navy 7,367 lives were lost. And after the Armistice, during the anxious months when all hands at home were extended to welcome the returning hosts, the State legislatures went on ratifying the proposed Amendment.


Showing what was occupying the minds of the American people during the time that Congress and the Legislatures of the States accomplished the most extreme departure from constitutional principle that has ever been brought to pass. The second column shows the number of men (2,084,000) trained, equipped, and transported to Europe. The third column shows their great record. The last column contains the record of the legislative bodies.

Selective Draft American Expeditionary Forces   Americans in Major Actions 18th Amendment
1917 Men 1917 200 days of battle 1917
September..... . 297,000 Men Dec. 19 Proposed
October....... 164,000 German
March Somme .............. 2,200
November .... 36,000 Men 1918 Lys .................. 500
December ..... 20,000 176,000 Aisne ................ 27,500
  to Chateau Thierry .....
1918 1918 Belleau Wood-Vaus ..
January ........ 23,000 Noyon, Montdidier ... 27,500
February ....... 84,000 225,000 July Champagne-Meuse ... 85,000
March ......... 132,000 253,000
April ........... 174,000 320,000 Allied
Aisne-Marne ......... 270,000
May ........... 373,000 424,000 Somme .............. 54,000
June ........... 302,000 722,000 to Oisne-Aisne .......... 85,000
July ........... 401,000 996,000 Ypres-Lys ............ 108,000
August ......... 283,000 1,293.000 St. Mihiel ........... 550,000
September ..... 263.000 1,576,000 Nov. Meuse-Argonne ....... 1,200,000
October ........ 249,000 1,843,000
November ...... 9,000 1,971,000
December ...... 1,944,000
Total draft 2,810,000 Nov. 11 Armistice
20 U. S. Army in Lorraine
22 U. S. Army in Rhenish Prussia
Dec. 6 U. S. Army in Mayence
Totals 1919
2,084,000 men (42 Divisions)
1,390,000 men (29 Divisions) in battle Jan. 17 Ratified

In such circumstances the most radical of departures from our constitutional philosophy could not have received from the people or their representatives in Congress and in the State legislatures the attention which it deserved. Indeed the people, the best of whom were in the uniforms of the army and navy, occupied in the greatest trial that had ever come to them and to the world, could have had but little if any conception of what the legislative bodies were about.

The voters who did not go to the war might have had an opportunity to hear the subject publicly discussed and thereby to have informed themselves had Congress referred the Amendment for ratification by "conventions in three-fourths" of the States, as the Constitution authorizes it to do, instead of referring it to "the legislatures" of the several states, which had been elected over a year before the proposal was brought forward in Congress. A reference to conventions in the States would have required the selection by the remaining people in each State of delegates to those conventions for the sole purpose of acting on this question. But the legislators in each State who passed on the proposal had been elected by the people on the issues of the Presidential campaign of 1916, the majority of whom voted for the candidate who had "kept us out of war." War, and war only, was in the minds of the voters then. The legislators so elected should not have ratified the Amendment. Nor should Congress have submitted it to them. Of course, so many voters were away that even such a reference to conventions in the States would not have fairly found the will of the people; but the reference to the legislatures which Congress made in the exercise of a choice given to it by the amending Article (V) was in every way unfair. Government should deal with the Rights and Liberties of men seriously and with candor. The greatest constitutional subject that could arise was handled like a coup d'etat of Napoleon the Little.

That the founders of our Republic knew that legislative bodies are prone to such misuse of power has been shown by quotations near the beginning of this chapter. A fit summation of the foregoing history of the Amendment was written as if in anticipation thirteen years ago (1915) by one of the foremost authorities on government and law. In Burgess' "The Reconciliation of Government with Liberty" the author, discussing the unsuccessful attempts of constitution-makers in Europe to fix a balance between the rights of the Man and the powers of Government, says (p. 250):

But they discovered no constitutional way for protecting Individual Liberty against the possible tyranny of the Legislature. Men seemed to think, notwithstanding the experiences of the French Convent of 1793, that, as the Legislature represented the people, it would protect the Individual against oppression from any and every quarter. But this is found to be true only where the suffrage is limited to men of intelligence, character and means, and eligibility to a seat in the legislative body is conditioned upon the same qualities. Where universal suffrage is the source of legislative mandate the legislative majority is a far more consummate despot than any King or Prince has ever shown himself to be. Against such a Legislature the Individual is in the most helpless condition possible. It has rarely any sense of justice and is almost never influenced by considerations of mercy. It readily becomes the instrument through which brute force tyrannizes over intelligence and thrift, and seeks to bring society to an artificial dead level. Until a political system shall have provided the means for protecting the Individual in his constitutional immunities against this most ruthless organ of Government, it will not have solved our great problem.

That is, the great problem of setting up a governmental mechanism which will prevent the State legislatures and the national Congress, which Burgess correctly calls the most ruthless organs of Government, from diminishing or destroying the "unalienable Rights" with which men "are endowed by their Creator," as the Declaration of Independence states it, as well as their numerous constitutional rights, and which will also prevent the Liberty of the Man from degenerating into that license and disregard for just legal restraint by which governments have been destroyed.


Doubt Should Favor Tenth Amendment

In view of the facts (1) that the dishonest use of prescriptions by physicians was, comparatively, a trifling matter; (2) that "most of the States had more stringent provisions" for preventing or punishing such abuses than the Act of Congress would be; (3) that the Amendment and the legislation of Congress to carry it out were made law when the man-power and most of the woman-power of the Nation were occupied with war, of which courts take judicial notice (consider without proof of the fact); (4) that the Amendment and the Acts of Congress following it constituted the widest departure from constitutional government that had ever been taken; and (5) that, as is to be shown later, it was a grave question whether the Eighteenth Amendment was constitutionally proposed by Congress — in view of such considerations it would seem that the very serious doubt on the subject which the Supreme Court disclosed should have been resolved in the spirit of the Tenth Amendment for the protection of the States and the Man against the encroachment of national Power.

Of course, as the Supreme Court has said and repeated many times (154 U. S., 473), "the test of the power of Congress is not the judgment of the courts that particular means are not the best that could have been employed to effect the end contemplated by the Legislative Department: the Judiciary can only inquire whether the means devised in the execution of a power granted are forbidden by the Constitution." But this was not a question of policy, which it is for Congress alone to determine, and with which the Supreme Court never deals, notwithstanding much teaching to the contrary by the ignorant and the vicious.

Could Congress, with specific power given to it by the Amendment to deal only with liquors "for beverage purposes," and notwithstanding that "most of the States" had already legislated respecting liquors for medicinal purposes even more stringently than it intended to do, spread its control over liquor for medicinal uses throughout the Nation and over the Liberty of honorable physicians, and assume management in every State where a forbidden prescription might be issued?

That is a constitutional question, with which the Supreme Court alone had power to deal, and not a question of a policy of Congress, which the courts properly refuse to entertain.

And because the Supreme Court showed the gravest doubt as to the power of Congress under the Constitution to legislate, it should have resolved that doubt in favor of the States in the spirit of the Tenth Amendment, which, being a limitation in Power, should be liberally construed to give it effect, which was called for by many of the States when they ratified the Constitution, which they received the tacit promise that they would have for their protection forever, which the first Congress under the Constitution promptly proposed in accordance with such requests along with other amendments, all making a Bill of Rights against the spread or misuse of national power, and which was ratified by the States within eight months and twenty days, the shortest time that any proposal to amend has pended.

The States should have had the benefit of the doubt because it is as much the duty of the Judicial Department to interpret the Constitution for the preservation of their rights as it is to maintain the claims of the Nation or to show deference to Congress.[1] In a great case arising out of the Civil War (Texas v. White, 7 Wall. 700, 725) this language was used by the Supreme Court:

The preservation of the rights of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.


[1] If a Bill of Rights comprehends prerogatives indestructible by Government because not springing from it, as has been seen to be the case, then the Tenth Amendment, the last word in the Bill of Rights, could not be depreciated by the Eighteenth Amendment. It is true that Bill of Rights connotes the rights of the individual, whereas the Tenth Amendment was written to protect forever the sovereignty in local affairs which the State brought with it into the Union when it entered under the Constitution. But the protection of the State has for part at least of its design the saving of the Liberty of the Man: his Liberty, as the operation of the Eighteenth Amendment illustrates, is linked with that of his State. Therefore, in strict constitutional law, the Eighteenth Amendment could not lessen the Liberty of the Man by a transfer of his local or police power to the Nation. The Nation holds that police power as King John held what he gave back by Magna Charta (because it took it), as Charles I held what he restored to the people by the Petition of Right, as James II held what in the Bill of Rights William and Mary agreed never to exercise. To the probable answer that action was taken by the method prescribed by the people in their Constitution, and must therefore be constitutional, the reply is that the people proclaimed before the Constitution, in the Declaration of Independence, that Liberty is "unalienable." The Constitution was written in the light of that. It was not intended that in America the largest majority, or even the General Will, could force men to be free. Can people or States secede from the Tenth Amendment? No one would concede that they could take away the Liberties protected by the First Amendment. If the First article of the Bill of Rights is unassailable, why not the Tenth?

The contention that the Eighteenth Amendment was no more a disregard of the rights of the State than the Thirteenth had been is answered by the fact that slavery was not an attribute of State sovereignty. Had it been, it would have prevailed in all the States instead of in a few. In freeing the slave the Thirteenth Amendment operated, not to diminish the State sovereignty safeguarded by the Tenth Amendment, but to destroy private property.


Of course, all doubts should always be resolved in favor of the Liberty of the Man and against the extension of Power.

The language of section 2 of the Eighteenth Amendment regarding "concurrent power" of State and Nation "to enforce this article by appropriate legislation" would indicate to the common mind that the Nation would operate in its natural sphere and in the States not committed to prohibition, while States with "many stringent provisions" in their laws would be left to the work which they had themselves begun. Thus the Nation would guard the coasts against importations and exportations, and would probably employ its experience and organization in regulating commerce to deal with the "transportation" of beverages which is made unlawful by the first section of the Amendment. While the Commerce Clause of the Constitution gives Congress jurisdiction to regulate both foreign and domestic commerce, it had no power to stop it. The Eighteenth Amendment gave it power to stop commerce in intoxicating liquors, but only the commerce in liquors "for beverage purposes." Congress is still powerless to stop shipments for medicinal purposes. It is still powerless to stop constitutionally such shipments as may be necessary to meet the requirements of the competent man who is not a subject for police-power control.

"The Constitution found it [commerce] an existing right," said Chief Justice Marshall in 1824 (Gibbons v. Ogden, 9 Wheaton, 1, 211), "and it gave to Congress the power to regulate it." The citizen's rights in commerce do not come from the Constitution. They existed before the Constitution was written, and, as Chief Justice Marshall pointed out, the Constitution recognizes that fact. If the right of the Man to trade is above the Constitution, and if the Constitution empowers Congress only to "regulate commerce," by no line of sound reasoning can the conclusion be reached that Congress can stop commerce. Yet, as will more fully appear, it has done so, and the Supreme Court has sustained its action.

Any law that leaves man's Liberty out of calculation, whether local option, "bone-dry" State legislation, or national prohibition, is violative of his natural right "against any government on earth," as Jefferson so well put it. This constitutional principle has been disregarded generally, though not always, from the earliest local-option law; but as the competent user could supply his need in the next county, he accepted the situation without contest. When local option was extended to State-wide prohibition he supplied his requirements from the nearest State.

Thus non-resistance, non-discussion, and general constitutional illiteracy developed the idea that no man exists who has remaining any claim on Liberty when the majority, or the self-styled majority, conclude that he should give it up.

So rapidly does power grow by what it feeds on that the State is being pushed out of the Union as a self-governing entity. And what is unbelievable even to those who see it is that this unbalancing of constitutional relations, this betrayal of the necessary and just sovereignty of the States, has been conceived, promoted and pressed, in season and out, by members of Congress elected by the people of the respective States. Why a Senator or a Representative should want to break his State is inconceivable. It is probable that the cause of this obliquity is the failure of schools, colleges, and universities to educate youth in the constitutional philosophy of the United States, and (as a corollary) the incompetence of the press to inform, advise, and guide the people in these matters as they go along. Indeed, some of the press has joined in the calls for palpably unconstitutional innovations which it was assumed that the people wanted and about which neither press nor people were educated to have a judgment.

If some American educators were to take as much interest in the study of our tried and successful form of Government as they do in the wholly theoretical notions of European peoples who are entirely without experience, it would bring good to both the educators and the youth of the United States. In June, 1928, for one example out of many, a party of over thirty instructors in our colleges and universities went to Russia to philosophize over conditions there instead of taking summer tutelage at home in the constitutional government of their country and, it might well be, in the history and uses of the Monroe Doctrine. A cablegram from Leningrad on their arrival said that the delegation was "the most imposing to reach Russia in many years." It contained, however, the promising statement that the delegates were "disappointed at the desolate appearance of Leningrad" and at "the empty streets." Why should a people with 300 years of experience in self-government, whose form is now the model of the leading nations of the world, seek to better conditions at home (which is of course always desirable and possible) through the study of a race who never achieved either intelligence in government or sufficiency in food? As the Herr Professor, who is too often blind to the obvious, made a wreck of Europe, he should be watched in the United States. He took his biological "struggle for existence" and "survival of the fittest" (both conjectures) and applied them to the discussion of nations, presenting to European youth the baseless conclusion that warfare is the natural activity of peoples and that the progress of mankind proceeds from bloodshed and destruction. He trained the last two generations in Europe, from Russia across to England, in the false belief that war "gives a biologically just decision" and that from this struggle for existence "only the fittest survive." A just decision cannot, of course, always, if ever, proceed from the fortuitous circumstances of battle. And it is the unfittest who survive war. For our Selective Draft Act of May 18, 1917, called out men between the ages of 21 and 30, the pick of the country's life and hope. The 115,000 who lost their lives in battle and from disease, and the large number who were incapacitated for life, left the Nation distinctly weaker than it was. For, as a historian of the Civil War said of the deaths in that conflict, immeasurably greater than the loss reckoned in numbers will be the continued damage to the Republic because the heroic blood of those young unmarried men is never to flow in other veins. Because it is perfectly obvious that constantly killing off the youth will leave only the infirm and the adolescent, the Herr Professor could not see it. It proves nothing against his theory of the survival of the fittest that the wars of Louis XIV so damaged the Frenchman that his successor was obliged to reduce to 5 feet the stature of the acceptable soldier, and that Napoleon made three reductions after that — nothing that women outnumber men throughout Europe, by 1,700,000 in England alone, 500,000 of which number were added by the World War. In the face of facts the Herr Professor taught young Europe that war is elevating, that, as Bouvier, for example, wrote of Napoleon's campaign in Italy, "All the inferior elements had disappeared as a result of death or desertion, and what was left was the physical and intellectual flower." Could irrationality go further?

But Russia must be credited with judgment in putting this provision in the Constitution of the Socialist Federated Soviet Republic of July 10, 1918:

The Fifth Congress instructs the People's Commissariat of Education to introduce in all schools and educational institutions of the Russian Republic the study and explanation of the basic principles of this Constitution.

However, about forty of our States have laws requiring the teaching in the schools of the Constitution of our country; but, as elsewhere mentioned, these laws are generally indifferently observed where not altogether disregarded.

When the people of New York, led by Governor Clinton, were overwhelmingly against the ratification of the Constitution, James Madison of Virginia and Alexander Hamilton and John Jay of New York wrote for publication in that State a series of eighty-five articles, now known in book form as "The Federalist," which so clearly expounded the principles of the proposed Government and stated the need of it that it was ratified by a hostile convention. The people were readers then. In the prodigal expenditure of money by the press to-day (in many ways not properly related to journalism) no thought or cash is given to employing men thus capable of leading and teaching a great people so that they may preserve and pass on their incomparable inheritance of Government and the Liberty it brought. The great newspapers of the United States which show competence to discuss questions of constitutional Government, day by day, and thereby provide sure guidance for the people, can be counted on the fingers of one hand.

It should be mentioned that during the last five years a number of the leading journals of the country, aware of the lamentable lack of constitutional education, have been carrying on in the high schools of the land oratorical contests on constitutional themes, and have thereby aroused great interest in the subject of Government. In 1928 fifty-three newspapers are back of this undertaking. It was expected that one million boys and girls in the high schools would prepare and deliver orations on some constitutional matter. The contests have been a great public service.

Had the schools been performing during the last fifty years the function for which they were established, the Tenth Amendment and some other provisions of the Constitution would not have suffered so much violence.

Mugler v. Kansas Critically Reviewed

The decision of the Supreme Court upholding the Act of Congress for the personal supervision of physicians in the States is the climax of a series of badly reasoned cases on this theme beginning in 1887 with Mugler v. Kansas, 123 U. S., 623.

A thorough analysis of the decisions upon which the opinion in the Mugler case was based will be made for the purpose of demonstrating that that decision was wholly unsupported by authority.

It was in this case, the first containing the question in all its magnitude, that the Supreme Court should have laid down, for the correction of the State's action under review, and more particularly for guidance in future legislation, the line at which the police power stops when Liberty is involved. But the failure of the Judicial Department at this critical juncture gave to legislators and propagandists the understanding that in this field there is no such thing as Liberty.[1] As a perfectly logical consequence each succeeding act of legislation has been more radical than the one before, the lower courts have been constrained, regardless of their own views to the contrary, to support it on the authority of the Mugler case, and the Supreme Court itself, as if dazed by the onrush, has yielded approval latterly to man-hunting laws.

[1] The astonishing fact will become clear as the decisions are reviewed that they are bare of definition. In authorities on Logic, and in great controversies of earlier times, definition of terms appears as a prerequisite to argument. Yet in forty years of litigation over liquor laws no definition of Liberty, protected in the Fifth Amendment against national aggression and in the Fourteenth against incursion by the States, has been enunciated by the Supreme Court of State or Nation. Definition of Police Power never has been attempted beyond the requirements of the case on hearing. The police power has been repeatedly challenged by litigants, and Liberty has been repeatedly invoked.

"All artful rulers who strive to extend their power beyond its just limits," wrote John Dickinson, one of the framers of the Constitution, "endeavor to give their attempts as much semblance of legality as possible. Those who succeed them may venture to go a little further; for each new encroachment will be strengthened by a former."

Answering Burke's discussion of the French idea of the General Will, which Rousseau said could force men to be free, Thomas Paine, a patriot of the American Revolution and a private in the army at Trenton, said this:

The meaning, then, good people, of all this is: That government is governed by no principle whatever; that it can make evil good, or good evil, just as it pleases. In short, that government is arbitrary power.

True, the Supreme Court said in the Mugler case, speaking of the range of the police power of the State:

It does not follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the State. There are, of necessity, limits beyond which legislation cannot rightfully go. While every possible presumption is to be indulged in favor of the validity of the Statute, the courts must obey the Constitution rather than the law-making department of government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed.

But neither has ever been defined. In the course of the decisions Liberty, as explained by authorities in the preceding chapter of this book, has been completely wiped away.

It will be seen that in practice that sound statement of constitutional law, indicated by italics, has become a meaningless generality.

Having thus declared accurately that the police power of the legislature is amenable to "the supreme Law of the Land," and that the Judicial Department must maintain the Constitution against action by the Legislative Department, the Supreme Court then made this wholly irreconcilable pronouncement:

We cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety may be endangered by the general use of intoxicating drinks; nor the fact, established by statistics accessible to every one, that the idleness, disorder, pauperism and crime existing in the country are, in some degree at least, traceable to this evil. If, therefore, a State declares the absolute prohibition of the manufacture and sale, within her limits, of intoxicating liquors for other than medical, scientific and manufacturing purposes to be necessary to the peace and security of society, the courts cannot, without usurping legislative functions, override the will of the people as thus expressed by their chosen representatives.

Thus in the first case to reach the Supreme Court of the United States requiring a definition of the Liberty of the Man under the Fourteenth Amendment and of the extent of the police power of the State where Liberty is involved, there was begun a confusion of thinking on constitutional principles which led to the Eighteenth Amendment and to the total wiping away before that Amendment of the Liberty of the competent citizen who never had patronized the saloon, who never had used liquor to excess, who never had done society any wrong, and who was therefore no more subject to the police power of a State than is a citizen of Australia. The foregoing quotation from the decision in the Mugler case says (1) that not every statute "enacted ostensibly" for the general good can be accepted because there are limits "beyond which legislation cannot rightfully go" (without defining those limits); and (2) that when a State declares that absolute prohibition (denying Liberty to those who have not forfeited it as well as to those who have) is necessary to the peace and security of society, that conclusion is final and the courts cannot question it. Those two propositions are wholly irreconcilable. In the Mugler case there should have been laid down once for all the doctrine of Revolutionary times which was written into the Constitution and which had been so clearly stated by Thomas Paine, namely, that Government has to do with right "imperfect in power in the individual" (as in the inebriate), but that it cannot "invade the natural rights which are retained in the individual and in whom the power to execute is as perfect as the right itself." This man needs no help from Government, and it cannot constitutionally be forced upon him.

The Supreme Court says that we cannot shut our eyes to the fact that the public health, morals and safety "may be endangered by the general use of intoxicating drinks." That is, it has not been endangered, but may be. Should the court have dealt with a possibility? What did it mean by "general use"? Was it the general existence of public drinking places from which no adult was excluded? General means not partial, that is, that practically all the people were drinking, a condition which never existed in the United States. If "general use" meant the use and practice which then prevailed and which were to be operated upon by the new provision of the Constitution of Kansas (and it must be assumed, in the absence of definition, that the Court was addressing its language to existing conditions), then why did not the closing of the all-pervading public drinking place mark the limit of the police power of the State to protect the health, morals and general well-being? That (with perhaps restriction on the sale to known incompetents) was all that Government could constitutionally do. When it touched the citizen to whom the moderate use of wines or spirits was no more than the use of tea or coffee, then it got out of the province of Government and invaded those natural rights which cannot pass out of the individual because, as Thomas Paine said, in him "the power to execute is as perfect as the right itself."

Again, what did the Supreme Court mean by "the absolute prohibition of the manufacture and sale within her limits" except for medical, scientific and manufacturing purposes? Does that recognize the right of the temperate user, who never became a police-law subject and cannot constitutionally be made one, to send to another State for his beverage? And if each of the States should establish what the Supreme Court called (without defining) "absolute prohibition," could he procure his beverage from a foreign country? Possibly his Liberty might be regulated to that extent — but could it be altogether destroyed? The conditions prevailing after eight years of the Eighteenth Amendment seem to say that he will not permit it to be destroyed by "any government on earth."

Had the Supreme Court in that first case laid down definitions which would carry answers to the foregoing questions, the present state of confusion and lawlessness could not have come to pass. The States would have prepared to respect in their legislation the unalienable and constitutional Liberty of the Man. Instead of that, the Judicial Department of the Government has permitted, case by case, the extinguishment of that Liberty.

When society abolished the saloon and closed other public drinking places, and made liquor so difficult to procure, and expensive, that the former patrons of the bar began supporting the manufacturers of low-priced automobiles, that was about all that the unfortunate drinker was entitled to. He had received all this from the States that acted before the Eighteenth Amendment. While most of the State laws were unconstitutional in their disregard of the Liberty of the competent man, he was able to supply his requirements elsewhere.

It may be that the world would be nicer if no man or woman would ever take a drink of liquor, or smoke a pipe, a cigar, or a cigarette. But that is no concern of Government. Until the conduct of the individual has become a danger to himself or hurtful to social or civil order he is beyond the reach of the police power. In the meanwhile his Liberty under the Constitution permits him to satisfy his tastes, of course under such regulation (not prohibition) as the welfare of others may require. Having stated in the paragraph last quoted that it is "the general use of intoxicating drinks" that is the evil, the Supreme Court lost logical connection and declared in the next sentence that all drinking may be ended by "absolute prohibition." The change of objective was thus authorized from protecting the weak to pursuing the strong. In the late cases to be examined, Government, it will be seen, is less concerned with keeping down "the general use of intoxicating drinks" among the people who supported the old saloon than with pursuing men whose conduct, so far as the record shows, would not be detrimental to society. The purpose seems to be to make the competent man change his thought and conduct — to make him a better man. That is not compatible with Liberty.

"The sole end for which mankind are warranted, individually or collectively," wrote John Stuart Mill, "in interfering with the liberty of action of any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that the conduct from which it is desired to deter him must be calculated to produce evil to some one else."[1]

[1] "On Liberty": Introduction.

What evil is done to some one else when a temperate and competent man uses spirits or wine as a beverage?

Of course the claim is that the competent man must be policed in order to make prohibition a success. The success of prohibition is not a constitutional aim. But is it true that prohibition cannot be otherwise a success — is it an honest finding of fact? That is a judicial question. And if it were true, can Government take his Liberty in the interest of others? It is well recognized that Liberty is not absolute so far as the use of it is concerned. But the possession of it is. The citizen must use his premises and other property and so conduct himself personally as to do no harm to others, and the police power can enforce this duty. Beyond that it cannot go for any purpose, however laudable the aim. The Fourteenth Amendment guarantees to him protection to Life, Liberty, and Property against action by the States. His Life cannot be taken until he has wronged society, nor can his Liberty be taken through imprisonment or otherwise before offense done, nor can his property be confiscated by the State, no matter how very much society may need it for a far higher purpose than any to which he can put it. His right is absolute, but his use is relative to the just needs of society. But in no circumstances can regulation, as Chief Justice Shaw of Massachusetts put it long ago, destroy the right.

This great question, which should have been made in the Mugler case as clear as the Declaration of Independence for the guidance of all, was darkened, as the extracts from the decision show. The only thing left undoubted was that absolute prohibition would not be questioned by the courts when a State should declare it necessary. That is, in this field no man has Liberty of which he may not be deprived.

