IN FAVOR TO POLITICIANS AND TO LABOR UNIONS, CONGRESS PURSUED ANOTHER
METHOD OF ATTACK ON THE COORDINATE JUDICIAL DEPARTMENT
Another form of attack by Congress on the courts of
the Constitution was in legislation directing them how to try cases.
In 1910 it passed an act forbidding the issue of an injunction against the
operation of a law of a State except in a specified way.
In 1913 it passed a similar law forbidding the restraint by injunction of an
order of the Interstate Commerce Commission except on conditions laid down.
And in 1932 Congress enacted the Norris-LaGuardia Act for denying injunctive
relief to an employer, except under annoying conditions which might deny
relief, where a labor question is involved.
Those invasions of the rights of litigants and the liberties of the American
will be examined.
Constitutional Convention forbade Congressional dictation to courts
Prefatory to a discussion of the three intrusive acts of Congress mentioned,
a quotation should be made from the record of the Constitutional Convention
(Formation of the Union, p. 625) of August 27, 1787, only twenty-three
days before the signing, when there was under consideration "the Judicial
"The following motion was disagreed to, to wit, to insert 'In
all other cases before mentioned the Judicial power shall be exercised in such
manner as the Legislature [The Congress] shall direct.'"
So the Constitutional Convention explicitly refused to authorize the
Congress to "direct" the judicial power in any respect whatever. How
Congress has lawlessly directed it, nevertheless, and how the courts
have lawlessly submitted to the forbidden dictation, are to be seen.
The act of 1910 forbade the courts of the United States to grant an
interlocutory injunction "restraining the enforcement ... of any statute
law of a State," or of any order made thereunder by a board, "upon
the ground of the unconstitutionality" of such statute, "unless the
application" be "heard and determined by three judges, of whom at
least one shall be a justice of the Supreme Court or a Circuit Judge, and the
other two may be circuit or district judges, and unless a majority of the said
three judges shall concur in granting such application."
States objected to constitutional restraints
Some of the States had felt wounds in their dignity when a citizen who
believed a tax law, for example, was intended to effect what President Coolidge
later termed "legalized larceny," went into a court of the United
States asking a restraining order upon the officers executing the law until
there could be a full hearing on evidence. In addition to that, those were
field days for the alien minded who omitted no opportunity to "go
after" the Judiciary, which Von Holst rightly called the keystone of the
Of course, the Fourteenth Amendment forbids the State to "deprive any
person of life, liberty or property without due process of law." That is,
he must have a hearing when he asks it before his property is taken by taxation
or otherwise. It was the constitutional intent that the legislature should not
take property by fiat. And that was imbedded in the Constitution 46 years
before the confiscation of private property was begun by Government through the
"graduated" income taxes of Communism.
Article III, establishing the Judiciary, "extends" the
"judicial power" to all cases arising under the Constitution, under
the laws of the United States, under treaties; to cases affecting ambassadors,
other public ministers, consuls; to controversies between two or more
States, between a State and citizens of another State,
between citizens of different States, between a State or the
citizens thereof and foreign states, citizens or subjects.
Thus, ample provision was made for the States to use the courts of the
Nation. But in the foregoing recital the States are ranked as litigants on
the level with ambassadors, consuls, and citizens. No thought was
entertained that a State as a litigant should be regarded as any higher than a
man. Why should the creature, the State, be above the man, who created it?
Preference of State against Man not authorized
Since the Constitution left the State as a litigant on a level with the man,
as it clearly did, where did Congress get the power to change that arrangement
of the Constitution and put the State above the man? Only the people, by
amendment, could make that change. Yet the courts submitted to the lawless
dictation. The first judge appealed to under the meddling act should have
refused to call two other judges, should have heard the application, granted or
denied a restraining order or injunction, and let the losing party make a test
of the law in the Supreme Court of the United States, which would then be in a
position to sustain the Judiciary "in all its dignity and vigor," as
President Cleveland sustained the Executive Department against encroachment by
the Senate, and as Hamilton said in The Federalist that each Department
would take pride in maintaining its prerogatives against one or both of the
Act of Congress interference with procedure
The act forbade that the application for a restraining order or injunction
"be heard or determined before at least five days' notice of the hearing
has been given to the Governor and to the Attorney General of the State, and
such other persons as may be defendants in the suit." But if it should
appear that irreparable loss or damage would result unless a temporary
restraining order be granted, then one judge should give that relief.
