LOSING LIBERTY JUDICIALLY
Prohibitory and Kindred Laws Examined
THE MACMILLAN COMPANY
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THOMAS JAMES NORTON
OF THE CHICAGO BAR
"THE CONSTITUTION OF THE UNITED STATES: ITS SOURCES AND ITS APPLICATION"
THE MACMILLAN COMPANY
COPYRIGHT, 1928, BY THE MACMILLAN COMPANY.
Set up and printed. Published September, 1928.
BY BROWN BROTHERS LINOTYPERS
PRINTED IN THE UNITED STATES OF AMERICA
THE CORNWALL PRESS
MY SISTERS SARA AND KATHARINE
"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
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
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
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
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
THOMAS JAMES NORTON.
Chicago, July, 1928.
THE GREAT DESIGN OF THE CONSTITUTIONAL SYSTEM OF THE UNITED STATES IS
THAT THE GOVERNMENT SHALL LET THE MAN ALONE.
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
THE JUDICIAL DEPARTMENTS OF THE STATES AND THE JUDICIAL DEPARTMENT OF
THE NATION HAVE FAILED TO MAINTAIN IN SOME INSTANCES, NOTABLY WITH RESPECT TO
LIQUOR LAWS, THAT BALANCE BETWEEN THE POWERS OF GOVERNMENT AND THE LIBERTY OF
THE MAN WHICH THEY WERE ESTABLISHED TO PRESERVE.
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
OTHER DECISIONS OF THE SUPREME COURTS OF STATES AND THE SUPREME COURT OF
THE UNITED STATES HAVE UPHELD USURPATIONS OF POWER AND INVASIONS OF LIBERTY AND
PROPERTY BY THE LEGISLATURES OF THE STATES AND THE CONGRESS.
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 .............
VI. Legislative Department Scores Again .... 204
THE DECLARATION OF INDEPENDENCE......217
THE CONSTITUTION OF THE UNITED STATES .... 222
LOSING LIBERTY JUDICIALLY
THE GREAT DESIGN OP THE CONSTITUTIONAL SYSTEM OF THE UNITED STATES IS
THAT THE GOVERNMENT SHALL LET THE MAN ALONE
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
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
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.
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
 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
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
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
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
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 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." 
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.
 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.
 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
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
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 Mediśval 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
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
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
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
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
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  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.
 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."
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
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
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
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
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,
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
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
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
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,
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."
 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
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 reŽnforce 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
"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." 
 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
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,
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
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
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
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
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
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
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
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
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
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
"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
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.
THE JUDICIAL DEPARTMENTS OF THE STATES AND THE JUDICIAL DEPARTMENT OF
THE NATION HAVE FAILED TO MAINTAIN IN SOME INSTANCES, NOTABLY WITH RESPECT TO
LIQUOR LAWS, THAT BALANCE BETWEEN THE POWERS OF GOVERNMENT AND THE LIBERTY OF
THE MAN WHICH THEY WERE ESTABLISHED TO PRESERVE
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
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
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
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
 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:
|| No. of Members
|| No. of Employes
|| No. of Cases
|| No. of Reports
|| No. of Hearings
| 1887 (created)
|| $ 113,000
* 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
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
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
 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
 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
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
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
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
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
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."
 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
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
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
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?
 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
"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
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
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
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
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
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
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
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.
 "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
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
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
in Major Actions
|| 18th Amendment
||200 days of
|| Dec. 19 Proposed
||Chateau Thierry .....
||Belleau Wood-Vaus ..
||Noyon, Montdidier ...
||St. Mihiel ...........
||U. S. Army in Lorraine
||U. S. Army in Rhenish Prussia
||U. S. Army in Mayence
|2,084,000 men (42
|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
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
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. In a great case arising out of the
Civil War (Texas v. White, 7 Wall. 700, 725) this language was used by the
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.
 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
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
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
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
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. 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
 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
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
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
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."
 "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
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
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.
 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
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
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
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
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
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
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
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
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
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
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 reŽnforce 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
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
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
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
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
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
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 Cśsar 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
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.
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. This was an example of
that compulsion of propagandism which is mistaken for popular opinion and
before which the Legislative Department quails.
 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
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
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
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
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
 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
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
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
 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
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
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
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.,
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
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  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).
 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
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
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 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."
 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
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.
OTHER DECISIONS BY THE SUPREME COURTS OF STATES AND THE SUPREME COURT OF
THE UNITED STATES HAVE UPHELD USURPATIONS OF POWER AND INVASIONS OF LIBERTY AND
PROPERTY BY THE LEGISLATURES OF STATES AND THE CONGRESS.
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
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
"'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
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
"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
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
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
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
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
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. 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?
 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
The United States District Court of Kansas held
unconstitutional a similar law of that State. The decision was
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
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
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
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
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
If burdens imposed are so great that the road cannot be run at a
profit, it can stop, whatever misfortunes the stopping may
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
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
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
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
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
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
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
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. 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."
 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
"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
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
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
This discussion will be without any reference to persons who may be
guilty or innocent — it will relate solely to constitutional principle and
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
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
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
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." So the road to
impeachment is wide.
 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
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
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. 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.
 "The American Revolution," p.
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
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
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. 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.
 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
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
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
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
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
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
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
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
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
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 reŽnacted. 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
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
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
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  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.
 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
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
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
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
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
 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
 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
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
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
It would have been pleasanter not to write in criticism; but, as Thomas
H. Benton said, the important consideration is, not sentiment, but public
"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.
— JOSEPH H.
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,
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.
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.
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,
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.
failed from inexperience of people, 8.
based on erroneous theory, 9.
Carlyle quoted on, 19.
recalled by attacks on courts, 151, note.
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.
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.
overloaded with moral philosophy, v.
recall of in politics, 44, 45.
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.
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.
Blackstone's definition of, 27,
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,
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,
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.
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.
as precedent on oleomargarine, 154, 155.
dissimilarity to Oleomargarine case stated, 161.
McGrain v. Daugherty,
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.
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
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.
Cśsar 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,
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,
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.
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.
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,
Utopia, Congress at large in as spender, 204, 206, 208.
Veto, devised to meet ambitions and errors of Congress, 195.
unconstitutionally passed over veto, 144, note.
vetoed by President Wilson, 144, note.
Washington, on educated public opinion, 49; on moderation in judgment,
changing character of interstate
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.