Had the attention of the States then been arrested, and had their understanding been enlightened by a positive exposition of constitutional principle, they would have used their ingenuity to work out a successful means of permitting the competent man to obtain his beverage, in a legal and orderly way instead of by the violent methods by which the world is astonished. For, notwithstanding the epithet of "smugglers" which the British applied to John Hancock and other Revolutionists (and which some so-called American historians still employ), they trampled on the unconstitutional acts of Parliament, precisely as "scofflaws," some of them the best Americans, resent the unconstitutional attempt at "absolute prohibition." The spirit of English-speaking men does not change. Although very patient, because instinctively law-abiding, they never have been lacking in the resoluteness to drive back their straying Government into its proper constitutional place.

Each State, working with its own efficient police organization, could have more nearly solved the problem (which will always be a problem) than the national Government has been able to do with State aid during eight years of effort. But it is not properly a question of the most successful way: it is of the most constitutional, and therefore the least dangerous, way. When the States have done their best for the general welfare that is all that should be expected, although it may not be fully satisfactory to some. The practical-minded do not expect perfection.

In the letter sent by the Constitutional Convention to Congress, transmitting the new Constitution, signed by George Washington, it was pointed out that it was not expected that "it will meet the full and entire approbation of every State," but that each State in the Convention had yielded ideas to what seemed to be "the greatest interest of every true American, the consolidation of our Union." Had each State or section clung to its own judgment there would have been no Constitution. The best that can be had in reason is the best. The prohibition of public sales and public use of liquor and the rigid supervision of special sales to the competent who want it should be enough. That is as far as Liberty permits the police power to go. No greater evil could exist than submission to Liberty wronged.

Counsel for Mugler made the point that as the law went beyond necessity and reason, a deprivation of Liberty resulted as well as a confiscation of property. But the Court ignored altogether the philosophy of the "unalienable Rights" stated in the Declaration of Independence, for the protection of which our constitutional system was "instituted among Men." The court was manifestly of the opinion, notwithstanding its observation that there are "limits beyond which legislation cannot rightfully go," that, in this field at least, there is no constitutional or legal limitation on the power of the State over the Liberty of any man (p. 661):

It is difficult to perceive any ground for the Judiciary to declare that the prohibition by Kansas of the manufacture or sale, within her limits, of intoxicating liquors for general use there as a beverage, is not fairly adapted to the end of protecting the community against the evils which confessedly result from the excessive use of ardent spirits.

The language quoted from the opinion confuses those who use liquors to excess (to the detriment of themselves, their families, the taxpayers, and society in general) with those who do not. The latter class the State cannot constitutionally touch. The latter class it may inconvenience some (or considerably) by legislation for the protection of the former class, which the State should protect; but the police power can constitutionally lay hold of the former class only. The man who can use liquor as a beverage without injury to himself, his family, or society, is, according to American governmental philosophy, absolutely immune to interference by either the State or the Nation, or by both together. The manufacture for and the sale to him cannot be constitutionally prevented.

Until by his conduct he has affected himself or his family or society injuriously he is as far away from the reach of the police power as if he were on another planet.

This English and American idea the court did not discuss, as the loose language of the quotations shows. This man's being entitled, as Jefferson said, to a Bill of Rights "against any government on earth," was not considered in the case.

Of course, the main thought then was for extinction of the iniquitous saloon, of which all right-minded were desirous. It was the purpose to remove, for the sake of the unfortunate and of youth, and for the general cleanness of the community, its seductions and entrapments. Its nefarious influence in the governments of cities and States had brought a feeling of revulsion to the people. Hence the prohibitory law to extirpate it.[1]

[1] The liquor interests had systematically "saturated" cities, setting up a saloon on every area that might possibly support one, and infesting with saloons the localities populated by workers for daily wages. Thus, in 1906 New York City had 7,300 licensed saloons, but only 5,200 places were groceries could be purchased. The saloon was the rendezvous and shelter of the criminal classes. That national and local governments should derive great revenue from such an establishment was not in accordance with the best opinion; but it was a practical application of Napoleon's idea, that vice is a better supporter of Government than virtue.

The law governing the exertion of the police power by a State is given as follows by late authority (6 Ruling Case Law, 226-8), the text being supported by the decisions of the Supreme Courts of States:

A statute to be within this power must be reasonable in its operation upon the persons whom it affects, and not unduly oppressive. The validity of a police regulation therefore primarily depends on whether under all the existing circumstances the regulation is reasonable or arbitrary and whether it is really designed to accomplish a purpose properly falling within the scope of the police power....

One application of the familiar rule that the validity of an act is to be determined by its practical operation and effect and not by its title or declared purpose is that a constitutional right cannot be abridged by legislation under the guise of police regulation; since the legislature has no power, under the guise of police regulations, to invade arbitrarily the personal rights and personal liberty of the individual citizen....

It has been said that the scope of the term "reasonable" as regards any situation must be measured having regard to the fundamental principles of human liberty as understood at the time of the formation of the Constitution, adapting the same to modern conditions; and the measure of the reasonableness of a police regulation is not necessarily what is best, but what is fairly appropriate to the purpose under all the circumstances, and whether it is a bona fide exercise of the reasonable discretion of the legislative department of government.

Merely because "a State deems the absolute prohibition" necessary, that does not make it so, especially as it is common knowledge that the larger number of the people never used liquor to excess. A State cannot make and constitutionally maintain a finding of fact which, in common knowledge, is false. The judiciary would not be "usurping legislative functions," as the court said, in holding that a false finding of fact by a legislature cannot avail to give its police power a grip on a man over whom it has no constitutional authority when he never used liquor to the damage of himself, his family, or society. Every day courts set aside findings by juries when made in disregard of the evidence, or in prejudice or passion. A temperate man is not subject to absolute prohibition under the police power of the State, and the declaration of the legislature that he should be does not alter the constitutional fact. Omnipotent as a legislature may feel itself to be, its fiat is not enough to put a temperate man in the class of the inebriate and thereby enable it to treat him as one and to forbid that he even possess liquor in his home.

Had the Supreme Court of Kansas or the Supreme Court of the United States laid down that doctrine, as it should have been declared, much of the arbitrary legislation and unconstitutional meddling that has since taken place would not have come to pass. Indeed, the arbitrary legislation and unconstitutional meddling were really brought to pass by the repeated statements, substantially, in judicial opinions that there was nothing to stop them.

The text-matter just previously quoted resorts to "the fundamental principles of human Liberty as understood at the time of the formation of the Constitution, adapting the same to modern conditions."

That is where the first chapter in this book begins. That is the place to take a stand in the study of constitutional and common-law Liberty. That is the datum post from which alone any accurate survey of the power of Government in the United States can be made. The person or the court who leaves that point will soon be lost.

The text quoted says that a police regulation must not be "unduly oppressive." What could be more so than laws making it a crime for a competent American to possess liquor, or punishing him for "transporting" in "commerce" the flask in his valise? Not even the laws that drove the Pilgrims to Holland, William Penn to America, or those which sent Roger Williams to Rhode Island, are comparable for arbitrariness and oppressiveness to the latest expressions of the American regulator's thought.

The text quoted says that "a constitutional right cannot be abridged by legislation under the guise of police regulation." But the language of the Supreme Court of the United States in the Mugler case indicates the belief that the judgment of the State is final and not reviewable by the courts. That is, what the State declares to be "necessary" must be taken as necessary regardless of the truth of the declaration; for, as the Court said, it had "nothing to do with the mere policy of legislation." Can policy of the Legislative Department destroy the constitutional Liberty of the Man?

In support of the ideas expressed in the foregoing quotations the Supreme Court cited, without comment, three of its earlier decisions, which are to be hereinafter reviewed to show that they had no bearing whatever on the principle announced in the Mugler case. They were first used as authority, without comment or analysis, by the Supreme Court of Kansas in the Mugler case, and the Supreme Court of the United States, in affirming that decision, seems to have accepted the citations at the indicated value. Those decisions (Prohibition Cases, 1847, 5 Howard, 504; Bartemeyer v. Iowa, 1873, 18 Wallace, 129; and Beer Co. v. Massachusetts, 1877, 97 U. S. 25) will presently be analyzed in connection with the decision in Kansas to prove that they do not support it, and also that they are entirely lacking as authority for the decision of the Supreme Court of the United States in the final disposition of the Mugler case upholding absolute prohibition in total disregard of the rights of those capable of using liquor temperately.

While the pronouncement of the State in every matter is, as the Supreme Court of the United States said, entitled to respect, even more so is the "unalienable" Liberty of the Man, which is protected against State action by the Fourteenth Amendment. That Amendment, being a limitation on Power, must be liberally construed to make it effective. When a legislative policy comes in conflict with Liberty the policy of the State must yield. The police power has limits, the Supreme Court has said (Eubank v. Richmond, 226 U. S., 137), and it must stop when it encounters the Constitution. Government is to protect the Man in his rights, not to strip him of them. On this subject James Wilson of Pennsylvania, the foremost lawyer in the Constitutional Convention, should be authority. His argument in the convention of Pennsylvania secured the ratification of the Constitution by his State. He was appointed by President Washington a justice of the Supreme Court of the United States, where he served with great distinction. On the purpose of Government he used this language (2 Wilson's Works, 296):

What was the primary and the principal object in the institution of government? Was it — I speak of the primary and principal object — was it to acquire new rights by a human establishment? Or was it, by a human establishment, to acquire a new security for the possession or the recovery of those rights to the enjoyment or acquisition of which we were previously entitled by the immediate gift, or by the unerring law, of our all-wise and all-beneficient Creator?

To that philosophy of the inherent and "unalienable Rights" of man the Supreme Court gave not the slightest practical regard from the beginning of the Mugler case in 1883 down to the decision that the Nation may regulate the practice of physicians in the States, except that it cited (without quoting) an earlier decision which said that there are "general principles supposed to limit all legislative power." But those principles never have been expounded and never have been applied in these prohibitory cases. Not one act of legislation has been held invalid.

It said in the Mugler case that "there are, of necessity, limits beyond which legislatures cannot rightfully go." Where are they? No answer has been given. And in practice the Supreme Court has wiped the theory away. All the way down the Court has thus kept the word of promise to the ear but broken it to the hope. As late as the Prohibition Cases (1920), sustaining the Eighteenth Amendment and the Volstead law (253 U. S., 350), the Supreme Court repeated in substance the empty formula of Liberty which it had employed in the Mugler case thirty-three years before:

While recognizing that there are limits beyond which Congress cannot go in treating beverages as within its power of enforcement, we think those limits are not transcended by the provision of the Volstead Act wherein liquors containing as much as one-half of one per cent of alcohol by volume and fit for use for beverage purposes are treated as within that power.

If in fact "there are limits" to legislative power — that is to say, if Man has invulnerable rights, it is as much a deprivation to dilute them as it is to destroy them. If the competent man had a right to use the commonly accepted liquors for beverage purposes because in doing so he was working no harm to himself or to society, then the right was untouchable by government in the way of either partial or complete deprivation. The use of the right might be regulated for the general good — he could, for example, be denied saloons and other public drinking places — but the right to use the beverage is absolute "against any government on earth." Neither the beverage nor the right can be diluted.

In view of the fact that two years and a half before the decision in the Prohibition cases — before the taking effect of the Eighteenth Amendment — the Supreme Court had held (1917) the mere possession of liquor illegal, what could the statement, just before quoted, possibly mean, "that there are limits beyond which Congress cannot go in treating beverages as within the power of enforcement"? It was meaningless. The Chief Justice objected to the opinion because it was a statement of conclusions instead of a discussion of constitutional principles, but it was no more lacking in that respect, as will be shown, than had been each of the preceding decisions, beginning with that in the Mugler case.


"The Rule of Reason" in Kansas

In 1883 the Supreme Court of Kansas decided State v. Mugler (29 Kans., 252), which involved the constitutional amendment of November 2, 1880, and the act of the Legislature of Kansas of May 1, 1881, giving effect to the amendment. While the amendment forbade "the manufacture and sale of intoxicating liquors ... except for medicinal, scientific, and mechanical purposes," the act of the Legislature declared any place to be a common nuisance where liquors should be "kept for sale, barter, or delivery." Upon a finding of a nuisance by a court the sheriff was required to close the place not only, but also to destroy all liquors, signs, screens, bars, bottles, glasses, "and other property used in keeping and maintaining said nuisance."

Thus the legislative body, with the propensity to power of which Madison and Jefferson had written a century before, promptly went beyond the scope of the constitutional amendment and began destroying property.

Upon conviction of violating the law the offender was to be punished by a fine of not less than $100 nor more than $500 and imprisonment in the county jail for not less than thirty days nor more than ninety. In a suit in the name of the State a perpetual injunction would issue against all connected with the place.

In upholding the law the Supreme Court of Kansas cited no authority on the power of Government to make such restrictions against persons not in need of its protection and not a danger to society, and whose conduct, in particular, in using liquor would not harm those whom society was seeking to protect, nor did it discuss such a proposition. In a very casual way it said that as under the previous local license law each community could determine whether any license should issue at all, "the old law was as much a prohibition law as the present liquor law." But was "the old law" entirely valid? Could a community, in determining not to license saloons, and thereby throw protection around the weak, constitutionally prevent a man from having liquor who was capable of using is as a beverage without detriment to himself, his family, or society? It was assumed in the opinion that it could. Thus the whole fabric of decisions is based on an assumption, and, as will appear, the cases ascend from one cloud-bank to another. The major premise being unsound, the conclusion is necessarily bad. As pointed out elsewhere, local option came to be taken as a matter of course because the competent man, who did not patronize the saloon as a drinking place when it was open, was but little inconvenienced by it, while the restraint of it was felt by those who were heavy drinkers by the glass and who therefore needed the assistance which came with the removal of the bar. But even local option which took no account of the Liberty of the competent man was to that extent unconstitutional. It was valid so far as it helped the incompetent man without despoiling the other of his right "against any government on earth." It was constitutional no further.

Justice David J. Brewer, later to be United States District Judge for the District of Kansas, and still later to be Associate Justice of the Supreme Court of the United States, concurred in the opinion; but, referring to the fact that the record did not show sales by Mugler, he touched the heart of the matter as follows:

The defendant may have manufactured the beer for his own consumption.... And I have yet to be convinced that the legislature has power to prescribe what a citizen shall eat or drink.

Brewer was right. The legislature can protect the weak, but it cannot directly touch the strong. It may inconvenience the strong to the degree of necessity in shielding the weak, but, as Blackstone says, it can go "no farther."

That was the only definite statement that any jurist made in all these cases respecting the "unalienable Rights" described in the Declaration of Independence as coming from the Creator and for the securing (not destroying) of which "Governments are instituted among Men." From this point on the Bill of Rights, which Jefferson said should stand "against any government on Earth," and the other provisions of the Constitution for the protection of Liberty and Property, are no more than cobwebs in the way of this onset of forbidding.

A Bill of Rights in English and American thought has always connoted individual privileges superior to Sovereignty of whatever sort: superior to monarch, superior to legislature, superior to majority. The English Bill of Rights of 1689 contained nothing new: William and Mary merely agreed not to interfere as sovereigns with the immemorial rights and liberties of the Englishman, which he never got from Government and which he insisted no Government could take away or in any wise reduce. That is true of the American Declaration of Rights of 1765, which set out "the grievances under which they labor by reason of the several late acts of Parliament," showing the belief then that a Parliament which has been described down to recent times by English writers as "omnipotent" was nevertheless powerless against what was called "the undoubted right of Englishmen." And the American Declaration of Rights of 1774, like the first one, challenged both King and Parliament in their disregard of "the rights, liberties and immunities of free and natural-born subjects within the realm of England," of which the colonists claimed to be possessed. And the Bill of Rights in the Constitution of the United States (the first ten amendments) which was demanded by many of the ratifying conventions, was intended to protect the Man "against any Government on earth," as Jefferson wrote — against the State legislature pursuing a "policy," against the Congress in state of siege by lobbies, against the majority when exhibiting what Cicero well described as "the violence of a headless people." Liberty in the Fifth Amendment and the Fourteenth is indestructible.

Preceding this major case was the Prohibitory Amendment case (24 Kans. 499), decided by the Supreme Court of Kansas in 1881, in which the contention was made that as the constitutional amendment of Kansas had been borrowed from New York, it brought along with it, under a familiar and long observed rule of construction, a New York decision (Wynehamer v. People, 13 N. Y., 387), holding that previously acquired property cannot be thus taken, else no private right would be entirely safe and the legislative discretion could be absolute.

But the Supreme Court of Kansas brushed that away without analysis:

A full answer to this argument is the unanimous decision of the Supreme Court of the United States, the final arbiter in all questions of alleged infractions of the Federal Constitution, in the case of Beer Company v. Massachusetts, 97 U. S., 25, a decision since the adoption of the Fourteenth Amendment, and re-affirming the decision of Bartemeyer v. Iowa, 18 Wall, 129, in which the Court decides that a law prohibiting the manufacture and sale of intoxicating liquors for use as a beverage is not repugnant to any clause of the United States Constitution.

Neither of those decisions is in the remotest degree an authority for that statement. That is, for a statement so unqualified as to mean, as the quoted language does, and has been followed as meaning, that an absolute prohibitory law of a State, written for the help of the weak and the general good of society, may take away the rights of those whose conduct is harmful to no one.

By way of preface to an examination of the decisions of the Supreme Court of the United States relied upon as authority by the Supreme Court of Kansas, it should be mentioned that no rule has been more often repeated (German Alliance, etc., v. Home, etc., 226 U. S., 220) than that a statement in an opinion by a court must be limited to the facts and issues involved in the particular record under investigation. Any comment outside of this cannot be used as authority by either court or counsel in another case. The Supreme Court has frequently warned that "the opinion of a court must always be read in connection with the facts upon which it is based"; that the opinion in a particular case, founded on special circumstances, is not applicable in circumstances entirely different; and that "these expressions are to be understood in their application to the facts of the cases decided."

In the Bartemeyer case (1873), to take the earlier in date first, the defendant claimed, and claimed only, that he owned the liquor before the enactment of the law of Iowa of 1860. He made no other defense. The holding was that the law of 1860 was a revision of that of 1851, so that his ownership did not antedate the regulation. To place beyond doubt just what was the defense of the accused, Bartemeyer's plea is given in full:

And now comes the defendant, F. Bartemeyer, and for plea to the information in this cause says: He admits that at the time and place mentioned in said information he did sell and deliver to one Timothy Hickey one glass of intoxicating liquor called whisky, and did then and there receive pay in lawful money from said Hickey for the same. But defendant alleges that he committed no crime known to the law by the selling of the intoxicating liquor hereinbefore described to said Hickey, for the reason that he, the defendant, was the lawful owner, holder, and possessor, in the State of Iowa, of said property, to wit, said one glass of intoxicating liquor, sold as aforesaid to said Hickey, prior to the day on which the law was passed under which these proceedings are instituted and prosecuted, known as the act for the suppression of intemperance, and being chapter sixty-four of the revision of 1860; and that, prior to the passage of said act for the suppression of intemperance, he was a citizen of the United States and of the State of Iowa.

That does not raise the question of the power of the State to prohibit the sale of liquor to one competent to use it as a beverage. The contention was that as defendant owned the liquor before the law was passed, his property rights were fixed by the law then in force and could not be taken away by a later law. No evidence, oral or documentary, was introduced. The case was tried on the plea by stipulation without a jury. The trial court found him guilty and imposed a fine of $20. In sustaining the judgment the Supreme Court of Iowa said that, so far as the transcript disclosed, there might have been evidence that he did not own and possess the liquor as he pleaded. He did not prove when he got the liquor — he did not make his case.

In the Supreme Court of the United States the case was submitted on printed argument, taking, the Court said, "a very wide range," and consisting largely "of the arguments familiar to all, against the right of the States to regulate traffic in intoxicating liquors." Then it added that so far as the "wide range" of "argument deals with the mere question of regulating this traffic, or even its total prohibition, as it may have been affected by anything in the Federal Constitution prior to the recent [Civil War] amendments of that instrument, we do not propose to enter into a discussion." The Supreme Court went on:

Up to that time [the Fourteenth Amendment] it had been considered as falling within the police regulations of the States, left to their judgment, and subject to no other limitations than such as were imposed by the State constitution, or by the general principles supposed to limit all legislative power.

There, in the words italicized, is an explicit recognition that before the Fourteenth Amendment forbade the States to "deprive any person of life, Liberty, or property, without due process of law," they were restrained by "the general principles" which throughout the English-speaking world "limit all legislative power." It was a violation of those principles, as has elsewhere been shown, that drove the Pilgrims and others to the New World to establish the principles here in more definite (because written) form. On the only question raised by the plea of the accused the Supreme Court said:

But if it were true, and it was fairly presented to us, that the defendant was the owner of the glass of intoxicating liquor which he sold to Hickey, at the time that the State of Iowa first imposed an absolute prohibition on the sale of such liquors, then we concede that two very grave questions would arise, namely: 1. Whether this would be a statute depriving him of his property without due process of law; and secondly, whether if it were so, it would be so far a violation of the Fourteenth Amendment in that regard as would call for judicial action by this court?

Both of these questions, whenever they may be presented to us, are of an importance to require the most careful and serious consideration. They are not to be lightly treated, nor are we authorized to make any advances to meet them until we are required to do so by the duties of our position.

That distinctly states that the right claimed by Mugler under the Fourteenth Amendment was not involved in the case.

By "fairly presented" the court referred to the reasons of record for its belief that it had been imposed upon by a moot case in which the real facts were not revealed. The following quotation from the Supreme Court's opinion makes it clear that Bartemeyer failed on the record to get the constitutional question in his plea before the court — that is, that nothing was decided:

The defendant, from his first appearance before the justice of the peace to his final argument in the Supreme Court, asserted in the record in various forms that the statute under which he was prosecuted was a violation of the Constitution of the United States. The act of the prosecuting attorney, under these circumstances, in going to trial without any replication or denial of the plea, which was intended manifestly to raise that question, but which carried on its face the strongest probability of its falsehood, satisfies us that a moot case was deliberately made up to raise the particular point when the real facts of the case would not have done so. As the Supreme Court of Iowa did not consider this question as raised by the record, and passed no opinion on it, we do not feel at liberty under all the circumstances, to pass on it on this record.

It is true that the court said that the weight of authority was that a State could even go to the extent of "prohibiting the traffic in intoxicating drinks." First, that question was not raised on the record. Second, prohibiting traffic meant in those days stopping the old trade in the saloon and elsewhere, and not prohibiting a competent man from even possessing liquor.

So the Bartemeyer case, in which no absolute prohibitory law was attacked as such, decided no constitutional question. It is not authority for the proposition that, in regulating the manufacture and sale of liquors for the protection of drinkers to excess and society, a State may assail the strong and competent and make them subjects of absolute prohibition.

The second holding of the Supreme Court of the United States relied upon by the Supreme Court of Kansas in deciding the Prohibitory Amendment case was Beer Company v. Massachusetts, 97 U. S., 25 (33), in which the highest court rested its conclusion directly on its Bartemeyer decision just before reviewed, the tenor of which it erroneously stated, as follows:

Since we have already held in the case of Bartemeyer v. Iowa that as a measure of police regulation, looking to the preservation of public morals, a State law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to any clause of the Constitution of the United States, we see nothing in the present case that can afford any sufficient ground for disturbing the decision of the Supreme Court of Massachusetts.

It has just been made clear that Bartemeyer did not raise in his plea a question of prohibition. The question which he tried to raise was lost on the way and not passed on by the Supreme Court.

To be sure, Bartemeyer was fined under a prohibitory law. But the validity of that law was not raised by him in his plea; he contended only for his rights respecting property which he pleaded (and which was not denied by answer or replication) that he had acquired before the law was passed. His plea admitted the validity of the law so far as his right to sell subsequently acquired liquor was concerned. But even had he assailed the constitutionality of the law as against general selling, a decision upholding that properly exerted power of the State would not determine the right of the competent man to supply his requirements by some kind of special purchase.

That is the constitutional question of first magnitude in these cases and it never has received any adequate discussion. Indeed, "this freedom" has languished out of existence through the implications of the decisions that the will of a State, and not the Constitution of the Nation, is "the supreme Law of the Land."

In Beer Company v. Massachusetts, the second of the two cases relied upon by the Supreme Court of Kansas, from which a quotation has just been made upholding the decision of the Supreme Judicial Court of Massachusetts, the contest was over a charter contract to sell liquor. Could the State, in view of Article I, section 10 of the Constitution, impair the obligation of its contract with a company which it had chartered to deal in liquors by subsequently enacting a law prohibiting the sale of malt beverages? The answer was that the State had reserved in the charter the power to change it. As its creature the corporation had accepted such restraint when the State should choose to apply it. Nothing else could have been decided. Yet the Supreme Court went on to quote what it had said in the Bartemeyer case about the power of the State to prohibit the manufacture and sale of intoxicating liquors.

But even had the question been directly raised of the power of the State to close the saloon and prohibit the general manufacture and general sale of liquors, that would have left for disposition sometime or somewhere the right (or lack of it) of the man who needs no help from the State and whose conduct is above question to procure by special manufacture and special sale what he is competent to use as a beverage without detriment to society. Judicial discussions running through forty-seven years have ignored that, until by such neglect the Man has in practice lost his Liberty.


Obiter Dictum Followed

Returning to what has been designated here as the major case, State v. Mugler (29 Kans., 252), so denominated because it went to the Supreme Court of the United States, while the earlier one, Prohibitory Amendment Cases (24 Kans., 499) did not, and also because it, as affirmed, has been the stock citation, the "golden milestone" from which all subsequent encroachments of legislatures on the Liberty and the property of the Man have been surveyed, it has been already signified that its lack of reasoning received the imprimatur of the Supreme Court of the Nation. When Mugler lost his brewing business in Kansas, and most of the value of his property too, he carried his case to Washington. In the Supreme Court of the United States counsel for Mugler made the point, along with many others, that he had been deprived of his liberty beyond necessity, and that his property had been destroyed for other than necessary police purposes. While he had no inherent right to make beer for general sales, was it necessary to prevent him from making it for such persons as were not subjects of the police power? This question constantly recurs, which Justice Brewer raised at the beginning, can Government interfere with the eating or drinking of a man when he does no harm to himself, his family, or society?

If yes, then it is hard to imagine to what lengths of interference the precedent may be carried by Government.

In December, 1887, as already shown, the Supreme Court of the United States affirmed the decision of the Supreme Court of Kansas in a manner fully as oracular as that of the court below. The decision begins by stating the question whether Kansas had abridged the privileges or immunities of citizens of the United States, or deprived them of property, in contravention of the Fourteenth Amendment to the Constitution. Then it quotes some obiter dictum from an opinion written by Chief Justice Taney (License Cases, 5 How. 504, 577) twenty-one years before the Fourteenth Amendment was adopted to put restraint upon the Government of the States. Of course, in Taney's time the only commonly considered limitations upon action by a State were contained in Article I, section 10, of the Constitution, and had to do with treaties, coinage, attainder, bills of credit, and some other matters. But even in Taney's day, before the Fourteenth Amendment with its numerous additional restrictions upon the States, there existed, as the Supreme Court mentioned in the Bartemeyer case, before quoted, "the general principles supposed to limit all legislative power." That is, as earlier pointed out, there has always existed in English and American law some shore on which the encroaching waves of Government must break. In Magna Charta (1215), in the Petition of Right (1628), in the Habeas Corpus Act (1679), in the Bill of Rights (1689), as well as in the American Declarations of Rights of 1765 and 1774, in the Virginia Bill of Rights (1776), and in the Declaration of Independence, there had been insistently proclaimed "the undoubted rights of Englishmen" which all governments must let alone. These rights, "the general principles supposed to limit all legislative power," existed before the Constitution was dreamed of, and they have continued since the Constitution was adopted. We do not get our rights from constitutions. Before constitutions, rights were. And due process of law requires, as elsewhere shown, that the man be not denied (1) the rights safeguarded by constitutional provisions, and (2) those "existing in the common and statute law of England before the emigration of our ancestors."

Returning to Taney's decision in 1847 in the License Cases, the first authority cited in the Mugler case by the Supreme Court of the United States to justify its sustaining the holding of the Supreme Court of Kansas: that decision had to do with the power of Massachusetts, Rhode Island, and New Hampshire to issue licenses and to regulate (not stop) sales of imported liquors in disregard of the Commerce Clause of the Constitution, which gives all power in the regulation of commerce to Congress, and in disregard also of the Impost or Revenue Clause. The official title of the case shows that license, not prohibition, was before the court.

The act of Massachusetts (1837) was for the "regulation of licensed houses" (hotels and other public places), and it forbade sales in less quantity than twenty-eight gallons, this being to prevent drinking on the premises. The defendant was indicted, not because the law forbade him to sell (which it did not), but for selling "without license." His case was taken to the Supreme Court of the United States by Daniel Webster and Rufus Choate. Their main contention was that as the liquor was imported by the defendant under the Commerce Clause, he really got from the Nation the right to sell it without interference by the State. They argued also that as the granting of a license was in the discretion of the county commissioner, and as no license had been issued in defendant's county for six years, all sales might be prohibited. It was further contended by them that the State interfered with the operation of the Commerce Clause of the Constitution and also with that of the Excise Clause. There was no question, as there was in Kansas, of the absolute prohibition of the manufacture and sale. Sales were allowed.

The case carried up from Rhode Island also involved imported liquor. Defendant, as in the Massachusetts case, was indicted, not for selling, but for selling without a license. He contended that the State could not (1) impede imports or (2) interfere with trade under the Commerce Clause. The attorney-general of the State said that these were the only questions. Absolute prohibition, as before said, was not involved, as it was in the Kansas case.

The case from New Hampshire was precisely like the other two except that the importation was from Massachusetts instead of from a foreign country. Defendant, who had been indicted for selling without a license, contended that the law was void for conflict with the Commerce Clause of the Constitution, and also that it contravened the Taxing Clause. There was no showing that a license had been denied him, or that all other towns than his had not licenses. There was no question of the power of the State, as there was in Kansas, to prohibit absolutely the manufacture and sale of liquor, without regard to anybody's Liberty.

The three cases were heard and decided together. Chief Justice Taney wrote the leading opinion covering all the cases, Justice Nelson concurring. Justice McLean wrote a separate opinion in the case from Massachusetts. In the case from New Hampshire a separate opinion was written by Justice Catron, with Justice Nelson concurring. Separate opinions were written by Justices Daniel, Woodbury and Grier. All the opinions supported the legislation regulating (not prohibiting) the sale of liquors and requiring sellers to procure licenses. The New Hampshire case, involving shipments from one State to another, was overruled in 1890 in the Original Package case (Leisy v. Hardin, 135 U. S., 100), which held that while a shipment in interstate commerce was in the original container the regulations or prohibitions of the State could not affect it.

To reënforce the preceding analysis of the record brought up to the Supreme Court on behalf of the indicted men, which makes plain that the question of absolute prohibition could not have been involved, and was not, therefore, decided, the opinions of the Justices will be used. Said Justice Woodbury (p. 618), referring to the three State laws:

In the next place, in point of fact, neither of the laws goes so far as to prohibit in terms the sales, any more than the imports, of spirits.

Justice Daniel said of the laws:

They do not prohibit sales, either by wholesale or retail; they assert only the power of regulating the matter.

Justice Catron said in the case from New Hampshire that the single point was whether the State had power to regulate its own mode of commerce among the States "during the time Congress lies dormant." Congress lay dormant under the Commerce Clause of the Constitution until the Act to Regulate Commerce was passed in 1887. In the Massachusetts case Justice Catron volunteered the remark that regulation might "go to the length of prohibiting." But that was beyond the record, which involved the alleged interference by the State with importations in pursuance of the laws of the Nation.

In the case from Massachusetts it was pointed out by Justice McLean (p. 586) that the record had no showing that the defendant had ever applied for a license or that Massachusetts had denied one. Therefore, the question of absolute prohibition, the one in Kansas, could not arise. The argument had been made that Massachusetts might push its discretion in issuing licenses to the point of prohibition, to which Justice McLean answered:

If, in the exercise of their discretion, the commissioners have refused all licenses, that is a matter of fact which must be established.

It was not established — nor even claimed. To the argument in the case from Rhode Island that a license could be denied Justice McLean said:

This produces no restriction on the sale of spirits in any quantity exceeding ten gallons.

So that was not absolute prohibition.

In the opinion by Chief Justice Taney covering the three cases he stated the question for decision to be whether the laws operated as a "regulation of foreign commerce or of the internal traffic of the State." And that was the only question that could have been decided on the record before the court. He found that as to both the importations the shipments had passed beyond the line of commerce and become a part of the general mass of commodities in the State when the laws took hold of them, while as to the interstate shipment from Boston to Dover, New Hampshire, there was no congressional legislation with which the State could interfere. This decision in the New Hampshire case was, as before mentioned, overruled in the Original Package case forty-five years later.

The following quotation from Taney's opinion (p. 573) shows that the cases presented no question whether the State has power to prohibit, as well as regulate, the manufacture and sale of liquors, for which reason that question could not have been decided. It illustrates also how a great judge will sometimes make comments which are entirely unrelated to the record on which the parties tried the case, which remarks receive, therefore, that brand of general worthlessness for the purpose of precedent known as obiter dicta:

But I do not understand the law of Massachusetts or Rhode Island as interfering with the trade in ardent spirits while the article remains a part of foreign commerce, and is in the hands of the importer for sale, in the cask or vessel in which the laws of Congress authorize it to be imported. These State laws act altogether upon the retail or domestic traffic within their respective borders. They act upon the article after it has passed the line of foreign commerce, and become a part of the general mass of property in the State. These laws may, indeed, discourage imports, and diminish the price which ardent spirits would otherwise bring. But although a State is bound to receive and to permit the sale by the importer of any article of merchandise which Congress authorizes to be imported, it is not bound to furnish a market for it, nor to abstain from the passage of any law which it may deem necessary or advisable to guard the health or morals of its citizens, although such law may discourage importation, or diminish the profits of the importer, or lessen the revenue of the general government. And if any State deems the retail and internal traffic in ardent spirits injurious to its citizens, and calculated to produce idleness, vice, or debauchery, I see nothing in the Constitution of the United States to prevent it from regulating and restraining the traffic, or from prohibiting it altogether, if it thinks proper. Of the wisdom of this policy, it is not my province or my purpose to speak. Upon that subject, each State must decide for itself. I speak only of the restrictions which the Constitution and laws of the United States have imposed upon the States. And as these laws of Massachusetts and Rhode Island are not repugnant to the Constitution of the United States, and do not come in conflict with any law of Congress passed in pursuance of its authority to regulate commerce with foreign nations and among the several States, there is no ground upon which this court can declare them to be void.

The obiter dictum in the foregoing is the statement that he saw nothing in the Constitution to prevent a state, if it should think it necessary, "from prohibiting it altogether." None of the three States concerned in the case had tried to prohibit altogether the traffic. The law of each was regulatory only.

Moreover, "restraining the traffic or from prohibiting it altogether" meant, in those days, prohibiting the trade in saloons and other public houses as then carried on. The question of absolute prohibition in disregard of the right of a sober man to procure liquors for beverages, was not in the record, and could not, of course, have been in Taney's mind. The decision is, consequently, entirely out of point on that proposition.

Each defendant was indicted for not complying with the regulation requiring him to procure a license to sell before he made the sales. The attorneys for the defendants contended, not that the laws prohibited sales (which they did not), but that they conflicted with the Commerce Clause of the Constitution and with the laws of Congress drawing from imports revenues for the Nation.

What the Chief Justice meant by the dictum was that none of the restrictions on the States in the Constitution at that time (1847) seemed to prevent the enactment of a prohibitory law. Even so, there had always existed, apart from both State and National Constitutions, "the undoubted right of Englishmen" to Liberty, as heretofore shown by Blackstone, and that Liberty came to America; and a prohibitory law even in that day disregarding persons not in fact needing police-power inhibitions would have been a violation of it. But the Civil War amendments put specific limitations on the States with respect to denying Liberty. By the Fourteenth Amendment the State is forbidden to "deprive any person of Life, Liberty, or Property, without due process of law." Long before that language was written in the Fourteenth Amendment against the State, the same words, contained in the Fifth Amendment against the Nation, were explained (1855) as follows by the Supreme Court (Murray's Lessee v. Hoboken, 18 How. 272, 277):

The Constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process "due process of law" by its mere will. To what principles, then, are we to resort to ascertain whether this process, enacted by Congress, is due process? To this the answer must be twofold. We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.

That is, Americans have rights and liberties not mentioned in constitutions and existing before constitutions were written. As elsewhere remarked, rights are not given by constitutions.

Nor can a State by a mere legislative pronouncement or fiat that, to protect weak men and their families against the evils proceeding from the excessive use of liquors, it is necessary to deprive strong men of their inherent Liberty to take care of themselves thereby make due process of law of its action. What is due process is for the Judicial Department to determine and not the Legislative; and in the Mugler case the Judicial Department should have held that the Constitution and the law of Kansas, so far as they grouped temperate and capable men with drinkers to excess and made no provision for the respecting of their rights, denied due process as to Liberty.

Taney's observation that a State has the power of "regulating and restraining the traffic" is conceded. It always has been conceded. The question under consideration here is of the power to stop it absolutely as to capable and temperate men.

Can the State, by either constitutional provision or act of the legislature, stop the manufacture for and the sale to the man who is competent to use in moderation, and therefore without detriment to society, what have been recognized in all times and countries as articles of beverage? In all the judicial discussion that has been recorded during the forty-three years between the decision of the Supreme Court of Kansas in the Mugler case and the decision of the Supreme Court of the United States for the regulating of physicians nothing has been said on the historic and constitutional rights of the Man.

Prohibition, which had for its original and proper purpose the abolition of that man-trap, woman-trap, child-trap, rendezvous of criminals, and source of vice and corrupt politics known as the saloon, has developed under ill-considered judicial decisions until the competent and unoffending man is now hunted in his home.

History furnishes no better example of the tendency of Government, when vigilance is relaxed, to become master of the Man. What the State legislatures and the National Congress have accomplished together gives present-day meaning to the warning of the great Madison nearly a century and a half ago, that against the "enterprising ambition" of the Legislative Department of Government "the people ought to indulge all their jealousy and exhaust all their precautions."

But even worse than the existing smothering of the Liberty of the Man is the possibility of its use in coming time as a precedent. When a case involving disregard of laws requiring the securing of licenses for the sale of liquor could be used by the Supreme Court of the United States as a precedent for holding that the manufacture and sale may be prohibited for the welfare of the weak against the Liberty of the strong, and when the previous existence of unchallenged local option laws (which were probably not very inconvenient) could be taken by the Supreme Court of Kansas as a ground for declaring that an absolute prohibitory law was therefore not violative of constitutional Liberty, can even imagination foresee what may be brought about by the use as precedents of the decisions which came to culmination in the holding that to make a sober and competent man a criminal for possessing liquor for his own use is not an act of Government in derogation of the Liberty for which the Revolutionary War was fought?

The making of this condition was aided by its being "in a good cause." An admission of this by the Supreme Court will be considered later. But before the Birth of Christ warning was given by "the great Julius" respecting precedents, particularly in such a cause. On the proposed punishment of Cataline's associates in a way of doubtful legality Cæsar said:

But take care, Conscript Fathers, how your present decrees may affect posterity. All bad precedents spring from good beginnings, but when the administration is in the hands of wicked or ignorant men these precedents, at first just, are transferred from proper and deserving objects to such as are not so.

Two other of its decisions were relied upon by the Supreme Court of the United States in the Mugler case to uphold the Supreme Court of Kansas, namely, the Bartemeyer case and the Beer Company case, both of which have already been analyzed and neither of which contained anything on the power of a State to interfere with the Liberty of the competent and sober man.

From the time (1887) over forty years ago that the Supreme Court of the United States upheld the Supreme Court of Kansas in the Mugler case by relying upon Chief Justice Taney's dictum in the License Cases of 1847 from Massachusetts, New Hampshire and Rhode Island, and upon the wholly unlike cases of Bartemeyer v. Iowa and Beer Company v. Massachusetts, our court of last resort has steadily receded from what it said in the Bartemeyer case, that there are "general principles supposed to limit all legislative power."

When by Congressional "legislative power" a man becomes a criminal for possessing liquor which the law of the State permits him to possess, and when by the combined "legislative power" of the State and Nation (exerted even before the Eighteenth Amendment gave them "concurrent power") he is a criminal for carrying it in his valise for his own use, what is left to him of that Liberty in the Fifth Amendment and the Fourteenth Amendment which the Supreme Court said is protected by those "general principles supposed to limit all legislative power"? The only conceivable remnant of his Liberty is that the Judicial Department will protect him from the use of the stomach pump in case Congress or the legislature of some State, or both of them, should, in furtherance of what the Supreme Court called "the peace and security of society" and the "protecting of the community," determine that whenever a man succeeds in besting vigilance and taking a drink it must be forcibly withdrawn from him. That contingency will arise, for the spirit in control now is like that of the Puritan described by Macaulay, which opposed bear-baiting, not because it was cruelty to the bear, but because it gave pleasure to the spectators. Enforcement now seems directed more to keeping liquor away from those who may be capable of using it than from the poor and unfortunate in whose behalf the abolition of the open saloon and all its allurements and temptations was originally begun.

The last of the "general principles" disappeared with the decision of the Supreme Court in 1917 holding (Crane v. Campbell, 245 U. S., 304) that a man is a criminal who even possesses liquor for beverage purposes. This case upheld the law of Idaho of 1915 authorizing prohibition districts. Referring to the Mugler, the Bartemeyer and the other cases hereinbefore analyzed, the Supreme Court said that "it is now regarded as settled" that a State may absolutely prohibit the manufacture and sale of liquor for beverages, from which premise, unsupported by any reasoned decision, it proceeded to a conclusion which wiped out the last vestige of the Liberty which the Fourteenth Amendment was written to protect against intrusion by the State. It said:

We are unable to say that the challenged inhibition of their possession was arbitrary and unreasonable, or without proper relation to the legitimate legislative purpose.

The legitimacy or constitutionality of the legislative purpose is thus, as usual, assumed, instead of being judicially determined. From the first Mugler case down, no legal or constitutional question affecting the competent and sober man has been determined by the use of reason. Invariably the power of the Legislative Department has been assumed.


"Policy" Never Unconstitutional

The Supreme Court has not only assumed that the State may work its will with the Liberty of the Man, the Fourteenth Amendment to the contrary notwithstanding, but it has also upheld actions by Congress in usurpation of police power which the Constitution does not confer on that body. It has sustained acts of Congress destructive of the Liberty which the Fifth Amendment was placed in the Bill of Rights to protect against the Nation. State legislatures and the National Legislature have cooperated to trample down the Liberty in the Fifth Amendment and the Liberty in the Fourteenth; and all this legislation has been upheld as a "policy" with which the Judicial Department cannot interfere. Some of this legislation and the decisions supporting it will now be examined.

The Wilson law (1890) was enacted by Congress four months after the decision of the Supreme Court in the Original Package Case (Leisy v. Hardin, 135 U. S., 100), holding that the law of Iowa prohibiting the sale of liquor except for pharmaceutical, medical, chemical, and sacramental purposes could not operate on a shipment in interstate commerce delivered to the consignee in the original package, as that would be a control by the State of interstate commerce, which the Constitution puts, by the Commerce Clause, in the control of the Nation. But upon delivery to the consignee the shipment would become a part of the merchandise in the State and thereafter be subject to local laws. This decision, which, as previously mentioned, overruled the decision of Chief Justice Taney in the Prohibition Cases with respect to an interstate shipment from Boston to New Hampshire, was "recalled" by the Wilson law, which forbade the sale in a State in the original package where existing laws prohibited or future laws would prohibit the sale. It declared that liquors "shall, upon arrival, ... be subject to the operation and effect of the laws of such State ... as though" produced in the State, and that they should not be exempt from the operation of local laws because in the original package.

In May, 1891, this act of Congress was upheld (In re Rahrer, 140 U. S., 545), the Supreme Court saying that State jurisdiction attached to the commodity when it entered the State, not by virtue of the law of Congress, but because the law of Congress placed the property "where jurisdiction could attach." That is, the law of Congress could not effectuate local law — could not operate as a police law, for Congress had no police power. But by placing the interstate shipment "where jurisdiction could attach" (whatever that means) Congress accomplished indirectly what it lacked the police power to do directly, namely, it made a law of its own operative in Kansas in support of a police law of that State.

Could Congress constitutionally engage in such police regulation in the State? No. If it could, why was the Eighteenth Amendment necessary thirty years later giving it police power? Could Congress under the Commerce Clause, which empowers it to regulate commerce only — to regulate it as commerce, not as beverages, food, or other like material — change the interstate character of one class of shipments so that they would not be interstate shipments upon crossing a State line, even though they might have long distances to travel in completion of the interstate journey on which they had been consigned? Does Congress draw power from the Commerce Clause of the Constitution to declare a fact to be otherwise than it is? By the Commerce Clause it is empowered "to regulate commerce with foreign Nations, and among the several States, and with the Indian tribes." That relates to commerce in the commercial sense, so to put it, in the transportation sense, and not in the police-power sense, which connotes the health, safety, morals and general well-being of the people, matters in the police field of the State. It got no power in the Commerce Clause over such matters, and it cannot constitutionally touch them directly or indirectly.

How alien was the Wilson law to any power granted to Congress by the Commerce Clause may be illustrated by a few passages from Fiske's "Critical Period of American History," in which he portrays the commercial rivalry of the States which broke down our first constitutional Government and which made necessary the Commerce Clause in the Constitution of the new Republic (pp. 144-147):

Amid such mutual jealousies and misgivings, during the year 1785 acts were passed by ten states granting to Congress the power of regulating commerce for ten years. The three states which refrained from acting were Georgia, South Carolina and Delaware. The acts of the other ten, as might have been expected, were a jumble of incongruities.... Meanwhile the different states, with their different tonnage acts, began to make commercial war upon one another. No sooner had the three other New England states virtually closed their ports to British shipping than Connecticut threw hers wide open, an act which she followed up by laying duties upon imports from Massachusetts. Pennsylvania discriminated against Delaware, and New Jersey, pillaged at once by both her greater neighbors, was compared to a cask tapped at both ends. The conduct of New York was especially selfish and blameworthy.... Of all the thirteen states none behaved worse except Rhode Island. A single instance, which occurred early in 1787, may serve as an illustration. The City of New York, with its population of 30,000 souls, had long been supplied with firewood from Connecticut, and with butter and cheese, chickens and garden vegetables; from the thrifty farms of New Jersey. This trade, it was observed, carried thousands of dollars out of the city and into the pockets of detested Yankees and despised Jerseymen. It was ruinous to domestic industry, said the men of New York. It must be stopped by those effective remedies of the Sangrado school of economic doctors, a navigation act and a protective tariff. Acts were accordingly passed obliging every Yankee sloop which came down through Hell Gate, and every Jersey market boat which rowed across from Paulus Hook to Cortlandt street, to pay entrance fees and obtain clearances at the custom house, just as was done by ships from London or Hamburg; and not a cartload of Connecticut firewood could be delivered at the backdoor of a country house in Beekman street until it should have paid a heavy duty. Great and just was the wrath of the farmers and lumbermen. The New Jersey legislature made up its mind to retaliate. The city of New York had lately bought a small patch of ground on Sandy Hook and had built a lighthouse there. The lighthouse was the one weak spot in the heel of Achilles where a hostile arrow could strike, and New Jersey gave vent to her indignation by laying a tax of $1800 a year on it. Connecticut was equally prompt. At a great meeting of business men held at New London it was unanimously agreed to suspend all commercial intercourse with New York. Every merchant signed an agreement, under a penalty of $250 for the first offense, not to send any goods whatever into the hated state for a period of twelve months. By such retaliatory measures it was hoped that New York might be compelled to rescind her odious enactment.

And so the story runs on and on.

Chief Justice Marshall, who had served in the Revolutionary army and whose advocacy of the Constitution in the ratifying convention of Virginia had done much to bring about its adoption against the opposition of Patrick Henry and other men of ability, should have known what the Commerce Clause was intended to accomplish. In his opinion in 1827 in Brown v. Maryland (12 Wheaton, 419, 446) he employed this language:

The oppressed and degraded state of commerce, previous to the adoption of the Constitution, can scarcely be forgotten. It was regulated by foreign nations with a single view to their own interests, and our disunited efforts to counteract their restrictions were rendered impotent by want of combination. Congress, indeed, possessed the power of making treaties, but the inability of the Federal government to enforce them had become so apparent as to render the power in a great degree useless. Those who felt the injury arising from this state of things, and those who were capable of estimating the influence of commerce on the prosperity of nations, perceived the necessity of giving control over this important subject to one government. It may be doubted whether any of the evils proceeding from the feebleness of the Federal government contributed more to that great revolution which introduced the present system than the deep and general conviction that commerce ought to be regulated by Congress.

It was power to prevent conflicts of that kind which Congress received through the Commerce Clause, and not power to take a bottle from a man's valise or to change the character of commodities (if that were possible) in furtherance of the police regulations of a State. Its power is national and international, not local.

The police power of the State plus the legerdemain of the Wilson law being insufficient in the opinion of the proponents of a "bone-dry" condition, they sought another law from a Congress which was unaware of any constitutional limitations on its crusading spirit. The Webb-Kenyon bill (1913) was promptly passed and handed out to those who had taken possession of all police power and were dictating their wishes to the legislatures of the States and to Congress. This law was entitled "An Act Divesting Intoxicating Liquors of their Interstate Character in Certain Cases." It did not occur to Congress at that time, evidently, that it would be just as simple and far more practicable to divest liquors of their intoxicating qualities and thereby put the controversy at rest forever. It had as much power to do the one thing as the other. Congress forbade the shipping of liquor in interstate commerce, "which ... liquor is intended ... to be received, possessed, sold, or in any manner used, either in original package or otherwise, in violation of any law" of a State.

It was a plain stoppage of commerce, which Congress has no constitutional power to accomplish. The Commerce Clause of the Constitution empowers it "to regulate Commerce ... among the several States," but not to stop it. One who has any commodity that has been recognized in the affairs of mankind as an article of trade has a right to ship it. But, of course, the police power of the State may prevent him from selling it generally or delivering it to a person who will be harmed by it. He may ship it to the competent person. This is solely a police-power question. And that is the extent of the power. As the Nation never received police power through the Constitution — on the contrary, as it was warned specially and very gravely by the Tenth Amendment to keep out of the States — it had no jurisdiction of the subject at all. And yet by the Webb-Kenyon law Congress proceeded to enforce police regulations in the States.

The Webb-Kenyon bill was declared to be unconstitutional in an opinion by the Attorney-general of the United States (30 Op. A. G., 88) to the President, who vetoed the bill (49 Cong. Rec. pt. 5, p. 294) in accordance therewith. One of several reasons given by the Attorney-general was that the bill would delegate to the States a control over interstate commerce, which the Constitution vests in the Nation. That view was sound. It was either a delegation of the power of the Nation to the States or an exercise in the State of police power by the Nation which it did not constitutionally possess. The bill was passed over the President's veto.[1] This was an example of that compulsion of propagandism which is mistaken for popular opinion and before which the Legislative Department quails.

[1] On the repassage of the bill it did not receive a vote of "two-thirds of that House" in which it originated, as the Constitution requires (Art. I, Sec. 7), nor "two-thirds of that House" to which it was sent by the other House The Supreme Court held two-thirds of a quorum enough. This will be discussed in relation to the Eighteenth Amendment, which was proposed, not by "two-thirds of both Houses," as the Constitution directs (Art. V), but by two-thirds of a quorum of each, which, also, the Supreme Court held to be a valid proposal of an amendment.

In upholding the constitutionality of the Webb-Kenyon law the Supreme Court did not deem it necessary to make even such an apologetic explanation as it used in sustaining the Wilson law, when it said that State jurisdiction attached to the interstate shipment of liquor, not by virtue of the law of Congress, but because the law of Congress placed the property "where jurisdiction could attach." This time — so dangerous is precedent — the Supreme Court declared the law to be merely an "extension" of the power upheld under the Wilson law. But is there no limit to the extension? Can Congress start without a power and then "extend" it until it becomes a power? Are the Fifth and Fourteenth Amendments futile as to Liberty, and is the Tenth Amendment meaningless when the Nation takes a hand in the police regulations of a State? These questions were not only ignored in this case, but they have received no reasoned consideration since the arising of the Mugler case in 1883.

In 1917 the Supreme Court said (Clark Distilling Co. v. West Maryland, etc., 242 U. S., 311), in a case arising under the Webb-Kenyon law:

That government can, consistently with due process, forbid the manufacture and sale of liquor and regulate its traffic, is not open to controversy.

Thus debate was foreclosed and reasoning found unnecessary. The argument in the opinion of the Attorney general and the veto message of the President were not discussed.

The Webb-Kenyon law was sustained in support of the laws of West Virginia of 1913 and 1915 forbidding the shipping into the State of liquors. The Nation and the State therefore acted concurrently in a police case in a State, following the precedent set by the Wilson law thirty years before the Eighteenth Amendment conferred upon them "concurrent power" to deal with liquor.

The Clark Distilling case was decided in January, 1917. In the last month of that year the Supreme Court held (Crane v. Campbell, 245 U. S., 304) that possession of liquor for personal use was illegal under the law of Idaho of 1915. On the authority of the Mugler and Bartemeyer cases, heretofore analyzed and shown not to contain what they are cited to hold, the Supreme Court said that it is now regarded as settled that a State may absolutely prohibit the manufacture and sale of liquor; and that, having the power to prohibit, it may employ any necessary enforcement measures. Considering the difficulties of enforcement, it concluded:

We are unable to say that the challenged inhibition of their possession was arbitrary and unreasonable or without proper relation to the legitimate legislative purpose.

In the light of that, what "legislative purpose" could be illegitimate? What conceivable action by a State legislature could now be obnoxious to the Liberty of the Man guaranteed in the Fourteenth Amendment? What possible action by the Legislature of the Nation could now be held violative of the Liberty supposed to be safeguarded against National oppression by the Fifth?

But as the appetite for power gains voracity with feeding, Congress, extending its authority, made another capitulation to what it conceived to be popular opinion when it added (March, 1917) the Reed Amendment to its collection of liquor laws. This provided:

Whoever shall order, purchase or cause intoxicating liquors to be transported in interstate commerce, except for scientific, sacramental, medicinal, and mechanical purposes, into any State ... the laws of which ... prohibit the manufacture or sale therein of intoxicating liquor for beverage purposes shall be punished as aforesaid; provided that nothing herein shall authorize the shipment of liquor into any State contrary to the laws of such State.

The Webb-Kenyon law, as previously shown, forbade shipment into a State when the "liquor is intended ... to be received, possessed, sold, or in any manner used ... in violation of any law" of the State. That is, the national mandate was intended to accomplish no more than the police power of the State sought to do: it would prevent liquor from the outside from having status or character in the State not given by local law.

But the Reed Amendment forbade transportation into the State on the sole ground that the law of the State prohibited, not the possession or use for beverage purposes, but "the manufacture or sale." So it came to pass that although the law of West Virginia permitted any person to bring in one quart of liquor in each thirty days, a man was convicted (U. S. v. Hill, 248 U. S., 20) for carrying with him on his journey from Kentucky to West Virginia one quart for his personal use because the State law forbade, not the possession or use, but "the manufacture or sale." Where "manufacture and sale" were forbidden by the State, it was declared by Congress that he could not transport even though the State law permitted him to do so. He had not violated the law of the State. He had stumbled on an Act of Congress superimposed on a State law which the State did not intend to be operative in the way that Congress made it operate: for the State authorized the bringing in of a quart although it had prohibited the manufacture within its boundaries.

That law of the State had regard for what is here argued to be constitutionally requisite, that is, if the prohibition by the State of manufacture and sale is absolute, there must be provision made for the procuring of liquor by those constitutionally entitled to possess and use it. The law of a State disregarding this is so far unconstitutional. It is no answer to say that this makes enforcement of temperance difficult. Enforcement of temperance on the temperate is illegal. More than that, enforcement of temperance is not a function of Government, but protection of the weak and erring is. Between these two propositions no distinction has been generally recognized in legislation or decisions. And even if it were a function of Government to enforce temperance, it would have a constitutional right to enforce it only as far as it could reasonably, that is, without transgressing Liberty. Beyond that the action would be arbitrary, and it would encounter constitutional barriers.

Between the needs of that section of society which the police power properly protects and that section which requires no help, and the conduct of which is blameless, a point of just balance must be found.

It has always been recognized that Congress got no general police power over the health, morals, safety and well-being of the people through the Constitution, whence it received all the powers it has. Yet in the Hill case, decided in January, 1919, a man was punished in West Virginia when the law of that State would not and could not punish him. Therefore, he was punished under a police law of the Nation — which, because it was a police law, the Nation had no power to make. This conclusion cannot be avoided.

Furthermore, Congress has power under the Commerce Clause "to regulate commerce" only. It cannot legally stop the taking into a State of what is a commodity in commerce. The quart of liquor in Hill's valise was not only allowed by the law of West Virginia, but it was not really "transported in interstate commerce" under the Reed Amendment. When by the Reed Amendment Congress forbade that liquor "be transported in interstate commerce" it used, according to the rules of construction, "transported" and "commerce" with its own definitions of the words, which it had been writing for upwards of forty years. The Interstate Commerce Law says that it applies to common carriers engaged in "the transportation of passengers or property wholly by railroad...." The ordinary meaning of that is (and courts are required to give the usual meaning to common language) that the law relates to passengers paying fare and shipments paying freight: not to articles in a man's valise. With those and like matters only the Commerce Clause and the Interstate Commerce Law have to do. "Transportation" which the carrier is obliged to provide is defined in the law as including locomotives, vehicles, vessels, instrumentalities, and every sort of service "in connection with ... handling of property transported." The idea of transportation contained in that language cannot even by imagination be brought to articles in the valise of a traveler. The ticket which he bought for his passage and the carriage of his trunk covered the only transportation with which Congress had constitutional power to deal. "Commerce" is defined by Congress in the anti-trust laws as "trade or commerce among the several States and with foreign nations...." That is precisely what the ordinary person would take it to be — "trade."

That is what Chief Justice Marshall said in 1824 in Gibbons v. Ogden, 9 Wheaton, 1: "It [commerce] describes commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying out that intercourse."

The great Chief Justice defined "regulation" under the commerce clause as well as commerce. Neither commerce nor regulation as he defined them, and as the present day law defines them, can reach a bottle in a man's valise. Regulation is authorized "for carrying on that intercourse," not for stopping it. Neither the spirit of law nor common sense was followed in the holding that Hill's bottle of liquor was "transported in interstate commerce." The decision in the Hill case wrote into the law what Congress did not put there. Any leaning from the written words should have been toward Liberty and the sovereignty of the State. Why should the Nation, before it got police power by the Eighteenth Amendment, have attempted to punish a man in a State for what the State permitted him to do? How could it have punished him constitutionally? But, constitutionally or otherwise, it punished him.

When the Supreme Court upheld (1891) the Wilson law of 1890 it took pains to forestall the understanding that the Nation had put its hand into the police affairs of the State: it said that State jurisdiction attached to the interstate shipment of liquor in an original package as soon as it had crossed the boundary, not by virtue of the law of Congress, but because the law of Congress placed the property "where jurisdiction could attach." Although that distinction is very much lacking in clarity, there is at least an effort to show that the Supreme Court was trying to avoid upholding interference in local affairs and was sustaining police action only by the State. But from that decision in 1891 to the one in 1919, upholding the Reed Amendment, disposition toward control by Government in this country had grown with swiftness year by year. And in the Hill case the power of the Nation, entirely apart from the State, is distinctly asserted by the Supreme Court:

That the State saw fit to permit the introduction of liquor for personal use in a limited quantity in no wise interferes with the authority of Congress, acting under its plenary power over interstate commerce, to make the prohibition against interstate shipments contained in the act. It may exert its authority, as in the Wilson and Webb-Kenyon acts, having in view the laws of the State, but it has a power of its own, which in this instance it has exerted in accordance with its view of public policy.

If that is not a police regulation exclusively by the Nation of the possession of liquor in a State, what is it?

The United States District Court, the tribunal of first instance, held that "transported" in the Reed amendment means "for commercial purposes." That, as has been shown, was correct. But the trial court's judgment was reversed on the authority of the Pipe Line cases (234 U. S., 548), where it was held that a producer of oil for commercial purposes who transports the oil in his own pipe line from one state to another is moving a commodity in interstate commerce. What reasonable analogy is there between petroleum oil so transported from State to State for sale in the markets of the country and the fusel oil in a quart of whiskey which a man carries in his pocket or valise? If the whiskey is in commerce why are not all the toilet articles in his handbag? Who would argue that the bar of soap or the suit of pyjamas in the valise of a man on a railway train passing from one State to another is a commodity moving in interstate commerce like carloads of petroleum or coal or lumber or wheat? The liquor which the law of West Virginia allowed him to have in his possession and for his use was no more an article in commerce than the bottle of shaving lotion which he carried with it. But even if it were, could Congress stop the transportation of it by a competent and temperate man? Has it power to prevent men from shipping grain, live stock, coal or any recognized commodity of commerce? As whiskey is made from rye and other grains, could Congress, in furtherance of the "public policy" which the Supreme Court never has questioned in a liquor case, and which was therefore sustained in this case, stop the shipping of grain? It has not yet undertaken to stop the shipping of grapes, the movement of which in interstate commerce out of California increased from 28,000 carloads in 1920, of all varieties, the year the Eighteenth Amendment became effective, to 72,849 carloads in 1927, of which about 55,000 were shipped as what have become known in transportation and trade as "juice" or wine grapes, ninety-eight per cent. of which is used in wine-making. New York, Pennsylvania and Michigan produced last year 11,000 carloads of "juice" grapes. As a carload of grapes yields 1,265 gallons of wine, all those shipments rendered, according to a report of the American Railway Association, 83,490,000 gallons, or upwards of one gallon of juice or wine for every man, woman, and child in the United States. In 1917 California grapes sold for $12 to $14 a ton, varying with grade. In 1927 prices ranged from $67 to $87 a ton. The grape-land acreage of California in 1917 was 97,000. It is now 173,691. If Congress possesses the "plenary power over interstate commerce" that the Supreme Court conceded to it in this case, are the people to look for the eventual elimination of grain and grapes from the traffic of the country? [1]


[1] The vineyardists of California expected that the Eighteenth Amendment would destroy their acreage of vines grown for wine-making purposes. A few vineyards were uprooted at first. But soon a new demand arose for wine grapes, the growing of which became more profitable than it had been. The acreage of such grapes has steadily increased since the Eighteenth Amendment became operative. Can Congress, by exerting its so-called "plenary powers," stop the shipping of them?

The grapes are used throughout the country for wine-making in the home. It was for the protection of the home against such practices that a distinguished divine and teetotaller of some years ago opposed absolute prohibition: in the States where he had observed it he found in the homes, among the children, what they (or many of them) might never otherwise meet.


Congress has not "plenary power over interstate commerce." It has only partial power. The Constitution empowers it to "regulate" only. What regulate means has been defined by forty years of practice under "An Act to Regulate Commerce" which became effective in 1887. The very name of the law shows that Congress at that time had no belief in the "plenary power" which the Supreme Court has accorded to it. Decisions of the Interstate Commerce Commission filling 137 volumes of reports disclose no attempt of that regulatory body to stop commerce. On the contrary, it has stopped the States from stopping it. In many instances of destructive rivalry such as that which broke down the government under the Articles of Confederation, described in the quotations from Fiske and Chief Justice Marshall, the Interstate Commerce Commission has made orders thwarting a State from shutting out, by oppressive or discriminative freight rates or regulations, the commodity of another State which competed with its own. This exertion of the power to "regulate" was sustained by the Supreme Court (Houston, etc. v. U. S., 234 U. S., 342) in what is known as the Shreveport case. Moreover, by the Transportation Act, 1920, by which Congress turned back to their owners the railways which it had operated during the World War, it enlarged this power of the Commission to prevent States from stopping, controlling, or burdening interstate commerce.

Further, the Act to Regulate Commerce has long contained a command to railways "to establish through routes and just and reasonable rates" with connecting lines so that commerce may flow as freely as the rivers do; and where any railway company may disregard that command and try to control movement for its own advantage and against the general welfare the law empowers the Interstate Commerce Commission to make an order opening up through routes and prescribing joint rates for the carriers. This power was extended to cover steamship lines connecting at ports with railways. Such orders have been made times almost without number. That illustrates what is meant by the power to "regulate" commerce. It is not the power of stoppage.

So the historical origin of the Commerce Clause of the Constitution, and forty years of interpretation and application by the Government, go to show that until the liquor question came to the fore no one dreamed that "regulate" in the fundamental law could mean "stop." The exclusion of lottery tickets from the mails and from commerce was not analogous. Such tokens of gambling cannot be called commodities of commerce.

The Hill case, in which a man was punished under the Reed Amendment for transporting a quart of liquor for his own use into West Virginia, notwithstanding that the law of the State authorized his act, was followed in January, 1920, in a case (U. S. v. Simpson, 252 U. S., 465) holding that the carriage of five quarts of liquor from Cheyenne to Denver for personal use was "transportation," the thing forbidden by the Reed Amendment. In the Hill case it was held that the quart of liquor was a commodity (like iron, coal, lumber, wheat, live stock) which moved in interstate commerce in violation of the Reed Amendment; in the Simpson case it was decided that transportation in commerce, forbidden by that amendment, had taken place, as if a shipper had moved any of the commodities named. A justification for the decision was that "a number of Federal Courts" had so applied the law "where the transportation was personal and private." But in this case the United States District Court held (257 Fed. 860) that there was no "transportation" under the Commerce Clause and the Interstate Commerce Law. That decision, though correct, was reversed.


Eighteenth Amendment Unconstitutionally Proposed

Finally under the heading of this chapter, the Man and the State were entitled to the benefit of any doubt on the question whether the Eighteenth Amendment was legally proposed by Congress. The Supreme Court held (Prohibition Cases, 253 U. S. 350) that it had been.

Was the vote proposing the Amendment "two-thirds of both Houses," as required by Article V of the Constitution, providing for amendments and specifying how they may be brought about? That was the question.[1]


[1] The same question existed as to the constitutionality of the Volstead Act, passed by Congress as "appropriate legislation" under section 2 of the Eighteenth Amendment for putting that Amendment in operation. President Wilson vetoed the bill on October 27, 1919, because it carried along some of the hard war-time prohibitory regulations "whose objects have been satisfied," he wrote, "in the demobilization of the Army and Navy, and whose repeal I have already sought at the hands of Congress." On the same day "that House in which it originated" proceeded "to reconsider it," in pursuance of Article I, section 7, and repassed it by a vote of 175 yeas and 55 nays. Two-thirds of the 435 members of the House of Representatives are 290, or 115 more than the bill received on repassage. Then it was sent "to the other House," where it received 65 yeas and 20 nays. Two-thirds of 96 Senators equal 65, one more than "two-thirds of that House."

Therefore, under the plain reading of Article V the Eighteenth Amendment was not proposed by "two-thirds of both Houses," and under the plain language of Article I, section 7, the Volstead Act did not receive the votes of "two-thirds of that House" in which it originated. Both the Amendment and the law to enforce it should have been held unconstitutional.


The vote was by more than two-thirds of a quorum, two-thirds of one-half of the members plus one of each House. By section 5 of Article I it is provided that "a Majority of each [House] shall constitute a quorum to do Business." There, plainly, a majority of each House means a majority of all the members. "House" means, wherever unqualifiedly used, all its members. That is in the Article setting up the Legislative Department of the Government, conferring on it powers to make laws, and forbidding it to make laws of several objectionable kinds. The business which a quorum is authorized to do is legislative business; for, as before said, Article I creates and deals with the Legislative Department.

But Article V is four articles removed from Article I. It has no relation to legislation. It deals with a subject altogether different, that of constitution-making. The two Houses acting under Article V to propose an amendment are not the legislative body of Article I which may do business on a quorum. Although Article V calls them "Congress," saying that "the Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution," they are not the legislative body. Thus, the Chamber of Deputies and the Senate in France are called by the Constitution the National Assembly when they sit together to elect the President of the Republic; they are not then legislative bodies.

The proposal to amend need not be signed by the President, the Supreme Court has held (Hollingsworth v. Virginia, 3 Dall., 378), and that has been the practice from the beginning. But by section 7 of Article I every transaction of the legislative body must be submitted to the President for signature:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and, before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

The body proposing an amendment is a constitutional convention making a submission to the States after the manner of the original Convention of 1787. "Whenever two-thirds of both Houses" constituting this convention "shall deem it necessary" an amendment will be proposed. "Two-thirds of both Houses" in Article V means two-thirds of the full membership of each House, just as in Article I "a majority of each [House] shall constitute a quorum to do Business" means a majority of the full membership of each House.

But in upholding the Eighteenth Amendment the Supreme Court of the United States said:

The two-thirds vote in each House which is required in proposing an amendment is a vote of two-thirds of the members present — assuming the presence of a quorum — and not a vote of two-thirds of the entire membership, present and absent. Missouri Pacific Ry. Co. v. Kansas, 248 U. S., 276.

The railway case cited and followed by the Supreme Court had to do with an act of Congress sitting as a legislative body under Article I, one which it was necessary to submit to the President for his signature or veto. It was the Webb-Kenyon Act, which the President had vetoed because, for one reason, it delegated, in his opinion, power over interstate commerce to the States. The bill was repassed over the veto by a vote, not of "two-thirds of that House" in which it originated, as provided in Article I, section 7, but by two-thirds of a quorum, when it was sent to the other and, instead of being "approved by two-thirds of that House," as the Constitution requires, was repassed by two-thirds of a quorum. In holding two-thirds of a quorum to be enough instead of two-thirds of the full membership of each House, the Supreme Court left the legislative field and sought analogous construction in the wholly unrelated field of constitutional amendment.

Why was a search necessary (especially in a non-legislative field) for the meaning of such plain language as "two thirds of that House" in section 7, and more particularly when "House" had just been defined in section 5 as meaning all the members: "a Majority of each House shall constitute a Quorum to do Business," that is, a majority of all the members?

The Supreme Court held that as in the first Congress the first ten Amendments (the Bill of Rights) had been proposed (under Article V, requiring "two-thirds of both Houses"), according to the record, by "two-thirds of the senators present concurring" and by "two-thirds of the members" of the House "present concurring," it followed that in the legislative field "two-thirds of that House" necessary to pass a bill over a veto is two-thirds of the quorum (majority) authorized by section 5 of Article I to pass a bill in the first instance, which number is distinctly not authorized to pass a bill in the second instance (section 7), over the President's veto. On the contrary section 7 clearly requires that "two-thirds of that House" in which the bill originated must repass it, when "it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a Law."

First, language which is plain is not susceptible of "construing" — it must be taken for what it says. "A majority of each [House] shall constitute a quorum to do business," as written in section 5 Article I, to govern the first passage of a bill, is clear. But it is no clearer than the words of section 7 governing the second passing of a bill, over the President's veto:

If he [the President] approve it he shall sign it, but if not he shall return it, with his Objections to that House it shall have originated, who shall enter the Objections at large in their Journal and proceed to reconsider it. If after such Reconsideration two-thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a Law.

Those quotations show that a majority of a quorum may pass a bill in the first place, but that two-thirds of the full membership of each House are necessary to carry a bill over the veto of the President.

Second, there is no record of the number of votes in each House proposing the first ten amendments, upon which the Supreme Court relied in deciding a legislative question in the railway case. As before stated, the records show "two-thirds of the senators concurring," and "two-thirds of the members present concurring" in the House. That language does not follow Article V, which authorizes amendments and which contains no provision respecting "two-thirds of the members present concurring." Article V requires "two-thirds of both Houses." But as the actual number of votes was not recorded, we must assume that the phraseology of the clerks in the records covered two-thirds of all the members of each House (who were very few), for that keeps harmony with the words of Article V.

As Rhode Island and North Carolina did not come into the Union until after the first ten amendments had been proposed (September 25, 1789), the full Congress at that time consisted [1] of only 22 Senators and 63 Representatives, and the whole number of each House might have been present. Two-thirds of each House would have been 15 Senators and 42 Representatives, and it cannot be assumed without proof that as many as 7 Senators and 21 Representatives were absent when there was up for consideration a Bill of Rights, and particularly what became the Tenth Amendment, the lack of which had threatened in Massachusetts, Virginia and some other States the ratification of the Constitution. It is very likely that every member of each House was present except the very sick. At any rate, there is no record to prove that the Bill of Rights was proposed by fewer members than the "two-thirds of both Houses" specified in Article V. But even if there were record, are the Houses of Congress capable of defining their own constitutional power, or is that to be ascertained by the Judicial Department from a reading of the Constitution upon a petition by a citizen of the Republic claiming to have been wronged by some act of Government? When the question was first put to the Judicial Department it placed its decision upon its earlier holding in a case respecting legislation (Article I), which holding it turned on an erroneous conception of what the Houses themselves had done in the beginning in a matter of amendments (Article V).

[1] Norton's "The Constitution of the United States: Its Sources and Its Application," p. 14.

Third, Gouverneur Morris of Pennsylvania, who was in the Constitutional Convention, was made a member of the committee to which the final draft of the Constitution was referred "to revise the stile of and arrange the articles," and it is known that besides adding the Preamble he introduced or modified many provisions. James Madison, who was later in the first House of Representatives and who there formulated the first amendments known as the Bill of Rights, was on that Committee. Morris should be good authority on what they were writing down — what they put down so clearly. In Spark's "Life of Gouverneur Morris" (vol. 3, p. 198) there is given the answer of Morris in 1804 to the inquiry of a senator as to whether two-thirds of the whole membership were necessary to propose an amendment. Going over the various provisions of the Constitution respecting numbers, he said that there are "six cases in which the majority of a quorum cannot act" — in the election of a President by the House of Representatives (see Article II, section 1, and the Twelfth Amendment), in the approval of treaties (Article II, section 2) by the Senate, and in the conviction by the Senate (Article I, section 3) in a case of impeachment; and then he gave the other three:

There remain three cases in which two-thirds of the whole number are required. These are, first, the expulsion of a member; secondly, the passage of a law disapproved by the President; and, thirdly, amendments to the Constitution. In these three cases provision is carefully made to defend the people against themselves, or, in other words, against that violence of party spirit which has hitherto proved fatal to republican government.

That is, in the legislative field (a veto being involved) "two-thirds of that House" and in the amending field "two-thirds of both Houses" mean one thing, as the language unmistakably imports, two-thirds of the full membership, not two-thirds of a quorum. The Supreme Court in the railway case, involving the overriding of a veto, wrote "quorum" into Article V. Later it used that decision as a precedent and held, in the case of the Eighteenth Amendment, that two-thirds of a quorum of both Houses may propose an amendment to the Constitution.

Had the Supreme Court followed in the railway case the plain language of the Constitution (Article I, section 7) requiring "two-thirds of that House" to repass a bill after veto, the Webb-Kenyon Law, a piece of meddling in the field of the State, would have been held void because of disregard by Congress of a constitutional specification. And had it, in passing upon the validity of the Eighteenth Amendment (253 U. S., 350), refrained from "construing" words as plain as "two-thirds of both Houses," the proposal of that amendment would have been held unconstitutional.

Even were there record proof (which there is not) that the first ten amendments were proposed by two-thirds of a quorum in each House, or by fewer than two-thirds of all the members of each, that would not be a precedent to control a judicial conclusion, for the scope of the power granted by the Constitution to a body is not to be determined by the body itself. That is a judicial question to be resolved by the Court. It never was raised in the Supreme Court until the validity of the proposal of the Eighteenth Amendment was questioned. It should then have been determined from the language of the Constitution without any regard for any interpretations by which Congress may have (unwittingly or otherwise) conferred, seemingly, power upon itself. While ambiguous statutes are often construed in the light of long application by the officials whose duty it is to carry them into operation (tax laws, for example), there is no ambiguity in "two-thirds of both Houses" which Gouverneur Morris and others so carefully wrote. Moreover, a poorly written or ambiguous law does not affect the constitutional distribution of governmental Power which was made for the protection of Liberty.

"As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey," wrote Chief Justice Marshall 104 years ago (Gibbons v. Ogden, 9 Wheaton, 1), "the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense and to have intended what they have said."

Had this rule been followed the Eighteenth Amendment would have failed, and before it could be proposed again and ratified the people would have had time to think and most of the remaining States would have enacted prohibitory laws. But such a decision against the action of Congress and forty-odd State legislatures would probably have brought fanatical denunciation of the Supreme Court and calls for the abolition of it[1] so that "the people" (usually the minority) could have their willful way, the very thing which the people made the Constitution to prevent themselves from having. The Constitution was drafted in intellectual calm to be a haven in time of storm. The makers of it had gone through all the distresses that are produced by tyrannical (because centralized) government, by no government, by indefinite and therefore weak government, by local jealousies, by provincialism, and by narrow-mindedness exhibited in many forms. Against those they tried to guard in the Constitution which they prepared for "ourselves and our Posterity."

[1] The combination of violence and incapacity in the attack on the Judicial Department in the Socialist Party platform of 1912 and the Progressive Party platform of that year, and in the so-called Progressive Party platform of 1924, recalls pages in the history of the French Revolution.

However, most of the people who knew that have died. A generation of constitutional illiterates has been reared by the schools, the colleges, the universities, the Fourth Estate, and the Bar. When the mass of the people are uneducated in constitutional principles Congress is necessarily so, a statement which finds illustration in the child-labor laws, and the other laws reviewed in this volume, the attempt to regulate boards of trade in the States, to tax the salaries of Federal judges, to take private property for public use without fully paying for it, to punish by legislative malediction rather than by jury trial, to make men bear witness against themselves, to exercise the un-American function of a court and employ it like a Star Chamber, to dominate the Executive Department, to dictate to the Judicial Department how to decide cases, to take supervision of childbirth throughout the land, and more.

Such a people cannot encourage and protect the Judicial Department, the arm of Government without which Liberty as we have known and enjoyed it cannot be maintained. If the people show indifference to the steady abdication of local government and the corresponding centralizing of non-national powers in the Nation, which is, as Jefferson and Madison wrote, "precisely the definition of despotic government," how in reason can it be expected that the courts will stand with unflinching firmness against the disintegration of the constitutional structure?

This concludes a review of the leading decisions respecting liquor, from the Mugler case in 1883 down to the case (Lambert v. Yellowly, 272 U. S., 581) holding that it was "appropriate legislation" under the second section of the Eighteenth Amendment when Congress enacted a law controlling prescriptions by physicians. The Yellowley case was critically examined at the outset. Other cases arose in the lower Federal Courts and some of them reached the Supreme Court, but nothing would be made clear by reviewing them. On the contrary, confusion might result. The land-mark decisions have been carefully explained.

The purpose of this review is to make it clear that in the course of one of the most radical and momentous changes in the history of the Government of the United States there was no thought in legislation and no adequate exposition in judicial decisions of our constitutional philosophy, none of the British theory of Liberty under law which we inherited, none of the rights of man dealt with in the Declaration of Independence, none of the superiority of the rights of one to the wishes or will of the majority, none of the meaning of the Liberty which is protected by the Fifth Amendment from encroachment by the Nation and shielded by the Fourteenth from aggressions by the State.

In the following chapter will be examined some leading instances of legislative usurpation or misuse of power upheld by the judiciary with relation to other subjects.




Mugler Case as Precedent

In the preceding chapter reference was made more than once to the peril of the Mugler case as a precedent, and the statement was ventured that in its consequences as an authority for future legislative incursions on Liberty the decision might be worse than in its immediate effect.

"That which is now supported by example," wrote the Roman historian Tacitus just after the dawn of the Christian Era, "growing old, will become an example itself."

It has been seen that the Mugler decision was "supported by examples" far-fetched and irrelevant. The extended examination of the cases was made to put it beyond question that they contained no precedent for the holding that the operation of the police power of a State for the proper protection of a class in need of help, and whose weakness is inimical to social and civil welfare, may extinguish altogether the Liberty of those whose conduct does not conduce to the conditions which the law seeks to remove.

Instead of a logical line of reasoning to demonstrate that that can be done without violation of the Constitution of the United States, the decision in the Mugler case contained only citations out of point and the holding in effect that Government is arbitrary power.

That decision has been cited by the Supreme Court itself in later cases over 117 times, and the lower Federal courts have used it more than 122 times. It was a decision in "a good cause," such a decision as Shakespeare's Portia refused to make when she was besought by Bassanio "to do a great right, do a little wrong."

"'Twill be recorded as a precedent," she answered, "and many an error, by the same example, will rush into the State."

Within four months of the decision of the Mugler case in December, 1887, the Supreme Court used it (April, 1888) as a precedent for upholding (Powell v. Pennsylvania, 127 U. S., 678) a law of the Keystone State forbidding the making and selling of anything to be used as butter or in lieu of it out of any substance "other than that produced from unadulterated milk or cream." The law was designed to prevent, in behalf of farmers, the use of oleomargarine. It was not the purpose to prevent the palming off on the consumer of oleomargarine for butter, or to prevent the selling of an article containing deleterious substances. The object was to destroy the manufacture of a wholesome article of food, made from pure animal fats, put on the market without deception, and believed by users to be superior to carelessly handled butter. The rights of such users were ignored as well as the Liberty of the manufacturer. Of course, the police power can and should prevent fraud in the manufacture and the sale of foodstuffs. But that is not what this law was about. It was a violation of a command of the Fourteenth Amendment for equality of treatment: "Nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws." It was intended to favor one class of persons and disfavor another.

The Supreme Court of Pennsylvania sustained the law. A like law in New York had been held unconstitutional by the court of last resort in that State.

When the case from Pennsylvania reached the Supreme Court of the United States that tribunal receded farther from conflict with the Legislative Department of a State than it had done in the Mugler case. Against the "policy" of the State it could see no Liberty in the citizen to eat oleomargarine if he wanted it and as he was rapidly doing, preferring it to much of the butter of commerce. Nor could it find any Liberty in the manufacturer to make a clean and wholesome article of food from edible animal fats and sell it without deception to the man who should have Liberty to use it instead of butter. The denial to one class for the advantage of another in violation of the Equal Protection Clause of the Fourteenth Amendment seemed to be immaterial. From the following extract from the opinion of the Supreme Court it appears that the judgment of a legislature may be "the supreme Law of the Land," instead of the Constitution of the United States, and that when it declares good food bad it is bad regardless of the fact and without respect to anybody's Liberty:

Whether the manufacture of oleomargarine, or imitation butter, of the kind described in the statute, is, or may be, conducted in such a way, or with such skill and secrecy, as to baffle ordinary inspection, or whether it involves such danger to the public health as to require, for the protection of the people, the entire suppression of the business, rather than its regulation in such manner as to permit the manufacture and sale of articles of that class that do not contain noxious ingredients, axe questions of fact and of public policy which belong to the legislative department to determine. And as it does not appear upon the face of the statute, or from any facts of which the court must take judicial cognizance, that it infringes rights secured by the fundamental law, the legislative determination of those questions is conclusive upon the courts. It is not a part of their functions to conduct investigations of facts entering into questions of public policy merely, and to sustain or frustrate the legislative will, embodied in statutes, as they may happen to approve or disapprove its determination of such questions. The power which the legislature has to promote the general welfare is very great, and the discretion which that department of the government has, in the employment of means to that end, is very large. While both its power and its discretion must be so exercised as not to impair the fundamental rights of life, liberty, and property; and while, according to the principles upon which our institutions rest, "the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself"; yet, "in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of public opinion or by means of the suffrage."

While wiping away absolutely the right of the eater and of the manufacturer, the Supreme Court makes one of those unavailing references to constitutional safeguards to which attention has been called in other cases. Of the State it says that "while both its power and its discretion must be so exercised as not to impair the fundamental rights of Life, Liberty, and Property," it may nevertheless prevent one man from making and another from eating a perfectly wholesome article of food. After that, where are "the fundamental rights" which the Supreme Court had in mind? Why should the Constitution be flourished like an oriflamme in such a case?

The Supreme Court says that it cannot look into the facts and place its judgment against that of the legislature. But it must do so when the law turns on the right. In this case proof was offered in the court below from chemists and others that the oleomargarine was made from pure animal fats and was perfectly wholesome. But the evidence was ruled out as incompetent because the act of the legislature did not recognize wholesome oleomargarine as wholesome. Doubtless what it did recognize was that it was selling well. Can one man make and another man buy and eat a clean and wholesome article of food — can that be prevented under the Constitution of the United States? That is not a question of policy: it is a question of whether the act of a legislature or the Constitution of the United States is "the supreme Law of the Land."

Again, the Supreme Court says that "the power which the legislature has to promote the general welfare is very great, and the discretion which that department of the government has, in the employment of means to the end, is very large." It has discretion within its constitutional power, but not beyond it. Constitutional power is certainly exceeded by a law preventing an American from eating a substitute for butter, whether it be oleomargarine or marmalade. The Constitution was written to abolish discretion at large. The British King and Parliament both had too much discretion. When the Fourteenth Amendment forbids a State to "deprive any person of Life, Liberty or Property without due process of law," or to "deny to any person within its jurisdiction the equal protection of the laws," that excludes discretion as to those rights.

Discussing "the rule of law" in English-speaking countries in comparison with the "very large" — using the Supreme Court's words — discretion of Government in other lands, Dicey wrote (Law of the Constitution, 182):

A study of European politics now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority on the part of the government must mean insecurity for legal freedom on the part of its subjects.

"Legal freedom," as Dicey terms it, is the freedom secured (not granted) by law, by the Constitution in this country, "the supreme Law of the Land." That freedom becomes insecure when the field of it is determined by the Legislative Department instead of by the Judicial. This Nation was the first to establish such a Judicial Department, and that was done because, as Jefferson said, "an elective despotism was not the government we fought for." It was the intention that the Judicial Department would apply the constitutional guaranties of the Man against "an elective despotism" like the legislature of Pennsylvania and not leave the legislature to determine in a kingly way the extent of its own power.

In a dissenting opinion Justice Field pointed out the possibilities of such a holding:

If the first question presented can be answered, as it has been by the court, in the affirmative, I do not see why it is not equally within the competency of the legislature to forbid the production and sale of any new article of food, though composed of harmless ingredients, and perfectly healthy and nutritious in its character; or even to forbid the manufacture and sale of articles of prepared food now in general use, such as extracts of beef and condensed milk, and the like, whenever it may see fit to do so, its will in the matter constituting the only reason for the enactment.

Judge Dillon in his work on "Municipal Corporations," and also in "Law and Jurisprudence of England and America," page 203, severely criticizes this decision:

We cannot but express our regret that the constitution of any of the States, or that of the United States, admits of a construction that it is competent for a state legislature to suppress (instead of regulating) under fine and imprisonment the business of manufacturing and selling a harmless, and even wholesome, article, if the legislature chooses to affirm, contrary to the fact, that the public health or public policy requires such suppression. The record of the conviction of Powell for selling without any deception a healthful and nutritious article of food makes one's blood tingle.

In the foregoing quotation Judge Dillon emphasizes the difference between regulation and suppression. The State may watch the manufacture of oleomargarine and make all regulations which may seem necessary to prevent deceptive sales and the use of deleterious materials. That would not destroy the right of anybody. But when it comes to taking away a right of an American instead of regulating the use or enjoyment of it — that the Constitution forbids, and to preserve that right by enforcing the constitutional guarantee the Judicial Department was established.

Of the theory of the Supreme Court, that it is not a part of the functions of the Judiciary "to conduct investigations of facts entering into questions of public policy merely," Judge Dillon said:

I appreciate, of course, the difficulties in the way of the courts when asked to disregard the false recital in the legislative act, and I recognize the further fact that the courts cannot supply a panacea for legislative misdoings; but still I think that invasions of fundamental rights, such as the right to pursue what is in fact a lawful business, ought not to be dependent upon the epithets with which a legislative majority may see fit to characterize it.

When the makers of the oleomargarine and their chemists offered to prove that the commodity was clean and edible, and when the sales proved its popularity with consumers, if there was any doubt remaining it should have been resolved, not for "an elective despotism," but for the Liberty of the Man.

The case of Powell v. Pennsylvania, the decision of which is based squarely on that in the Mugler case, has been examined at length to show the development in practice of ill-considered precedents. As far as previous adjudications were concerned the Mugler decision rested on nothing; and as for reasoning in the opinion on constitutional principles, there was a dearth, if not an entire absence, of it. Yet the case is quickly seized upon to support the action of "an elective despotism" far less defensible than that of the first. For oleomargarine would not make men drunk or insane, or impoverish them and their families, or otherwise imperil them as intoxicating liquors do endanger some persons. Between the two cases there was no similarity to make the first an authority for the second. Their only likeness was in the fact that the legislatures of two States had exercised authority without consciousness of the existence of the Fourteenth Amendment or of "those general principles which are supposed to limit all legislative power."

Another reason for dealing at length with the oleomargarine case is that at the outset it shows unwarranted the sense of security which the Supreme Court expressed nearly twenty-nine years later respecting the use as precedents of decisions in liquor cases. In the case of Clark Distilling Company (242 U. S., 311), reviewed in the preceding chapter as upholding the Webb-Kenyon law prohibiting under the Commerce Clause the shipping of liquor into a State for use contrary to local legislation, the Supreme Court admitted that in liquor cases it had already gone beyond what would be constitutional with respect to any other subject:

The fact that regulations of liquor have been upheld in numberless instances which would have been repugnant to the great guarantees of the Constitution but for the enlarged right possessed by the Government to regulate liquor, has never, that we are aware of, been taken as affording the basis for the thought that the Government might exert an enlarged power as to subjects to which under the constitutional guarantees such enlarged power could not be applied. In other words, the exceptional nature of the subject here regulated is the basis upon which the exceptional power exerted must rest and affords no ground for any fear that such power may be constitutionally extended to things which it may not, consistently with the guarantees of the Constitution, embrace.

As just shown, "the enlarged right possessed by the Government to regulate liquor" had already been further enlarged to take in a perfectly wholesome and harmless article of diet. Notice that in the quoted words "regulate" is used as a synonym for destroy. Because the Liberty of the Man may require some regulation in behalf of the general welfare, destruction cannot be included in regulation. This point the Supreme Court never has touched.

The Supreme Court did not explain whence comes what it described as "the enlarged right possessed by the Government to regulate liquor." No right or power is possessed by the national government except what is granted to it by the Constitution. No clause in the Constitution gives Government an "enlarged right" to deal with liquor. Nor does any provision of restraint on Power written in the Bill of Rights (which is all restraint) or in the body of the Constitution say or imply that the restraint shall be less operative in liquor cases than in others. That is, when the Fifth Amendment says that the national Government shall not put a man twice in jeopardy, shall not compel him to be a witness against himself, and shall not deprive him of Liberty without due process of law, it says so without the slightest suggestion that those interdictions are not to have the full force and effect in liquor cases that they do in others. Nor does the Fourteenth Amendment, in forbidding that "any State deprive any person of Life, Liberty, or Property without due process of law," carry any intimation that in any case whatever the language of restraint upon the State shall be meaningless.

The simple fact is. as the preceding chapter demonstrates, that what the Supreme Court calls "the enlarged right possessed by the Government to regulate liquor" is not a constitutional right at all.

Contrary to the foregoing statement of the Supreme Court, the briefs of counsel in several cases disclose predirections of the loss of Liberty in other fields as a result of these precedents. Since the decision in the case of the Distilling Company, in which it was held that a railway company could not be compelled to transport liquor into West Virginia because the Webb-Kenyon law forbade that, it has been decided that the possession of liquor is illegal even in a State permitting possession, that a bottle in a passenger's valise is transported in interstate commerce, and that liquor carried by a traveler for his own use is commerce. Finally, it has been held that the reputable and competent physician, who has done nothing to forfeit his Liberty, shall lose it nevertheless.

It is never safe for the uninspired to prophesy. The feeling of the Supreme Court that its decisions in liquor cases would not be employed in others had already been discounted twenty-nine years before in the oleomargarine case. Moreover, public opinion changes. No one can foresee what may be the towering peril of to-morrow in the view of some aggressive group holding the State legislatures and the Congress under siege. When the drinking of liquors was not believed to be an evil at all — when the Puritans and other religious people along the Atlantic seaboard consumed rum more freely than they used water — the great public fear was of witchcraft. But the witches long since ceased from troubling, and now at Salem and other places of early "regulation" the "scoff-law" is pursued by the successors of the witch-hunter. That illustrates the profundity of the great American idea, that Government should always let the Man alone.

Further, when the Supreme Courts of three States which had undertaken to control the acquisitions of the human mind upheld the legislation of war time and later against the German language as a "policy" with which the Judicial Department could not interfere, and when two of the justices of the Supreme Court of the United States were of the like opinion, who can say that the day is distant when constitutional barriers against Power will be so far broken down that laws will be sustained commanding schools to cast out works on evolution and to substitute therefor the Book of Genesis?

All through the cases the Supreme Court uses regulate and prohibit interchangeably. It was failure to grasp and apply with resoluteness this simple constitutional principle in the Mugler case that prepared and emboldened legislatures and courts to regard the word Liberty in the Fifth Amendment and Liberty in the Fourteenth as mere redundancies of language.


Legislators Using Other People's Money

In January, 1911, the Supreme Court of the United States upheld (Noble State Bank v. Haskell, 219 U. S., 104) an act of the legislature of Oklahoma as disregardful of the Liberty and Property protected by the Constitution as the law of Pennsylvania respecting oleomargarine had been.

If there was one duty in which a few of the new States had been more delinquent than in any other it was in that of protecting their citizens from what came properly to be called "wildcat banks." They granted to any group who could raise a small capital a charter to open a bank and receive the money of the people on deposit. No examination was made to ascertain whether the applicants had capacity as bankers or character as men. After the bank began operations it was visited occasionally by a bank examiner who usually knew nothing about banking and who secured his place as an employee of the State because of his mechanical skill in politics. In one State the so-called examiner did not discover until after the swindling of the people that the safe was painted on the wall. Having through a long term of years, marked by the most deplorable losses to poor people, shown a lack of vigilance and capability in regulating banking, some of the delinquent States conceived the idea of making capable and honorable bankers, pay the obligations of the incompetent or rascally whom they had authorized to engage in banking and receive the people's money.

Oklahoma enacted such a law. It provided for a Depositor's Guaranty Fund to be established by a levy of one per cent on the deposits of all the banks, out of which the debts of the unfortunate, incompetent or dishonest banks should be paid. Having created the banks, reason and fairness would suggest that the State itself assume financial responsibility for the capability and character of its creatures. But some States, like some individuals, prefer to operate with other people's money.

When called upon to help pay depositors in a competing bank which the State of Oklahoma had not prevented from becoming insolvent, the officers of a well-managed and successful bank resisted on the ground that the Fourteenth Amendment says that "no State shall ... deprive any person of Life, Liberty or Property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." When the laws did not oblige solvent merchants to pay the debts of bankrupt merchants, and successful manufacturers to pay the creditors of unsuccessful competitors, naturally a reasoning banker would conclude that the Equal-Protection Clause of the Fourteenth Amendment had been violated by the legislature; and he would feel also that the summary treatment given by the act took from his "property without due process of law."

Not so. Where the line should be drawn to distinguish banking from other forms of business not thus burdened the Supreme Court of the United States regarded as "a futile question." Of course, mercantile, manufacturing or other business concerns do not receive the money of the people in the way that banks do; but it is well known to the business world, to the Bar, and particularly to the courts of bankruptcy in cities, that many business "failures" of State-created or State-licensed companies are planned from the beginning and that they leave helpless as many creditors, large and small, as there are depositors in a Main Street bank.[1] Regardless of this, however, and of the Equal-Protection Clause, the State, by mere proclamation or fiat, took for its uses the money of one man to pay the debt of another. The State is forbidden to take "property without due process of law." If legislative fiat is to be due process, why did our forefathers set up the Judicial Department?


[1] The United States Circuit Court, which held a like law of Nebraska unconstitutional, and whose holding was reversed by the Supreme Court of the United States, pointed out many instances of insolvency which work as great hardships to the people as the failures of banks. The solvents in those fields are not asked to pay the debts of their insolvent competitors.

The United States District Court of Kansas held unconstitutional a similar law of that State. The decision was reversed.


In upholding the legislation the Supreme Court admitted in part the contention of the bank:

There is no denying that by this law a portion of its property might be taken without return to pay the debts of a failing rival in business.

Even so, that, with the development of thinking, becomes due process:

In short, when the Oklahoma legislature declared, by implication, that free banking is a public danger and that incorporation, inspection, and the above-described co-operations are necessary safeguards, this court certainly cannot say it is wrong.

With any policy of a State as a policy the courts have, of course, nothing at all to do. But with legislation which declares "by implication that free banking is a public danger" the courts have everything to do because (1) the high record of banking in many States shows that the implication is not true, and (2) consequently the taking of one banker's money to pay the obligations of another violates constitutional right. As the legislature did not say directly that "free banking is a public danger," the Supreme Court might have left it at that and not set up the danger by implication. But had the legislature in plain terms, instead of by implication, declared free, capable, and intelligently supervised banking to be a public danger, it would nevertheless be untrue. Everybody else knows that — why should the Supreme Court remain in the dark about it?

"All others can see and understand this," said the Supreme Court in the Child Labor Tax case (259 U. S., 20, 37), meeting the contention that the act of Congress was a real revenue law and not an impudent invasion by Congress of the States; "how can we properly shut our minds to it?"

If "free banking is a public danger," then the remedy is, not to make solvent men pay its losses, but to license it with more strictness and to regulate it with vigilance. There never was "free banking" anywhere: every bank was opened under a law of the legislature. But there was some unregulated banking, and some men who were not bankers were licensed by the State to operate banks.

The law of Oklahoma itself clearly recognizes that banks generally are safe: its preparation is for exceptional instances, for only one per cent of deposits. There is an implication that free and regulated banking is not a public danger — that it is 99 per cent sound.

The point here is that where there is room for any doubt the prohibitions of the Constitution, in this instance of the Fourteenth Amendment, should be liberally enforced, as was shown in the preceding chapter by a quotation from a decision holding void a stamp tax on an export bill of lading because the Constitution forbids a tax on the exports of any State. According to that the Equal-Protection Clause of the Fourteenth Amendment, and the command that no State "deprive any person of ... property without due process of law," are to be liberally construed to make them effective and to protect the Man against Government. It should never be lost to sight for an instant that all the Constitution is about is to protect the Man against Government and his fellow men. Whenever possible Government is to let him alone. That is the American idea.

On the difficulties met in such relations the Supreme Court said:

We have few scientifically certain criteria for legislation, and as it is often difficult to mark the line where what is called the police power of the States is limited by the Constitution of the United States, judges should be slow to read into the latter a nolumus mutare [we are unwilling to change] as against the law-making power.

In this case the question was of reading out of the Constitution the barrier of the Fourteenth Amendment against the States. It is never necessary to read anything into the Constitution: it is quite sufficient.

"We are unwilling to change" was put into the Constitution in the beginning for the judges by the last words of Article VI, which require that "judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation to support this Constitution." The judges cannot be willing, therefore, properly, to change the Constitution. In 1858 the Supreme Court pronounced this provision of Article VI of surpassing importance (Ableman v. Booth, 21 Howard, 506) in a case in which a State court (being willing to change the Constitution) undertook by habeas corpus to deliver a man from the custody of an officer of the United States:

This is the last and closing clause of the Constitution, and inserted when the whole frame of government, with the powers hereinbefore specified, had been adopted by the Convention; and it was in this form, and with these powers, that the Constitution was submitted to the people of the several states for their consideration and decision.... In the emphatic language of the pledge required, it is to support this Constitution. And no power is more clearly conferred by the Constitution and laws of the United States than the power of this court to decide, ultimately and finally, all cases arising under the Constitution and Laws.

In that case the Supreme Court did not feel that it was writing into the Constitution a nolumus mutare as against the power of the State. As previously observed, everything needful to keep powers in balance is in the Constitution, and particularly the nolumus mutare to the judges in the oath which it requires of them. The judges would better leave changes in the Constitution to be worked out under Article V, authorizing amendments. As too many changes have already been made under that Article, the volunteer and unauthorized aid of the judges is very undesirable.

The danger lies in reading out of the Constitution its substance, especially in favor of the law-making power, the "elective despotism" which its framers feared for many sufficient reasons. On reading out of the Constitution provisions put there to hold Government where it belongs Chief Justice Marshall said:

To what purpose are powers limited, and to what purpose is that limitation committed to writing [in the Constitution], if these limits may, at any time, be passed by those intended to be restrained?

So the bankers in this case felt about the Equal-Protection Clause and the warning to the State that it do not take the property of "any person ... without due process of law."


Public Taking Private Property

Another case exhibiting the penchant of State Governments to do good with other people's money was decided (Erie Railroad v. Board, 254 U. S., 394) in January, 1921. The Board of Railroad Commissioners of New Jersey ordered track elevation over fourteen street crossings and construction under one crossing in Paterson, all crossings within a few blocks. That would make necessary the reconstruction of switch tracks and spur tracks serving manufacturers and industries. The cost would be over $2,000,000. As the company claimed to be financially unable to meet the expense, and as it believed the order one which would take private property for public use without due process of law, it appealed to the courts for protection.

The Supreme Court of the United States sustained the order as within the police power, but it did not leave the property-owners entirely without hope:

If burdens imposed are so great that the road cannot be run at a profit, it can stop, whatever misfortunes the stopping may produce.

It is at least something to stockholders to be permitted thus to abandon a sunken investment and not be required to assess themselves indefinitely to serve the people. For in the case on which the foregoing language was based a State insisted that a railway must be operated after the lumber traffic for which it had been constructed had been exhausted and it had ceased to earn operating costs, to say nothing about dividends to the stockholders. This decision took for a precedent a case decided (1914) seven years earlier holding a railway company obliged to construct a bridge made necessary by the opening of a canal connecting two lakes in a city park. As the amount there involved was only $17,515, of which $2,544 was for ornamental purposes, the case does not look so bad. But, according to the principle stated later by the Interstate Commerce Commission, it appears just as large, for the work was made necessary, not by the railway company, but by the City Beautiful.

Such cases make clear how irrational Government can be, and how accurately Jefferson described some of its activities as "mischief," from the doing of which, he said, it should be bound down "by the chains of the Constitution."

The problem, which is the theme of this book, is how to keep it chained after it has once been bound. The Judicial Department was created for this purpose; but without the support of an educated people it cannot in reason be expected to stand forever against the unconstitutional activities of forty-eight State legislatures, the doings of which are too often upheld by the elective judges of the States.

The Board of Law Examiners of an eastern State, in which is situated one of the great universities with a celebrated law school, recently asked applicants for admission to the Bar only four questions on constitutional government, and they in no degree dealt with principle or philosophy: (1) When was the first amendment made, (2) how many amendments before the Civil War, (3) what amendments were in consequence of that War, and (4) how many amendments since, naming them. Evidently the examiners assumed that the graduates of the law school could not pass a thorough examination, such a search as every eighth-grade school should prepare boys and girls to stand. It is not unfair to say that the foregoing test is a specimen of what is done by bar examiners throughout the country, even more thorough than some States apply. When lawyers are admitted to the Bar without adequate instruction in constitutional principle (as they too generally are), then it is not to be expected that lawyers in State legislatures will oppose intelligently such measures, for example, as the German language acts, or that lawyers raised from such a Bar to judgeship on the Bench of the State will be able to see why constitutional Liberty is insulted by such laws. Yet one of the charges laid by demagogues against the Supreme Court of the United States is that it too often reverses the supreme courts of States. And the Supreme Court of the United States has declared that if State commissions and courts would do their duty with more intelligence and courage its calendar would be much reduced. That is absolutely true, as every volume of Supreme Court reports bears witness. With the Bench and Bar thus lacking, what can be expected of the press and the people? In short, what is the prospect of self-government?

If Bar examiners in the States would ask applicants for admission to quote the clause in the Constitution which grants (or even implies) power to Congress to legislate on maternity and appropriate public funds to establish itself as general supervisor of childbirth, they would be getting at some of the philosophy of our government, not only, but also dealing with dangerous actualities. Under what provision in Article I of the Constitution, establishing Congress, naming its powers, and imposing restrictions, did a senator introduce a resolution that the Supreme Court of the United States (created and empowered as an independent Department by Article III) should not hold an act of Congress violative of constitutional limitations unless seven of the nine justices so vote? Under what clause does another senator propose to strip the Supreme Court of a part of the equity power vested in it by the Constitution? Where does another senator find authority for a bill to prescribe procedure in Federal courts in jury cases? Where did Congress get power to enact the Cotton Futures Law, the Warehouse Law, the Cooperative Marketing Law? While under the Commerce Clause of the Constitution there was probably power in Congress to establish the Department of Commerce and put a Secretary of Commerce in the Cabinet, what constitutional authority had it for setting up a Department of Labor and giving the head of it a seat in the Cabinet? If Bar examiners would draw some of their questions from the constitutional life of the time they would compel law schools to give to coming men instruction not only more interesting, but also more suited to the needs of an era of scrambled ideas and cowardice in public life. Even if the schools should continue in their failure to teach sufficiently constitutional government, the Bar examiners can be instrumental in pervading the country with a leaven which would improve the whole lump.

The reports of the Erie Railroad to the Interstate Commerce Commission show that at that time it was in poor financial condition. Yet, as it was serving New York, New Jersey, Pennsylvania, Ohio, Indiana and Illinois, a suspension of operation would have been damaging to vast populations. So the alternative suggested in the decision was not workable.

While the duty of a railway company to open crossings and keep them open is a continuing one, that should apply to ordinary and not extraordinary conditions. When cities encourage the massing of population and business in tall buildings, and otherwise produce congestion, the condition is not chargeable to a railway, nor is the entire expense of relieving it properly a burden on the payers of freights in many States. The railway did not make the congestion. Its continuing duty in the law to keep crossings open was placed upon it generations before such crossings as those in Paterson were dreamed of. A city should recognize its partial if not complete responsibility for the situation and bear at least a portion of the expense. To take by order of a board over $2,000,000 from a railway company for the safety of the people within a few blocks, where the peril was not caused by the company, is very much like a denial of due process. Three dissenting justices evidently had this view. Of course, it is often difficult, as the Supreme Court has frequently said, to draw the line precisely; but the rule should be in such cases to give the doubt to the limitation on Power — to the Property-Clause of the Fourteenth Amendment rather than to the State, particularly as the Amendment was written specially to hold the State in check.

As a railway company can meet such costs only by freight rates and passenger fares, numerous cities have put local improvements on people throughout the country who could have no legal interest in the matters. Seeing the extent to which the City Beautiful and the City Reconstructed were carrying their thriftiness, the Interstate Commerce Commission issued a warning in 1925, in a case (101 I. C. C., 647) where a city planning commission, a "body charged with the systematic development and beautification of the city," procured the filing of a petition with the Interstate Commission for a union station, with the relocation of the main line of one road and the re-arrangement and relocation of tracks of other carriers. The State corporation commission filed the petition willingly, precedents indicating that it would be easy to get the work done with other people's money. The petition was dismissed on the ground that the Commission was without power under the law to order the construction of a union station, the railways having the right to provide adequate facilities for the public according to the best judgment of their managers. Recommending that the interested parties try to agree, the Commission, which had been given control of capital expenditures with strict supervision of accounts, threw out this advice:

The future as well as the present must be looked to, and the railroads should stand willing to make reasonable expenditures to provide needed facilities and safe-guards. The State and municipal authorities should bear in mind that the City will be the principal beneficiary of a plan having for its purpose the things adverted to above, and that this being so, the railroad should not be expected to bear more than a reasonable and fair share of the financial burden.

So, notwithstanding the decision of the Supreme Court in the Erie case, the farmers, who pay to railways relatively high freight rates on their grain, live stock, fruits, agricultural implements, and supplies, will probably no more be charged with relieving congestion which tall buildings have created in cities, an expense which the owners of the buildings and the other local taxpayers should rightly carry.

This case, like the oleomargarine case and the bank case, illustrates how very ruthless Government can be and suggests the wisdom of the writers of the Constitution in placing checks upon it. They knew that, uncontrolled, it would go from bad to worse.


Congressional Invasion of Judicial Department

A case in which the Supreme Court of the United States permitted the ever-reaching Legislative Department to encroach upon the Judicial Department was decided (Michaelson v. U. S., 266 U. S., 422) in 1924.

A bill which the Circuit Court of Appeals said was drafted for special interests (as the unconstitutional child-labor laws were enacted for one group of lobbyists, the Webb-Kenyon law and the Reed amendment for other vote-controlling groups, and the Maternity law was for others) provided that where any person should disobey any writ of a District Court of the United States or of a court in the District of Columbia and the act should be a criminal offense under a statute of the United States or a law of the State in which the act was done, then he should be proceeded against as in the statute provided, and, upon demand, he should be entitled to a trial by jury.

Michaelson left the employ of a railway company with others who went on strike in Wisconsin. He disobeyed an order of the District Court of the United States by intimidating workers. When cited by the court for contempt of the order (not for disobedience of the law of the State) he demanded under the State law a jury trial, which was denied, and he was punished by the Court.

That action was sustained (291 Fed., 940) by the Circuit Court of Appeals of the Seventh Circuit, which held (1) that Michaelson had ceased to be an "employee" under the Clayton Act, for which reason it did not apply to him, and (2) that in attempting to strip courts of equity of their powers the Clayton Act was unconstitutional. It stated that as Article III, section 2, says that "the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States," and under treaties, Congress is as powerless to destroy trial by chancellor (without jury) in equity cases as it is to destroy the trial by jury which the Constitution guarantees in law cases.

Meeting the contention that as Article I, section 1, says that "the judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish," Congress is thereby empowered to control the United States District Courts which it has established, the Circuit Court of Appeals said:

Viewing the inferior courts, and also the Supreme Court as an appellate tribunal, the agency to exercise the legislative power of the United States [Congress] can, as a potter, shape the vessel of jurisdiction, the capacity to receive; but, the vessel having been made, the judicial power of the United States is poured into the vessel, large or small, not by Congress, but by the Constitution.

That is not only very logical, but it is also immensely practical. For if Congress could, whenever the growth of the country requires the establishing of what the Constitution terms "inferior courts," manufacture one to suit its own notions, after the manner of the immortal George III and some of his predecessors, what was gained by the Revolution? Was the old tyranny exchanged for "an elective despotism"? Jefferson said that that was not what they fought for. In the Declaration of Independence the complaint was set out that "he [George III] has made Judges dependent on his Will alone for the tenure of their offices and the amount and payment of their salaries." The judge was a mere creature of the King to take dictation — to follow a Clayton Act when told to do so. Hence the provisions in the Constitution for independent judges, who "shall hold their Offices during good Behavior" and whose "Compensation ... shall not be diminished during their Continuance in Office."

Congress may limit the jurisdiction of inferior courts established according to needs: one may try criminal cases, another bankruptcy cases, another patent cases, another commerce cases — but "the judicial Power of the United States" flows into such courts, not from Congress (which has only legislative power) but from the people through their Constitution. The extent of the Court's operations (jurisdiction) Congress may set to meet the needs of the public, but with "the judicial Power of the United States," which the Constitution (Article III) says "shall be vested in one Supreme Court and such inferior courts as Congress may from time to time ordain and establish" — with the power of the inferior court, which comes from the people through their Constitution, Congress has no more to do than it has with that of the Supreme Court. Both the Supreme Court (created by the Constitution) and the inferior courts (created by the Constitution and to be established by Congress as needed) get their power from the one sentence of the Constitution just before quoted — both have breathed into them one breath of life.

What is contained in that breath? Article III, section 2, says that "the judicial Power shall extend to all Cases, in Law and Equity." In equity courts there was no jury trial of right in 1787, nor has there been since, nor can there legally be without an amendment to the Constitution.

The simple question is whether Congress could amend the Constitution by the Clayton Act, thereby setting aside the provisions of Article III on the judiciary and rendering unnecessary the formalities of Article V, on amendments.

In reversing the decree of the Circuit Court of Appeals this was stated by the Supreme Court of the United States to be the point:

But the simple question presented is whether Congress may require a trial by jury upon the demand of the accused in an independent proceeding at law for a criminal contempt which is also a crime.

It was a crime by the law of Wisconsin. But the United States District Court was not administering the law of that State: it was applying a rule of equity for the maintenance of the dignity of the American people, one of whose judicial tribunals, existing under Article III of the Constitution, had been openly flouted. If the employer had wanted to start proceedings under the State law to punish the offender, or if the prosecuting attorney of the State had chosen to take steps under the statute, then a jury would have been called. In the Debs case (158 U. S., 564) it was said that the offender might be punished both ways, for violating local law as well as for showing contempt of the order of the court. "To submit the question of disobedience to another tribunal," it was there said, "be it a jury or another court, would operate to deprive the proceeding of half its efficacy." But the Wisconsin statute had no application to the proceeding for contempt in the court of the United States, nor had Congress power to adopt that statute and put it over the courts of the Nation and thereby strip those courts of the equity power vested in them by the Constitution. It had been held by the Supreme Court in 1920 (Knickerbocker v. Stewart, 253 U. S., 149) that Congress could not adopt the Workmen's Compensation laws of the different States as a national act covering seamen engaged in foreign commerce — it could not thus let the States legislate for the Nation — it could not delegate its power. There it had power which it could not delegate: here it tried to delegate a power which it never possessed.

The District Court of the United States did not bring the defendant to the bar to punish him for violating the law of Wisconsin — it called him in to deal with him for trampling on its order. It is for the affronted court itself to maintain its own dignity, and the dignity of the people who created it, without asking a jury, or the law of a State, or any other court, to protect it.

Over its power (poured into it by the Constitution) in that relation neither Congress nor the legislature of Wisconsin had any authority whatever.

The Supreme Court of the United States reasoned it out this way:

That the power to punish for contempts is inherent in all courts, has been many times decided and may be regarded as settled law. It is essential to the administration of justice. The courts of the United States, when called into existence and vested with jurisdiction over any subject, at once become possessed of the power. So far as the inferior Federal courts are concerned, however, it is not beyond the authority of Congress (Ex. p. Robinson, 19 Wall, 505; Bessette v. Conkey, 194 U. S., 324, 326); but the attributes which inhere in that power and are inseparable from it can neither be abrogated nor rendered practically inoperative. That it may be regulated within limits not precisely defined may not be doubted. The statute under review is of the latter character.

That is to say, while Congress cannot take the equity power away from the courts, the power "may be regulated within limits not precisely defined." The courts retain their constitutional equity power, but in certain cases cannot use it. That is all that Congress and those behind it wanted. The Judicial Department may beguile itself with the belief that it retains its equity powers intact, but the practical truth is that the Legislative Department invaded its constitutional domain and carried away a part of its authority.

The Supreme Court was of the opinion that Congress could extend the right to jury trial in criminal contempts (where the public interest and the defendant are concerned) by converting a civil contempt (where the employer and the defendant are concerned) into a criminal contempt. But the most familiar of doctrines is that what cannot be done directly cannot be accomplished by indirection. That is, if Congress cannot say outright that the courts of the United States, established in pursuance of the Constitution, shall no longer possess a certain equity power, then it cannot bring that to pass by the legislative legerdemain of extending the definition of criminal contempts to include civil contempts. The public had no interest in this as a criminal matter. It involved a former employee who interfered with the rights of his former employer in defiance of an order of a court of equity of the United States. If that act was also a crime by the law of Wisconsin, that was for the officials of that State to look after.[1] By the trick of making a Federal court act under the State statute and thereby transfer to a jury what was not in equity a subject matter for a jury Congress would increase its power and lessen that of the Judicial Department — an ambition of the Legislative Department which "slumbers not nor sleeps."

[1] As illustrative of the principle that neither the Legislative Department of Government nor the Executive Department should interfere with the Judicial Department in the discharge of the powers which it holds under the Constitution precisely as those departments hold theirs, it may be mentioned that in Wisconsin (the statute of which was involved here) the Supreme Court of the State held (187 N. W., 83) that the pardoning power of the Governor could not liberate a man under punishment to enforce, not a public, but a private, right, as where there was interference with the business of a former employer by picketing and intimidation, just as there was in the Michaelson case; and that in Massachusetts the Supreme Judicial Court held (236 Mass., 317) that the legislature is without authority to limit the constitutional power of the courts for self-protection. Otherwise, where would the end be?

The Supreme Court stands for the principle but yields the substance, as it did in sustaining some prohibitory laws:

The only substantial difference between such a proceeding as we have here, and a criminal prosecution by indictment or information is that in the latter the act complained of is the violation of a law and in the former the violation of a decree. In the case of the latter the accused has the constitutional right of trial by jury; while in the former he has not. The statutory extension of this constitutional right to a class of contempts which are properly described as "criminal offenses" does not, in our opinion, invade the powers of the courts as intended by the Constitution or violate that instrument in any other way.

That calls up what Hamilton said in "The Federalist" (No. 78), where he discussed the relative powers of the three Departments of Government, pointed out the great initiatives which both the Congress and the President possess, while the Judicial Department has none at all, and added that the Judicial will need the protection of the people:

It proves incontestibly that the Judiciary is beyond comparison the weakest of the three Departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.... For I agree that "there is no Liberty if the power of judging be not separated from the Legislative and Executive power."

"There is no Liberty," repeating Hamilton's words, where a legislative body can tell a court how to try a case any more than there was when George III made "Judges dependent on his Will alone for the tenure of their offices and the amount and payment of their salaries." When judges are prevented by any power from passing on legal questions by the application of legal principles, then, as Hamilton said, "there is no Liberty."

The educated people must be on guard when undermining legislation is proposed, and particularly when the Legislative Department tries to assume or direct Judicial Power. In a previous chapter the highest foreign authorities were quoted to show that nothing has contributed more to the success of our Republic than the operation of the Judicial Department. It is what distinguishes our government from the failures of the centuries, including those governments which perished before our view in the World War, wrecked without reason by man in power, who was not bound down "from mischief by the chains of" a "constitution."

We should be careful, as Judge Dillon said, not to make the mistake of the base Judean, who threw a pearl away richer than all his tribe: we should not cast off what has so far been our salvation.


Supreme Court Yields to Encroachment by Congress

Another case in which the Judicial Department gave ground to the aggressive Legislative Department was decided (McGrain v. Daugherty, 273 U. S., 135) in January, 1927. The Supreme Court of the United States reversed a holding of the United States District Court for the southern district of Ohio releasing by habeas corpus Mally S. Daugherty from the custody of a deputy Sergeant-at-Arms of the United States Senate, by whom he had been arrested as a contumacious witness under a warrant of attachment issued by the Senate. The Supreme Court directed "that the final order in the District Court discharging the witness from custody be reversed."

At the head of the Department of Justice of the United States is the Attorney-general, a member of the Cabinet of the President. Previously to March 28, 1924, when the Attorney-general resigned, "various charges," the Supreme Court stated, "of misfeasance and nonfeasance in the Department of Justice after he became its supervising head were brought to the attention of the Senate by individual senators and made the basis of an insistent demand that the Department be investigated to the end that the practices and deficiencies which, according to the charges, were operating to prevent or impair its right administration might be definitely ascertained and that appropriate and effective measures might be taken to remedy or eliminate the evil. The Senate regarded the charges as gross and requiring legislative attention and action."

The resolution of the Senate directing the investigation did "not in terms," the Supreme Court said, "avow that it is intended to be in aid of legislation." That is important, for on this basis alone was the action of the Senate sustained.

The avowal of a purpose to legislate was put in a later resolution authorizing a warrant of arrest after the authority of the Senate had been challenged to exert under the Constitution what was declared to be the judicial power of arrest and punishment. Then it was recited that the information sought by the investigation was wanted as a "basis for such legislation and other action" as might be deemed necessary. "And other action," the defendant contended, meant action beyond the power of a legislative body.

But it was immaterial what the resolution declared. If the Senate did not receive from the Constitution the judicial power to arrest and punish, it could not confer that power upon itself by reciting that it was in quest of data as a basis of legislation. Moreover, the Senate is not competent to legislate. Neither are the Senate and the House of Representatives together. All their acts must be submitted to the President for approval or veto.

And even had there been a joint resolution of the Houses signed by the President, a joint legislative committee would not possess judicial power. That blending of powers which Jefferson and Madison opposed as "the very definition of despotic government" finds no sanction in the Constitution. On the contrary, as will be seen, numerous provisions exclude the implication.

The resolution authorized a select committee of five senators "to investigate ... and report ... concerning the alleged failure of ... Attorney-general of the United States to prosecute properly violators of the Sherman Anti-Trust Act and the Clayton Act against monopolies and unlawful restraint of trade; the alleged neglect and failure ... to arrest and prosecute" named persons "and their co-conspirators in defrauding the Government, as well as the alleged neglect and failure ... to arrest and prosecute many others for violations of Federal statutes, and his alleged failure to prosecute properly, efficiently, and promptly, and to defend all manner of civil and criminal actions wherein the Government of the United States is interested." The select committee was directed to report also on "the activities of the" Attorney-general ... "and any of his assistants in the Department of Justice which would in any manner tend to impair their efficiency or influence as representatives of the United States."

The select committee was authorized to call witnesses with books and papers.

The defendant, brother of the Attorney-general, refused to appear as a witness on the ground that the Senate lacked the power which it was essaying to exert. He was arrested for contempt of the Senate, and released by the United States District Court, which said that "it is exercising the judicial function; this it has no power to do." The lower court's order was reversed by the Supreme Court.

This discussion will be without any reference to persons who may be guilty or innocent — it will relate solely to constitutional principle and power.

The foregoing charges against the Attorney-general and the Secretary of the Interior set out what were violations of their oaths and of the criminal code of the United States. The Constitution, always sufficient, takes care of that. In the Fifth Amendment, written to hold in check the power of the Congress, and one of the provisions of the Bill of Rights which many of the States called for when they ratified the Constitution, is this:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.

Let it be repeated that the provision is in the Bill of Rights, written against national Power, and designed to hold in control "any government on earth."

The Grand Jury is a body created by the same power that set up the Senate. In its field it is no more to be ignored or pushed aside than is the Senate, or the House of Representatives, or the President in the field assigned to each. The Grand Jury of the Constitution sits in secret so that the honor of the accused may not be affected until evidence enough of guilt has been adduced to warrant the return of an indictment making specific charges. It superseded the old Anglo-Saxon pursuit with horn and voice, by which one aggrieved, or one discovering a felony, raised hue and cry. His neighbors were bound to turn out and follow. When the accused was caught he was not permitted to say anything in court in self-defense. An English writer said that the Grand Jury had been useful to "baffle the attempts at malevolence."

A capable United States Attorney, with a Grand Jury of sound men called by a United States District Court, could have conducted an investigation of the charges made, subpoenaed witnesses, compelled the production of books and papers, and altogether drawn out the facts. Were the facts as alleged, or even not so bad, an indictment would have been returned containing specific charges of violation of the law, which the witnesses heard and the documents examined convinced the Grand Jury that it should make. Then would follow, as provided in the Sixth Amendment, "a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." The evidence offered to the jury would not be hearsay: it would come from persons knowing the things they stated, and from books, records or papers duly proved. The trial judge, holding firmly to the tested rules of evidence, would not allow the malevolent to use the trial for the expression of their feeling, nor the vindictive to take the opportunity to get even with somebody. What persons then dead were reported to have said to some one would be left with the dead.

This procedure, set out in the Constitution of the United States, had served its purpose well for over a century and a third when the Senate began the investigation under review.

After a public trial before a judge learned in the law and a jury — for Article III, section 2, requires that "the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury" — the indicted man is convicted or acquitted.

Until this procedure specified in the Constitution has shown itself to be inadequate for the punishment of crime it should be followed. And no other method should be employed until this one has been superseded by an amendment to the Constitution. No thinking person has ever suggested that this ancient and effectual procedure should be abandoned for the hue and cry of the Legislative Department.

The charges stated in the resolution of the Senate might have been followed up in another constitutional way. Article III, section 4, of "the supreme Law of the Land," says:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The accusers of President Andrew Johnson contended that "an impeachable crime or misdemeanor ... may consist of a violation of the Constitution, of law, of an official oath, or of duty, by an act committed or omitted, or, without violating a positive law, by abuse of discretionary powers from improper motives, or from improper purposes."[1] So the road to impeachment is wide.

[1] See Norton's "The Constitution of the United States: Its Sources and Its Application," page 129.

Article I, section 2, provides that "the House of Representatives ... shall have the sole power of Impeachment." This is a direct authority to investigate, the like of which the Senate does not possess. The House of Representatives could have called for witnesses and papers in the preparation of articles of impeachment. That was the House, if either, which should have moved. But it could not have moved "for legislative purposes," as the Senate did. It had power to move only for impeachment purposes. The Senate, not having power expressed in the Constitution to attack the Judicial Department or the Attorney-general, cloaked its move under a search for information on which to base such "legislative and other action as the Senate may deem necessary and proper" — as though the Senate could legislate without the concurrence of the House and the signature of the President!

Article I, section 3, gives the Senate "the Power to try all Impeachments: when sitting for that Purpose they shall be on Oath or Affirmation." That is the only semblance of judicial power that the Senate derives from the Constitution. But it cannot sit as a court of impeachment until the House of Representatives has preferred articles of impeachment against somebody. Evidently the House did not see fit to move in that way. The non-action of the House had its presumptive force.

But had the House filed articles of impeachment and the Senate sat as a court and convicted the accused he would have been subject to severe treatment, for the last clause of Article I, section 3, of the Constitution says:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to law.

After either of these constitutional methods (the second including the first) had been pursued to a conclusion, then the Senate would have full information on which to base "such legislative and other action" as it might want to take. And the predilections or prejudices of the American people would not have been affected by anything not properly heard under the rules of evidence.

But had the House of Representatives determined to exercise its constitutional power to bring articles of impeachment, would the Senate, by carrying on an investigation or prosecution, have disqualified itself to sit as a court of impeachment? In the United States it is not the belief that one tribunal should be accuser and judge too. That is the reason that the Constitution sets up an independent Judicial Department by Article III, for the trial of the rights of the Man, and a Legislative Department by Article I. Their fields are as separate as the poles. By leaving its field and becoming an accuser, and by using the judicial power of arrest, the Senate would not have looked well later sitting as a court of impeachment.

The power of arrest and punishment is granted to each House by the Constitution only in the conduct of its internal affairs. It has not jurisdiction of mankind at large. In Article I, section 5, it is provided that "each House shall be Judge of the Elections, Returns and Qualifications of its own Members." That carries with it the power to investigate elections and in doing so to compel the attendance of witnesses and to compel them to testify.

The third paragraph of the same section says:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

In no other clauses of the Constitution does either House receive anything resembling the judicial power to arrest and punish. When the House of Representatives acts as a prosecuting attorney, so to speak, in filing the indictment or information known as articles of impeachment, when the Senate sits as a court to try the man impeached, and when each House deals with its own membership, each House has all power necessary to give effect to the duty conferred by the Constitution.

Under the rule of interpretation that an express inclusion or naming of things excludes all other things, neither House can, except in the instances just discussed, exert even the semblance of judicial power in the summoning of witnesses, the hearing of testimony, the compelling of the production of books and papers, and the arrest and punishment of witnesses for contempt.

But, in addition to that rule, there is the clear language of Article III of the Constitution conferring judicial power elsewhere. The authors of that article had lived under the dominion of a Parliament which wantonly destroyed men by bills of attainder and each House of which possessed judicial power. "The struggle popularly called the American Revolution," says McIlwain, "up to its latest constitutional phase, was a contest solely between the Americans and Parliament. The Crown was not involved.[1] At the present day the House of Lords is the highest court in the British Empire. In earlier times the legislative body in England was known as The High Court of Parliament, especially when performing judicial functions. A body which could enact laws and then interpret and enforce them, to the exclusion of court, jury, counsel and defense, had made the Declaration of Independence necessary. Therefore the historian, knowing those facts and looking for the first time at our Constitution, would expect to find the widest separation of legislative and judicial powers. And he would find it.

[1] "The American Revolution," p. 5.

In "The Federalist" (No. 48) Madison quotes Jefferson as writing that the blending of powers "in the same hand is precisely the definition of despotic government." In the same number Madison foresaw the Senate resolution to make an inquiry "for such legislative and other action" as might seem necessary. Dealing with the Legislative Department, "which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength," he spoke of its "enterprising ambition" to extend its own power, against which "the people ought to indulge all their jealousy and exhaust all their precautions," and added this remarkable etching of the Senate which appears in the case here under review:

The Legislative Department derives a superiority in our governments from other circumstances. Its constitutional powers being at once extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments. It is not unfrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere.

The question here was of such "real nicety" that after the United States District Court held that the Senate was exerting judicial powers the Senate employed a former Attorney-general to press its claims to "legislative and other action" before the Supreme Court. Under "complicated and indirect measures" looking toward pretended legislation it "masked" a grasp for extraordinary power, not conferred upon it by the Constitution. The question resulting was "whether," using Madison's language, "the operation of a particular measure" — the resolution of investigation — "will, or will not, extend beyond the legislative power."

As will be seen, this question was decided (1880) adversely to the Senate's theory forty-seven years before. But in the present case the Supreme Court drew the distinction that in the former there was "no suggestion of contemplated legislation." There was none in the present case in the original resolution: the feature of "contemplated legislation" was introduced after the authority of the Senate had been challenged. More about that later.

Article I of the Constitution opens with this:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.

Conversely, no legislative power can exist elsewhere. Article II declares in the first sentence:

The executive Power shall be vested in a President of the United States of America.

The executive power can be exerted by no other person or body. Article III, in the first sentence, says:

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

That means that neither Senate nor House of Representatives, nor both of them sitting as the Congress, can claim a share of judicial power.

In those three statements are the grand divisions of the power of Government first reduced to writing and set in rigid form in the Constitution of the United States. The men who did that walked in the light of knowledge. They declared that the blending of those powers in one hand was "the very definition of despotic government." That is, every despotism in history that they had studied was characterized primarily by the union of two or more of those powers in one person or body. They therefore concluded that that blending was the cause of despotism. Consequently, if despotism was to be avoided, they reasoned, those powers must be torn apart and rigidly set in a Constitution beyond ever coalescing again. That is the great American idea. It must not become what Elihu Root called "a lost and forgotten faith."

In 1880 the Supreme Court of the United States decided the case of Kilbourn v. Thompson, 103 U. S., 168, which decision should have been conclusive in the Daugherty case. In 1876 the failure of a firm with which the Secretary of the Navy had deposited money of the Government resulted in a heavy loss to the United States.[1] The House of Representatives instituted an inquiry like that begun by the Senate and here under consideration. The House wanted to find the "true inwardness" of the crash, as the Senate sought to ascertain all about the dealing in oil lands of the Government and about many other things. Kilbourn was subpoenaed to testify and to produce for examination books and papers. He refused. Being cited for contempt and still refusing, he was thrown into jail, where he spent forty-five days before he secured release by the writ of habeas corpus. When the case was finally decided in his favor he sued the Speaker of the House, the Sergeant-at-Arms and some others for damages for false imprisonment and recovered a judgment which Congress had to pay by an appropriation.

[1] See Norton's "The Constitution of the United States: Its Sources and Its Application," pp. 26, 27.

Other essential facts will appear in quotations from the decision, which will be freely made because the opinion all through has the vibrant tone of Liberty Bell. In that case, as in this, action was taken, not by Congress, but by one House. The framers of the Constitution never intended that one House should proceed alone toward "contemplated legislation," as the Supreme Court termed it, which was not referred to in the Senate resolution, but which appeared in the resolution for arrest as a "basis for such legislation and other action." There is no legislative power in either House. As before quoted, "All legislative Powers herein granted shall be vested in a Congress." And that Congress, says Article I, "shall consist of a Senate and a House of Representatives." In Article 1, section 5, the last clause arranges definitely for united action:

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Not only must the Houses act in concert in legislative matters, but they must also act with the Executive Department, according to the last paragraph of Article I, section 7, of the Constitution:

Every Order, Resolution or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and, before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

That language follows immediately the paragraph telling precisely how a bill shall be passed and submitted to the President for signature or veto. To prevent the ignoring of the Executive Department by the transaction of any legislative business in the form of an "Order, Resolution, or Vote," the provision just quoted was inserted. For, as has been repeatedly pointed out, the founders of the Republic put no trust whatever in parliaments. James Madison, the reporter of the Constitutional Convention, and in many ways the ablest man in it, explained in "The Federalist" (No. 73) just what was the idea in giving to the President the veto power:

The propriety of the thing does not turn upon the supposition of superior wisdom or virtue in the Executive, but upon the supposition that the legislature will not be infallible; that the love of power may sometimes betray it into a disposition to encroach upon the rights of other members [the Executive Department or the Judicial] of government; that a spirit of faction may sometimes pervert its deliberations; that impressions of the moment may sometimes hurry it into measures which itself, on maturer reflection, would condemn.

That is a great statement.

As it is unmistakably the purpose in the Constitution that for legislative business both houses must work together not only, but also that the President must act on their bills and resolutions, it follows that any excursion in search of material as a "basis for such legislative and other action" should be initiated by a joint resolution signed by the President. The Constitution gives neither House authority to take any step in legislation independently of the other. The House is authorized to bring impeachments, but that action is not legislative. The Senate sits alone as a court of impeachment, but that duty is not legislative. The Senate acts independently on the appointments of the President and upon treaties made by him, but those matters are not legislative. Not only is there no clause in the Constitution authorizing either House to take alone any action having any relation to legislation, but the tenor and manifest purpose of the clauses just before quoted are to the contrary.

It is not admitted that even had there been a concurrent resolution of the Houses signed by the President a joint committee could have exerted the judicial power to arrest or punish with respect to any matter within the domain of the Judicial Department of the Constitution. The charges made against the Attorney-general in the resolution, and against the Secretary of the Interior, were unquestionable grounds of impeachment and of prosecution in court. In neither proceeding was it the Senate's first move. By the Senate's own particularization in its resolution it was made clear that the matters complained of were for judicial and not legislative action — even if the Senate alone were a legislative body, which it is not.

In reversing the decision of the lower court holding that in arresting the brother of the Attorney-general the Senate had exerted a judicial power not conferred upon it by the Constitution the Supreme Court of the United States relied on the historic fact (not a decision) that in 1792 the House of Representatives inquired into the failure of the St. Clair military expedition which was ambuscaded by the Indians on the Wabash River. There could have been no case for the courts there, except the courts-martial; the expedition was, some claimed, not vigilantly handled, although General St. Clair had won distinction under Washington, who appointed him Governor of the Northwest Territory. As the House was obliged under the Constitution to initiate the money bills to support the expedition (Article I, section 7), it had a close interest in the matter. It does not appear that it attempted to arrest and punish. The incident is not a precedent for so-called legislative inquiry into violations of the criminal law which are cognizable only by grand juries and courts.

The Supreme Court cites also an inquiry by the Senate into John Brown's raid on Harper's Ferry, when a recalcitrant witness was brought to the bar. Charles Sumner, the largest figure in the body, argued that the arrest was beyond its power. The Senate voted that it had power. The American system was designed to prevent either the Legislative Department or the Executive from determining for itself whether it has power in a given case.

"The deliberate solution of the question on that occasion," says the Supreme Court, "has been accepted and followed on other occasions by both Houses of Congress, and never has been rejected or questioned by either of them."

There can be no solution, deliberate or otherwise, of the question of the possession of power under the Constitution by the body claiming to possess it. That is a question of constitutional construction solvable only by the Judicial Department. Besides, there were many things done by Congress, more or less "deliberate," between John Brown's time and the withdrawal of the troops from the South in the administration of Hayes, which were not creditable to its exercise of power, among them being its attempt in Johnson's administration, as President Cleveland later charged, toward "the subjugation of the Executive to legislative will."

A decision arising out of an attempt to bribe a member of the House of Representatives is cited by the Supreme Court. That was a contempt of the body practically within its walls. It was a direct affront to the character and dignity of the whole body, done really in its presence, as some contempts of court are of such a nature as to be done in the court's presence although not in the courtroom. There was no question of the power of the House to examine the world at large so that it might know how to "legislate," regardless of the Senate and the President. Another similar case, cited by the Supreme Court, involved a charge in the press of corrupt influence in the Senate. Self-defense should be within the power of the Senate. Acting as a grand jury without privacy should not be within its power.

"The only legitimate object the Senate could have in ordering the investigation," the Supreme Court concluded, "was to aid it in legislating; and we think that the subject-matter was such that the presumption should be indulged that this was the real object."

That concedes that any other than a genuine desire to obtain knowledge on which to base legislation would have made the proceeding unconstitutional. If legislation alone can be the purpose, then why should not the House and the President be parties to such a proceeding, as the Senate, by itself, cannot legislate?

It is an important fact that a year and a half after the Senate had thus in the Supreme Court scored its point on Power it had taken no step toward legislation and had not even called the recalcitrant witness to testify.

In a case which this one parallels perfectly the Supreme Court in 1880 denied with vigor the power of the House of Representatives under the Constitution to go on a hunting expedition in a matter coming within the domain of the Judicial Department and throw citizens into jail for questioning its high mightiness. Kilbourn v. Thompson has been previously mentioned. The loss of money of the United States in the failure of Jay Cooke and Company in 1873, following the scandals of the Credit Mobilier involving members of Congress, might well have called for an inquiry as a "basis for such legislative and other action" as might appear to be necessary. But the Supreme Court held not. On the wide and indefinite sweep of the inquiry, which came to a head by the throwing of Kilbourn into jail, the Supreme Court said:

What was this committee charged to do?

To inquire into the nature and history of the real-estate pool. How indefinite! What was the real-estate pool? Is it charged with any crime or offence? If so, the courts alone can punish the members of it. Is it charged with a fraud against the government? Here, again, the courts, and they alone, can afford a remedy.

The Supreme Court made these observations on the distribution of powers under the Constitution, and especially on the lack of judicial power in the Congress, and more particularly in one House:

The powers of Congress itself, when acting through the concurrence of both branches, are dependent solely on the Constitution. Such as are not conferred by that instrument, either expressly or by fair implication from what is granted, are "reserved to the States respectively, or to the people." Of course, neither branch of Congress, when acting separately, can lawfully exercise more power than is conferred by the Constitution on the whole body, except in the few instances where authority is conferred on either House separately, as in the case of impeachments. No general power of inflicting punishment by the Congress of the United States is found in that instrument. It contains in the provision that no ''person shall be deprived of life, liberty, or property, without due process of law," the strongest implication against punishment by order of the legislative body.

How very practical the Constitution is, and how appealing to fair play, is shown by this language of the Supreme Court:

It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other.

That is, the Senate has no place in the field of criminal law or in the preparation of articles of impeachment.

On successful encroachments in the past and on the natural drift toward centralization this is informing:

In the main, however, that instrument, the model on which are constructed the fundamental laws of the States, has blocked out with singular precision, and in bold lines, in its three primary articles, the allotment of power to the Executive, the Legislative, and the Judicial departments of Government. It also remains true, as a general rule, that the powers confided by the Constitution to one of these departments cannot be exercised by another.

It may be said that these are truisms which need no repetition here to give them force. But while the experience of almost a century has in general shown a wise and commendable forbearance in each of these branches from encroachments upon the others, it is not to be denied that such attempts have been made, and it is believed not always without success. The increase in the number of States, in their population and wealth, and in the amount of power, if not in its nature to be exercised by the Federal government, presents powerful and growing temptations to those to whom that exercise is intrusted, to overstep the just boundaries of their own department, and enter upon the domain of one of the others, or to assume powers not intrusted to either of them.

The following passages describe the Daugherty case and show the line by which legislature and court are divided:

In looking to the preamble and resolution under which the committee acted, before which Kilbourn refused to testify, we are of opinion that the House of Representatives not only exceeded the limit of its own authority, but assumed a power which could only be properly exercised by another branch of the government, because it was in its nature clearly judicial.

The Constitution declares that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. If what we have said of the division of the powers of the government among the three departments be sound, this is equivalent to a declaration that no judicial power is vested in the Congress or either branch of it, save in the cases specifically enumerated to which we have referred. If the investigation which the committee was directed to make was judicial in its character, and could only be properly and successfully made by a court of justice, and if it related to a matter wherein relief or redress could be had only by a judicial proceeding, we do not, after what has been said, deem it necessary to discuss the proposition that the power attempted to be exercised was one confided by the Constitution to the Judicial and not to the Legislative Department of the government. We think it equally clear that the power asserted is judicial and not legislative....

If the United States is a creditor of any citizen, or of any one else on whom process can be served, the usual, the only legal mode of enforcing payment of the debt is by a resort to a court of justice. For this purpose, among others, Congress has created courts of the United States, and officers have been appointed to prosecute the pleas of the Government in these courts... .

We are of opinion, for these reasons, that the resolution of the House of Representatives authorizing the investigation was in excess of the power conferred on that body by the Constitution; that the committee, therefore, had no lawful authority to require Kilbourn to testify as a witness beyond what he voluntarily chose to tell; that the orders and resolutions of the House, and the warrant of the speaker, under which Kilbourn was imprisoned, are, in like manner, void for want of jurisdiction in that body and that his imprisonment was without any lawful authority.

As before said, Kilbourn recovered a judgment in damages against the officers of the House for false imprisonment, which was paid by congressional appropriation.

The only difference between the Kilbourn case and the Daugherty case was that in the former the House of Representatives did not declare in its resolution that it was in quest of data on which to base legislation, while in the latter case the Senate, as an afterthought, made that profession. But there was as much need for the initiation of legislation by the House to protect for the future the funds of the Nation in the keeping of the Secretary of the Navy as there could be by the Senate for safeguarding the oil lands in charge of the Secretary of the Interior. Not until the Senate was challenged as exerting judicial power did it say that it was paving the way for legislation.

Therefore, this point has been reached, that when either House of Congress chooses to resolve to make an inquiry in aid of legislation that statement will be enough to prevent a citizen from being indicted by a Grand Jury and tried by a petit jury in accordance with the provisions of the Constitution until he has first been publicly pilloried in disregard of all the rules of evidence. An orderly indictment and trial in accordance with the constitutional safeguards of the Man would yield all the information necessary to any legislation by Congress.

So henceforward all that either House will have to do will be to resolve to make an inquiry as a "basis for such legislation and other action," when it can manhandle an American with impunity.

Admitting that the power exercised by the Senate is not granted by the Constitution, the Supreme Court found it to be "incidental" to the legislative powers which are, of course, granted — but granted to Congress, not to either House, and then only upon submission to the President:

But there is no provision expressly investing either House with power to make investigations and exact testimony to the end that it may exercise its legislative function advisedly and effectively. So the question arises whether this power is so far incidental to the legislative function as to be implied.

It resolved the question of incidental or implied power in favor of the Senate as a legislative body (which it is not) and against the Liberty of the Man. It did not construe liberally, so as to give them full effect, the limitations and the prohibitions in the Constitution on Power, namely, that no one shall be held to answer for crime except when indicted by a Grand Jury, and that he shall then have "a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed." As more than once pointed out, the rule of construction is that a liberal reading must be given to provisions in the Constitution limiting Power. Instead of that, Power was read in where the Constitutional Convention did not write it.

The Constitution provides that a man shall be accused only in the secrecy of a Grand Jury room, and, if indicted, then publicly tried where the act was done — nowhere else. The Constitution must be construed to carry out that purpose in the fullest degree. Is it so construed when the Senate is held to have power to accuse him before indictment and trial, in the presence of the country, in the midst of all the broadcasting apparatus in the United States, in utter disregard of the rules of evidence which govern in a jury trial, and at any place where it may run him down?

It is too bad that the conclusions in the Kilbourn case were not repeated with emphasis, for in reality there was no difference between the cases. The time will come when that must be done.


Legislative Department Scores Again

In 1923 the Commonwealth of Massachusetts and an individual living in the District of Columbia endeavored to have the Supreme Court of the United States pronounce upon the constitutional power of Congress to pass (November 23, 1921) An Act for the Promotion of the Welfare and Hygiene of Maternity and Infancy, and for other Purposes, known while pending as the Sheppard-Towner bill.

They did not succeed (Massachusetts v. Mellon, 262 U. S. 447), and upon the expiration of the five-year limit of the Act it was reënacted. The President unwillingly signed it instead of heartily vetoing it.

As the matter stands, Congress may now spend public funds in any excursion into Utopia that it may care to take.

The Act appropriated $480,000 for the first year. For each of the five years $5,000 was appropriated to each of the forty-eight States, each State to "cover" the donation by a like appropriation of its own. There was appropriated $1,000,000 additional for each of the five years.

A Board of Maternity and Infant Hygiene was set up, consisting of the Chief of the Children's Bureau of the Department of Labor (the constitutionality of the existence of which Bureau and Department is questionable), the Surgeon General, and the Commissioner of Education. The Children's Bureau was charged with the administration of the Act. The Chief of the Bureau was made executive officer. The States were required to submit to the Bureau their plans for operation, and thus become subservient to the national Government.

The legislature of each State was required to make formal acceptance of the donation and (of course) to create a State agency of tax-consumers, the bureaus at Washington not being regarded as all that the taxpayers could carry.

Massachusetts made several contentions against the constitutionality of the legislation, among them that it "assumes powers not granted to Congress." This point should have been decided in one of the two cases disposed of together.

In the case of Mrs. Frothingham, from the District of Columbia, it was argued that Congress is without power to appropriate money for such purposes, the point in the Massachusetts case; and that Article I, section 8, clause 18 of the Constitution "restricts the power to appropriate public money to the ends within the scope of the powers vested by the Constitution in the United States" — that is, to illustrate, for establishing embassies in foreign capitals and maintaining diplomatic intercourse with other nations, for regulating commerce, for carrying on war, for conducting the post office, for maintaining courts, for keeping a patent office, for sustaining an army and a navy, and so on. Congress can use money only in exerting the several powers specifically granted to it by the Constitution, with those implied powers which clearly attend a granted power, as the power to establish a national bank resulted from the money and taxing clauses.

There was as solid a question as had ever been resolved by John Marshall. But it was not decided. The almost unanimous opinion is that the law is as stated by counsel for Mrs. Frothingham [1] and that Congress is lacking in power to raise and spend money except in carrying out the grants conferred upon it respecting national (not State) and international affairs. The chaotic condition in which the decision left the subject practically endows Congress with free will in spending public funds.

[1] In an address before the Georgia Bar Association in June, 1927, Henry St. George Tucker of the Bar of Virginia discussed this clause 18 (called the coefficient clause) along with the general welfare clause, that "Congress shall have power to lay and collect taxes ... to pay the debts and provide for the common defense and general welfare of the United States." He cited authorities from the beginning to the effect that "the general welfare" is nothing more "than a description of those powers which were subsequently enumerated in the Constitution." He demonstrated "that the power of Congress to legislate for every object which in their opinion might be for the benefit of the people, pressed by Hamilton in the Convention, was six times, directly or indirectly, rejected by that body," in spite of which some yet seek (as Congress did in the Maternity Act) to construe the words as meaning what was rejected. See "American Bar Association Journal" for July and August, 1927.

The Supreme Court found that it had no jurisdiction of the cases. Without discussing here the status in court of the Commonwealth of Massachusetts, and its right to protect its citizens as taxpayers against an unconstitutional appropriation of public funds, even where the legislature had not accepted the sop offered by Congress, it is clear that Mrs. Frothingham, as a taxpayer, took a step which the Supreme Court has sustained in many cases arising in the States. A taxpayer may enjoin in his own behalf, and in the interest of all others similarly situated, the carrying out of an illegal scheme of taxation and expenditure. Upon the showing of unconstitutionality the officers whose duty it is to spend the funds will be restrained from doing so. Mrs. Frothingham brought suit to prevent the Secretary of the Treasury from paying out funds in pursuance of the Maternity Act.

Admitting the general law in such cases to be as stated, the Supreme Court said that the right of a taxpayer thus "to enjoin the execution of a Federal appropriation act, on the ground that it is invalid and will result in taxation for illegal purposes, has never been passed upon by this court." Then it preceded to draw distinctions where there is no difference in principle:

The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuses is not inappropriate. It is upheld by a large number of State cases and is the rule of this court.... But the relation of the taxpayer of the United States to the Federal Government is very different. His interest in the moneys of the treasury — partly realized from taxation and partly from other sources — is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain that no basis is afforded for an appeal to the preventive powers of a court of equity.

If a taxpayer in New York, with a population in 1920 of over 10 million, can in an injunction suit stay the operation of an act of the legislature violative of the Constitution of the State or the Constitution of the United States (and it has long been settled that he can), why should a taxpayer of the Nation, with a population of 105 million, be denied injunctive relief from the application of an invalid act of Congress?

The interest of the taxpayer in New York is "comparatively minute and undeterminable," to use the Supreme Court's description, for one person out of 10 million is very small indeed. But constitutionally he is (or should be) as large as the whole mass. At what point between a population of 10 million and one of 105 million does the Constitution cease to operate in protection of the rights of Man? The Supreme Court did not say.

It is erroneous to state that "the relation of the taxpayer of the United States to the Federal Government is very different" from that of a taxpayer to his city, his county, or his State, in all of which relations courts of equity have in countless cases given him relief against illegal schemes of spending. In principle there is no difference whatever.

Nor is it important that the taxpayer's State might never accept the offer of Congress: he has the right to object to the use of national funds in every State where spent under an unconstitutional law.

The intimation in the quoted language that the United States has sources of revenue other than taxation was evidently regarded as unimportant by the Court. The money coming from public lands is relatively trifling. It is on taxation that the United States lives and moves: all its great expenditures are from taxes.

Passing from the "comparatively minute and indeterminable" interest of the taxpayer among 105 million (which would not be so among 10 million), the Supreme Court expressed apprehension of confusion:

If one taxpayer may champion and litigate such a cause, then every other taxpayer may do the same, not only in respect of the statute here under review, but also in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned.

First, even if that were so, it would be no ground for denying relief if the law were unconstitutional. Second, experience in the States shows that the fear is not warranted. Third, no court will entertain a suit to test the validity of a statute when another court has already taken jurisdiction.

The result of this decision is that as a State cannot maintain a suit to enjoin a Federal officer from spending money under an unconstitutional act of Congress, and as the interest of a taxpayer is so microscopical as to leave him remediless, the Congress is practically licensed to do its will.

Yet in Gibbons v. Ogden (9 Wheaton, 1) this statement was made by Chief Justice Marshall:

Congress is not empowered to tax for those purposes which are within the exclusive power of the States.

Acting in that belief, and knowing that the police power of the States has to do with the health, morals, and general well-being of the people (which includes care in maternity), two litigants undertook to restrain the Secretary of the Treasury from spending money of the Nation in a field of the States. They failed. It is very regrettable indeed that some way could not be found to grant the relief they sought and put a check on the unconstitutional wastefulness of Congress.

As it did in the liquor cases, the Supreme Court, while denying relief, intimated that in some other case help might be available:

We need not go so far as to say that a State may never intervene by suit to protect its citizens against any form of enforcement of an unconstitutional act of Congress; but we are clear that the right to do so does not arise here.

Nor can it ever arise if, as the Court said, citizens of a State in whose behalf the State essays to act as parens patriae are also citizens of the United States and "it cannot be conceded that a State" may maintain a suit "to protect citizens of the United States." Massachusetts undertook to protect, not citizens of the United States, but citizens of the Commonwealth. Although each person has two citizenships, State and National, their being in one individual does not blend them: they are constitutionally separate possessions. If a State cannot protect its own citizens against the operation of a national law, certainly the Nation cannot be expected to protect either citizenship against its own unconstitutional course. And as the taxpayer is too diminutive to carry and assert a measurable portion of constitutional right, why is not the case closed in favor of "a legislative despotism"?

In the great battles waged in the ratifying conventions opponents of the Constitution raised clearly the very question later to arise in the Maternity case, whether under the "general welfare" clause Congress could spend money without restraint for any purpose that its judgment might approve, or whether any boundary had been set by the Constitution to purpose and prodigality. James Madison, whose notes of the Constitutional Convention furnish our record of that world-moving body, the Convention's ablest scholar in the history of government, a member of the committee appointed by ballot "to revise the stile and arrange the articles" of the Constitution after the subject-matter had been fully drafted, and who should therefore know what the ideas of the framers were, said that Congress would not have the power to appropriate money for such a purpose as that behind the Maternity Act. In "The Federalist" (No. 41) he explained to the people of New York, a State strongly opposed at first to ratifying the Constitution, the meaning of the "general welfare" clause:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution on the language in which it is defined. It has been urged and echoed that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States," amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labor for objections than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."

But what color can the objection have when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase and then to explain and qualify it by a recital of particulars.[1 ]But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity.[2]


[1] That is, the statement in the Constitution that Congress has power to raise by taxation money for the "general welfare of the United States" has application to those instances only in which, by the grants immediately following, it is given specific powers to manage national affairs, such as the power of raising armies and navies, regulating commerce, establishing courts, operating a post office, and so on.

[2] In other words, if Congress is to proceed at pleasure, why were the twenty-odd powers which are so carefully laid down enumerated at all?


The spendthrift time has come when this question, which has never been judicially determined by the court of last resort, should be set at rest if possible.

That ends a review of judicial history, only partially complete, which it seemed necessary to make.

It would be repetition to deal with all the excursions of the Legislative Department beyond constitutional boundaries that have been sanctioned by the Supreme Court. Three other important instances may be stated briefly.

A law entitled (1910) by Congress The White Slave Act, passed under the Commerce Clause to prevent the shipping or transporting in interstate commerce of girls for the purpose of prostitution, "or any other immoral practices," was (1917) made by construction by the Supreme Court (242 U. S., 470) to include conduct not within the title or the publicly proclaimed purpose, although it was within the words just quoted. It is a familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. (See Norton's "Constitution," p. 6.) "Mere immorality, free from all elements of commerce or coercion," is within the police power of the State and not for correction by the Nation. Three justices dissented (and one did not participate) because such an attempt, if Congress made it, was unconstitutional, although the prohibition of the White Slave traffic itself was valid. Criminal laws should be strictly construed, while limitations in the Constitution on Power are liberally read in favor of the individual.

In 1919 four justices of the Supreme Court dissented (249 U. S., 86) from an opinion upholding the Narcotic Drugs Act, which had been passed under the Tax Clause of the Constitution. In practice it was, in the guise of a revenue measure, a very detailed regulation of sales in the States. The United States District Court for Texas held the act unconstitutional as violative of the Tenth Amendment, for the safeguarding of State sovereignty in the field of the State. The District Court pointed out that Texas had a stringent statute for the punishing of such offenses as that which the national Government had taken in charge. The decision of the District Court was reversed.

A similar decision in 1915 upheld (239 U. S., 325) an act of Congress forbidding the transportation from abroad or between the States of moving pictures of boxing contests. While a nation has practically absolute control of what comes from another country, including immigrants, whether the people of a State shall see pictures made in another State is a question of morals and good order wholly within the police power of the State. In that particular the act of Congress was an interference with State prerogative. Those pictures may be neither pretty nor elevating, but nothing can be found in the debates on the Constitution or in the instrument itself respecting beauty or moral uplift. When the people of a State conclude that such things should not be, their legislature will act. Some have so acted. Some of those have allowed boxing to return. What any of them do or refrain from doing is no constitutional concern of the Nation.

Along with the decisions criticized, others were rendered of great courage and power. Care has been taken in the text to pay just tribute to the great service which our constitutional judicial system has rendered, not only to the American people, but also to the nations which copied it. It has been, as it was designed to be, the citadel of Liberty.

The cases reviewed are exceptional. But exceptions are the beginnings of new rules. The question is whether such new rules can be sound and therefore safe.

It would have been pleasanter not to write in criticism; but, as Thomas H. Benton said, the important consideration is, not sentiment, but public interest.

"The value, however, of these constitutional guarantees," quoting Judge Dillon again, "wholly depends upon whether they are fairly interpreted and justly and with even hand fully and fearlessly enforced by the courts....

"If there is any problem which can be said to be yet unsettled, it is whether the Bench of this country, State and Federal, is able to bear the great burden of supporting under all circumstances the fundamental law against popular, or supposed popular, demands for enactments in conflict with it. It is the loftiest function and the most sacred duty of the judiciary — unique in the history of the world — to support, maintain and give full effect to the Constitution against every act of the legislature or the executive in violation of it. This is the great jewel of our liberties. We must not, 'like the base Judean, throw a pearl away richer than all his tribe.' This is the final breakwater against the haste and passions of the people — against the tumultuous ocean of democracy. It must at all costs be maintained."

The conclusion to be drawn from this study is that the Judicial Department of our Government is, as the writers of the Constitution believed, indispensable to Liberty, and in need always of the support of the people. Without that support it will eventually be weakened if not broken, for in our own supposedly enlightened time it has been most viciously attacked, with an incredible volume of popular applause, by both the Executive Department and the Legislative, as Hamilton and Madison predicted that it would be, for which reason they commended it to the careful keeping of the people. Only a people indoctrinated by the schools with our philosophy of government can be capable of holding the President and the Congress where they belong through the force of an enlightened and positive opinion. The Judicial Department has for a century and a quarter met the purpose for which it was established and generally kept the Government in its constitutional course. Thereby the American people were enabled to reach their eminence among the nations. Any curtailment of its prerogative or diminution of its conferred powers would be a move toward suicide, the end of the Republic which the English historian Macaulay prophesied and the only one that Abraham Lincoln feared.

To maintain constitutional rights against all violence, whether by the executive, or by the legislature, or by the resistless power of the press, or, worst of all, against the ruthless rapacity of an unbridled majority, and restore it to its proper place in the world — all this seemed to me to furnish a field worthy of any man's ambition.


Absolute prohibition illegal, 58, 59, 99.

Acton, Lord, on theological root of Liberty, 12; defines Liberty, 31.

Agency, basis of American Government, Bryce, 69.

Agreement of the People, the, considered, 13.

Ambition of Congress, "slumbers not nor sleeps," 181.

Amendments, not to be made by courts, 169.

nor Congress, 178.


achievements of non-governmental, 1.

constitutional idea of, that Government let the Man alone, 1.

experience of discredited General Will, 9.

invented judicial safeguard to Liberty, 32.

docile to new Bourbonism, 64.

resources of, inferior to British Empire, production superior, 3.

American Bar Association Journal cited, 206, note.


immortal, Bryce on, 33.

can be manhandled by Senate or House with impunity, 202, 204.

Arrest and punishment,

exercise of judicial power, 185, 190.

power not in either House of Congress except for own discipline, 190.

Attorney-general, investigated by Senate, 183.

Authority and Liberty, conflict between made Massachusetts, 11.

Bagehot, quoted on bureaucracy, 76, note.


debts of guaranteed by others, 164.

laws sustained by Supreme Court, 168.

held unconstitutional by lower courts, 166.

Bar examinations superficial, 171, 172.

Belloc, Hilaire, "freedom and dignity of living in the individual," 3.

Benton, Thomas H., on constitutional foundations, 62.

Bill of Rights,

English, stated substantially, 16.

first ten amendments, reason for, 39.

says Liberty above Government, 16, 107.

soon lost efficacy in England, 17.

"against any Government on earth," 25, 107.

capped by Tenth Amendment, 68.

Blackstone, definition of Liberty, 27.

Bousset, first to see Liberty underlying religious controversy, 13.

Boxing pictures prohibited in commerce, 213.

Boyd v. United States, quoted, 47, 48.

Brewer, Justice, made only statement of Liberty, 107.

British people criticized, Declaration of Independence, 17.

Bryce, on lack of Supreme Court in England, 18, 53; immortal Americans, 33; success of Judicial Department, 53, 59; danger to Supreme Court, 59; disregard of Constitution by Congress, 60; agency in American Government, 69.

Burke, Edmund, on representative's proper independence, 5.

Byron, quoted on failures in Government, 68.

California wine-grape production increased, 141.


burdened by socialistic railway management, 2.

followed Constitution of United States, 53.

Carlyle, on misery from Government in France, 19.

Carter, James C., quoted on Power, 45.


hobby of influential forces, 4.

tendency of States, 4.

Madison on, 55.

Centralized Government, prevents "freedom and dignity of living," 3.

"Chains of the Constitution," necessary, Jefferson, 18, 171.

Charter of Liberties of 1101, 24.

Cicero, quoted on "headless people," 108.

City Beautiful, and "other people's money," 174.

warned by Interstate Commerce Commission, 175.

Clayton Act and equity cases, 176.

unconstitutional, Circuit Court of Appeals, 177.

sustained, U. S. Supreme Court, 180.

Colonists, victims of Government, 10.


held to include bottle in valise, 136.

defined by Chief Justice Marshall, 138.

Interstate Commission, never stopped, 142.

Commerce Clause,

does not authorize stoppage, 85.

explained by Chief Justice Marshall, 85.

history of, 130, 132.

liquor shipments stopped under, 129, 133, 137.

boxing pictures prohibited under, 213.

Competent men, and incompetent, confused, 99.

unnoticed in all decisions, 124.

Concurrent action State and Nation against Liberty, 128; before Eighteenth Amendment authorized it, 135.


Madison on its ambitions, 60, 61.

Bryce on disregard of constitutional limitations, 60.

not highest law, but Constitution, 61.

report of, on prescriptions, 64, 65.

assailed Judicial Department repeatedly, 67.

invaded Judicial Department, 176.

violated Fourth and Fifth Amendments, 47, 48.

reaches for more Power, 152.

can it manufacture courts? 177.

alone to amend the Constitution? 178.

ambition of, "slumbers not nor sleeps," 181.

secured more Power, 204.

at large as spender in Utopia, 204, 206, 208.

Madison against principle of Maternity Act, 210.


known only from world that made it, 5.

first fixed supremacy of Man to Government, 7.

miserable condition of Man before, 19.

reasons for careful study of, 20.

principle of, not sociology, under discussion, viii.

purpose of Solomon in, 23.

made independent judges, 41.

system of, contingent on independent judges, 44.

liberally construed for security of Man, 48.

"supreme law of the land," 61.

safeguards of, paraded but not applied, 91, 92, 157.

drafted for time of storm, 151, 152.

Construction of Constitution,

should favor Liberty, 83, 139, 209, 212.

Marshall stated rule for, 151.

favoring State against citizen, 168.

gave "implied" power to Senate, 203.

Conventicle Acts,

violations of Liberty, 10.

populated Massachusetts, 11.

Cooley, Thomas M., on Mugler case, 59.


Hamilton quoted on independent, 33, 34.

attacks on recently, 34, 151.

affected by "major voice of community," 34, note.

must declare void unauthorized laws, 61.

can Congress manufacture? 177.

constitutional power of, 178.

stand between people and government, Hamilton, 67.

Declaration of Independence,

states Man's supremacy to Government, 6.

followed since World War, 6.

on British people, 17.

Declaration of Rights, American, 108.

Decisions, other than in prohibitory cases, 154.

Definitions, none in decisions, 90, note.

Despotic Government, from blended powers, 152, 185, 191.

Despotism, elective, Jefferson's fear of, 36, 66.

in later day, 210.

Dicey, Prof. of Oxford, on need of limitations on Power, 55; in praise of Judicial Department, 54; on success of court's operations, 61; on arbitrariness and discretion, 158, 159.

Dickinson, John, defines Liberty, 30; warns against precedent, 91.

Dillon, John F., Judicial Department "final breakwater," 57, 214; criticized Oleomargarine case, 159.

Discretion in government means arbitrariness, 158, 159.

Distribution of powers by Constitution, 192, 193.

Divine right of Kings in England, 14.

Doubts should have favored Tenth Amendment, 82.

Dreams of better Government, 22 — Solomon's, Plato's, More's, Rousseau's.

Due Process of Law, defined, 39.

Educated public opinion, Washington on, 49.

Education in Constitution deficient, 4, 34, note 89.

Russian Constitution, 88-89.

Educators, need schooling in Government, 87.

Eighteenth Amendment covers beverages only, 63, 64, 69.

"Elective despotism," opposed by Jefferson, 9, 36, 64, 66, 210.

Employers aided temperance, 76.

Encroachments of Power to be watched, 48, 49.

English language not only one teachable, 35, 37.

Englishman, his poor condition, 20.

Equal Protection Clause and making oleomargarine, 156.

invoked by solvent bankers, 165, 168.

Equity power of courts,

attacked by Congress, 176.

Circuit Court of Appeals upheld, 177.

conferred by Constitution, 178.

cannot be limited in Massachusetts, 181, note.

upheld by Wisconsin Supreme Court, 181, note.

Erie Railroad v. Board, examined, 170.

Executive in power of legislature: folly — Roosevelt, 18, note.

Farmers' money in city crossings, 175.

Field, Justice, dissented in Oleomargarine case, 159.

Fifth and Fourteenth Amendments not void as to liquor, 162, 163.

Finding of fact by State not conclusive, 101, 158.

Fiske, John, on Commerce Clause, 130.

Fourth and Fifth Amendments violated by Congress, 47.

France, Jefferson on misery of people, 20.

Michelet on Power owning all, 19.

French Revolution,

failed from inexperience of people, 8.

based on erroneous theory, 9.

Carlyle quoted on, 19.

recalled by attacks on courts, 151, note.

General Will,

in France, forced people to be free, 9.

used to defend atrocities of Revolution, 9.

discredited by American experience, 9.

and Conventicle Acts of Elizabeth and successors, 10.

not supreme law of land in America, 9.

George III and puppet judges,

German language cases discussed, 35.

Gibbon quoted on decay of Government, 6.

"Good cause," Portia pushed aside, 155.


to let Man alone in United States, 1.

victimized Man everywhere in 1776, 6.

servant, not master, in America, 6.

service of, in people, early ideas, 7, 8.

one master is better than many, 8.

dreams by great men of better, 21.

cannot determine its own Power, 31.

can it be limited? 45.

Grand Jury,

constitutional creature, like Senate, 186.

baffles "attempts at malevolence," 186.

can ascertain all facts, 189, 202.

Habeas Corpus Act and Liberty, 25.

Hamilton, on necessity for independent courts, 33; "major voice of the community," 34; protection for Judicial Department, 182; separation of powers essential to Liberty, 182.

House of Representatives should impeach, 188.

Huns to be generated by our own institutions, 4.

Illiteracy in Constitution in United States, 4, note; 50, 52, 152.

Impeachment by House of Representatives, 189.

in effect by Senate, 188.

Independence, proper, of people's representatives, 5.

of judges, essential to Liberty, v, 177.

Individual initiative basis of American progress, 2.

Instrument of Government, Cromwell's, considered, 14.

Interstate Commerce Commission, on City Beautiful, 175.

never stopped Commerce, 142.

Jefferson, favored local government by States, 4, 63; on mischievousness of men in power, 18; on misery of French people, 20; favored Bill of Rights "against any Government on earth," 25; against "elective despotism," 36, 66; on "despotic government," 152.


independent, essential to Liberty, v.

are elective, vacillating? 40.

Declaration of Independence on servile, 41.

Federal, some would have elective, 42.

made independent by Constitution, 41.

James Wilson on independent, 41.

public must support, 152.

should not amend Constitution, 169.

can Congress manufacture? 177.

puppets of George III, 177.

Judicial decisions,

overloaded with moral philosophy, v.

recall of in politics, 44, 45.

Judicial Department,

essential to Liberty, 31, 214.

invented by Americans, 32.

assailed by interests, 33.

has not held Power in check, 50.

tributes to American, 50.

Bryce on sources of, 53.

Dicey in praise of, 54.

bright jewel of pur Liberty, 57.

operation astonished European countries, 61.

assailed by Congress, 67, 176.

cannot alone withstand all legislatures, 171.

invaded by Congress, 176.

needs protection, Hamilton, 182.

Judicial Power,

in arrest and punishment, 185, 190.

not conferred by Constitution on Senate, 203.

"implied," said Supreme Court, 203.

Kansas law, terms of, 106.

decision void of reasoning, 106.

based on misunderstood cases, 109.

citations reviewed and distinguished, 110, 115.

Kilbourn v. Thompson, stated and quoted, 193, 199, 202.

got judgment against House, 202.

Kings, divine right of in England, 14.

passive obedience to, 15.

effect in America of dethroning, 15.

Lambert v. Yellowley, physician's prescriptions, 62, 153.

Languages, study of beyond governmental control, 35, 37.

Lawlessness in Government, James Wilson on, 43.


poorly taught in Constitution, 171.

therefore make poor judges, 172.

Legislative Department: See Congress, Legislature.

Legislators, elected year before Eighteenth Amendment proposed, 80.

Liberation of people from Government brings progress, 3.


in opinion violated by Conventicle Acts, 10.

root in theological controversy, 12.

and Authority, struggle between, 13.

in English Bill of Rights above Government, 16.

and unlimited Power incompatible, 19.

of Man and Power of Government, theme of book, vii.

as defined in history, 23, 26.

in Charter of 1101, 24.

Magna Charta, 24.

means limitation on Power, Mill, 24.

Habeas Corpus Act, 25.

Instrument of Government, 25.

American Declarations of Rights (1765, 1774); 25.

Virginia Bill of Rights, 26.

Declaration of Independence, 27.

"unalienable," 26.

Blackstone's definition of, 27,

Paine's, 29.

Dickinson's, 30.

means security for minority, 32.

secured by liberal construction of Constitution, 48.

of competent men, Legislation must respect, 86.

possession absolute, use relative, 96.

Justice Brewer on, 107.

at time Constitution adopted is guide, 101.

existed before Constitution, 123.

not adequately discussed through radical changes, 153.

concurrently assailed by State and Nation, 128.


feared by Colonists, hence constitutional bonds, 18.

practically unknown in Europe, 18.

"intrepid confidence in own strength," Madison, 191.

bound down in Western Hemisphere, 18. tyranny of, Burgess quoted on, 81.

using other people's money, 164.

Limitation on Power,

John Marshall on, 72, 170.

liberally construed for Liberty, 69, 70, 203.

not applied in liquor cases, 104.

Lincoln, on constitutional Liberty, 28.

Local government favored by Jefferson, 63.

London "Spectator," on American resources and property, 2.

Lord Acton on theological root of Liberty, 12.

Macaulay, prediction of homebred Huns, 4; quoted on forbidding, 126.

Madison, on useless limitations without courts, 55; ambitions of Congress, 60, 61, 68; "despotic government," 152; quoted on seductions of Legislative Department, 192; fallible and ambitious Congress, hence veto, 195; quoted against Maternity Act, 210.

Magna Charta, Liberty in, 24.

"Major voice of the community," Hamilton on, 34.


Roosevelt quoted, 5.

not to be implicitly obeyed, Roosevelt, 5.

Lincoln on restrained, 28.

not supreme in United States, 32.

Bryce on fatalism of, 32.


to be let alone by Government, idea in America, 1.

victim of all governments in 1776, 6.

supremacy of, stated in Declaration of Independence, 6.

first fixed in Constitution of United States, 7.

miserable condition of before Constitution, 19.

competent, rights cannot be destroyed by Government, 86.

Manhandling by officeholders, 64.

Marshall, Chief Justice, defiance of President Jefferson's power, 56; on disregard of limitations, 72, 170; explained Commerce Clause, 131; said Nation cannot tax for State subject, 209.

Massachusetts v. Mellon, Maternity Act examined, 204.

Massachusetts sprang from conflict between Authority and Liberty, 11.

Master, one better than many in Government, 8.

Maternity Act,

Supreme Court without jurisdiction to spend money beyond constitutional authority, 205, 207.

Madison wrote against principle, 210.

Mayflower, the, and its people, 10.

Michaelson v. United States, examined, 176.

Mill, John Stuart, on religious challenge to authority, 12; defines Liberty, 24; quoted on power of Government, 95.

Mind and study beyond governmental power, 35. legislative control of approved by State courts, 164.

Minimum wage case mentioned, 46.

Minority, security of is test of Liberty, 32.

Mischievous Power never controlled, v.

Jefferson on, 18.

Moral philosophy, too much in judicial decisions, v.

Morris, Gouverneur, cited by Roosevelt, 5.

quoted against Eighteenth Amendment, 149.

Mugler v. Kansas,

stated, 57, 59.

reviewed, 90.

as precedent on oleomargarine, 154, 155.

dissimilarity to Oleomargarine case stated, 161.

McGrain v. Daugherty,

analyzed, 183.

leaves Man unprotected before trial, 202.

Napoleon on vice supporting Government, 99, note.

Narcotic Drugs Act considered, 212.


has only conferred powers, 69.

control of local affairs by, mistake, 76.

not supreme over States, 84.

New York Court held void oleomargarine law, 156.

Noble State Bank v. Haskell criticized, 164.

Obiter dictum followed by U. S. Supreme Court, 115, 122.

Officeholders manhandling citizen, 64.

Oleomargarine case,

based on Mugler decision, 155,

upheld Pennsylvania legislation, 156,

New York decision to contrary, 156,

criticized by Judge Dillon, 159.

not parallel with liquor case, 161.

Original Package law and decision, 129.

"Other people's money" and statesmen, 164.

farmers help build city crossings, 175.

Paine, Thomas, definition of Liberty, 29; on arbitrary power in Government, 91.

Passive obedience to Kings supported by great men, 15.

Pennsylvania legislature "elective despotism," 159.

Petition of Right considered, 13.

People, miserable condition of in Europe, 19, 21.


prescriptions regulated, 62.

report on, 64, 65.

State laws on, 66.

false reasoning on, 74.

unoffending loses Liberty, 163.

Pierce v. Society, etc., 38.

Police Power, and its limits, defined, 58, 99, 103.

retained by States over liquors, 63.

discussed as to origin, 62.

local to Nation mistake, 76.

States highly organized for, 76.

competent to abolish saloon, 99.

law of stated by authority, 100.

cannot abridge constitutional right, 102.


never held unconstitutional, 127.

took away right to make or eat oleomargarine, 155, 156.

made solvent banks pay insolvent's debts, 167.

Portia would not hear "good cause," 155.

Possession of liquor held illegal, 127.


Jefferson on, 18.

unlimited not compatible with Liberty, 19.

justified only by necessity, 45.

Congress reaches for, 152.

"enlarged" in liquor cases, 162.

not always checked by Judicial Department, 60.

of Nation entirely conferred by Constitution, 69.

extent of not determined by claimant, 150.


blended, make despotism, 152, 185.

separation of essential to Liberty, Hamilton, 182.

distribution in Constitution, 192, 193.

encroachment on intolerable, 200.


affecting Liberty and Property, x.

Tacitus quoted on, v.

Cæsar quoted on, 125.

peril of in prohibitory cases, 125.

Mugler case as, 154.

Press not educated in Constitution, 34.

Progress, American, from individual effort, not governmental help, 2.

evolution, not manufacture, Spencer, 77.

Progress follows liberation of people from Government, 3.

Prohibition, absolute, is unconstitutional, 58, 59, 99.

Prophecy in liquor cases unreliable, 163.

Property, private taken by public, 170.

Railways, Canadian National, socialistic burdens, 2.

control by Government in war time costly and unsatisfactory, 2.

Recall of judicial decisions in politics, 44, 45.

Reed Amendment, upheld by Supreme Court, 136.

operated against State law, 137.

stopped interstate commerce, 138.

Regulation of physicians' prescriptions, 62.

"Regulation" of right, confused with "destruction," 58, 162.

used interchangeably with prohibition, 164.

Right cannot be denied by regulation, 58.

Roosevelt, against implicit obedience to majority, 5;

on folly of Legislature controlling Executive, 18, note.

Root, Elihu, on "lost and forgotten faith," 193.

Rousseau, on supremacy of General Will, 9.

"Rule of Reason," in Kansas, 105.

Saloon, State could legally abolish, 99.

Schools and Universities neglect to teach Constitution, 4, 50, 89, 90.

private, cannot be abolished, 38.

Search and seizure, doctrine expounded, 48.

Self-government, what is prospect of, 171, 172.


interfered in case in Supreme Court, 67, note.

investigation of Attorney-general, 183.

conferred power on self, 184.

charged crime, which is for grand jury, 186.

impeachable offense, for House of Representatives, 188.

arrest by, exercise of judicial power, 185.

disqualified itself for impeachment trial, 189, 190.

cannot legislate atone, 188, 194, 196.

in error, under early decision, 192.

Supreme Court's distinction, 192.

reversal of lower court, 196.

can manhandle an American with impunity, 202, 203.

judicial power not conferred by Constitution, 203.

"implied," by Supreme Court, 203.

Separation of powers essential to Liberty, 182.

Sixth Amendment, for speedy public trial, 187.

Socialism, failure in railways and like undertakings, 2.

Solomon, dream of on good Government, 22.

Sociology omitted from discussion, vii.

Spencer, Herbert, progress evolution, not manufacture, 77.


authority of best for "home concerns," Jefferson, 4.

tending toward centralization at Washington, 4.

concurrent power under Eighteenth Amendment, 73.

rapidly going "dry" when Eighteenth Amendment proposed, 75.

to be preserved as well as Nation, 84.

Supreme Courts of upheld questionable laws, 40.

have lacked firmness, 52.

committing suicide, 86.

going "dry," enumerated, 75.

Struggle between Liberty and Authority, 13.

Supreme Court,

many Englishmen see lack of, 18.

Bryce on peril of, 59, 60.

attacks on recently, 34, 151.

quoted in Mugler case, 91, 92.

failed to define Liberty, 90, 97.

decision encouraged drastic legislation, 91, 101.

overlooked Liberty of competent man, 92.

accepted judgment of State as final, 102.

relied on inapplicable decisions, 102.

followed obiter dictum of Chief Justice Taney, 116.

its citations analyzed, 117, 123.

has receded on limitations on Power, 126.

held possession of liquor may be prohibited, 126.

conceded police power in Nation, 139, 140.

in other than liquor cases, 154.

unavailing references to constitutional safeguards, 157.

on "discretion" of State legislatures, 158.

saw no danger from liquor precedents, 161, 162.

on "enlarged powers" respecting liquor, 162.

poor prophecy in liquor cases, 163.

sustained state bank guaranty laws, 165, 167.

sustained Congressional invasion of Judicial Department, 176.

yielded substance while declaring principle, 182.

failed to check Senate's disregard of limitations, 183.

left Congress at large in Maternity Act case, 204, 208.

"Supreme Law of the Land,"

attempts at failed in England, 14.

is Constitution, not General Will, 38.

is it State Legislation? 156.

Tacitus, quoted on precedents, v.

Taxpayer as litigant, diminishing, 207,

Chief Justice Marshall favored, 209.

Teaching of Constitutional philosophy neglected, 4, note.


natural growth rapid, 77.

promoted by employers, 76.

by prosperity, 77.

Tenth Amendment,

caps Bill of Rights, 68.

doubts should have favored it, 82, 83.

Thackeray, quoted on miseries of people, 20.

Theological controversy root of Liberty, 12.

Transportation is commercial, trial court held, reversed, 140, 143.

Transported in commerce, liquor in valise so held, 137.

Tributes to constitutional Judicial Department, 50.

Tucker, Henry, St. George, on limits to congressional spending, 206, note.

Utopia, Congress at large in as spender, 204, 206, 208.

Veto, devised to meet ambitions and errors of Congress, 195.

Volstead Bill,

unconstitutionally passed over veto, 144, note.

vetoed by President Wilson, 144, note.

Washington, on educated public opinion, 49; on moderation in judgment, 98.

Webb-Kenyon law,

changing character of interstate

shipments, 132.

vetoed by President, 133.

repassed by insufficient vote, 133, note.

upheld by Supreme Court, 134.

"Wet" or "dry" not considered, ix.

White Slave Act considered, 212.

Wilson, James, on representatives' proper independence, 5; independent judges, 41; purpose of Government, 42; on lawlessness in Government, 43.

Wilson law (original package) upheld, 128.

Wilson, President, vetoed Volstead bill, 144, note.

Wine-making in homes, 141, and note.

Wisconsin, Supreme Court upheld equity power, 181. note.

World of 1776, from which came the Constitution, 6.