As Article III set up the Supreme Court and then authorized Congress to
"ordain and establish" such "inferior courts" as might be
necessary, it was within the competence of the Legislative Department,
probably, to establish a three-judge court. In 1891, to take from the Supreme
Court part of its load, Congress established nine (now eleven) Circuit Courts
of Appeals of three judges each. But to establish courts to meet the needs of
the people is quite another thing from trying, or partially trying, cases in
"The judicial power of the United States" to try and adjudge
cases, the Constitution put in "one Supreme Court and such inferior
courts" as might be needed. That forever fixed judicial power until the
people determine that it should be withdrawn from the courts and vested in the
Congress or elsewhere.
No judicial power possessed by Congress
Congress may prescribe the jurisdiction of a court which it
establishes (like the Court of Claims and the Court of Customs and Patent
Appeals), but not the power. "The judicial power," says
section 2 of Article III, "shall extend to all cases in law and
equity." This power is poured into the courts by the people through their
Constitution. Congress has no judicial power to confer.
Apparently emboldened by the success — or lack of opposition —
which attended the act of 1910, Congress again dictated to the Judicial
Department, in 1913, setting up a three-judge court and laying down with the
fullest particularity the steps which the court would be permitted to take in
injunction proceedings arising out of orders entered against citizens by the
Interstate Commerce Commission.
Congress unduly magnified Interstate Commerce Commission
Again, why should the Interstate Commerce Commission, a bureau of Congress,
have a court of three judges, when a court of one judge must meet the needs of
the American, who created all that there is in and under government? This
question is particularly pertinent in view of the fact that during the 63 years
of the Commission no President has ever appointed to it a railroad man of
standing in the field of transportation, finance or traffic, or a shipper of
prominence, in the world of commerce. The body never has been what the
President and the Senate should have made it — what the commerce of the
country and those engaged in it were entitled to have to serve them. Then, why
should its decisions be made so nearly immutable by restrictions on judicial
procedure withholding from the American his liberty to seek justice?
Why put Interstate Commerce Commission above American?
As a specimen of the work of the Commission which the Congress was so
desirous of making nearly immune to attack by aggrieved citizens, the
reorganization of the Chicago, Milwaukee, St. Paul and Pacific Railroad Company
will be stated.
Owing to the unemployment of 9,935,000 in the United States, there was a
great shortage of production, which means that the railroads lacked freight
tonnage and passenger travel, which means that many of them could not pay their
way. In 1935, the Milwaukee Company filed a petition for reorganization with
the Interstate Commerce Commission in pursuance of an act of Congress. Evidence
was received in the year named and in 1936 and 1937. While the case was on
trial the number of unemployed rose to 10,932,583, as reported by the American
Federation of Labor.
The plan of reorganization approved by the Commission wiped out all the
preferred and common stock. On March 15, 1943, the Supreme Court of the United
States upheld the finding of the Commission.
A year before that, in 1942, the net profits of the Milwaukee after interest
and taxes were $12,174,831. In 1943 the net profits were $29,413,623.
Interstate Commerce Commission failed to see point
That shows that the railroad was in fit condition to handle traffic when the
United States should be in condition to provide it. The United States needed
reorganizing, not the railroads.
Shortly after the investments of the holders of preferred and common stock
had been wiped out, the Company paid off a large volume of its old bonds. That
is only one of many like cases of railroad reorganization in destruction of
investments. The grossness of the injustice caused talk by members of Congress
It was decisions of that sort that Congress did not want the damaged
American citizen to attack in court except under annoying difficulty and delay!
In 1932 Congress revamped a line of legislation respecting labor and told
the Judicial Department of the Constitution just what it could do and what it
could not do about the issuing of injunctions in cases affecting labor.
Norris-LaGuardia Act denial of justice
The minority report of the committee of Congress on the bill said that in
practice it would amount to a denial of the rights of the employer. He was
virtually outlawed. To be sure, that was the intention — that is what a
powerful voting group demanded that Congress give it. And Congress responded to
the demand, just as it bowed to the same group five years later and passed the
National Labor Relations Act, to the appalling hurt of the States whose
Congressmen enacted it.
Those three acts of Congress were definitely lawless and against the liberty
of the American. The courts were lawless when they submitted to the
intimidations, and the organized Bar maintained a masterful inactivity while
the undermining of constitutional government was in open progress.
Historic relief by injunction made clear
The "judicial power" which was poured into the courts by the
Constitution was that inherent in the courts of England in 1787. It was brought
to America by the colonists. What it was is plain.
Blackstone, whose lectures were taught in the College of William and Mary to
Virginians who helped write the Constitution, told the youth at the University
of Oxford a quarter of a century or more before 1787 just what were the
inherent powers of a court of equity with respect to the restraining order, or
the temporary injunction, and the permanent injunction:
"But if an injunction be wanted to stay waste, or other injuries of an
equally urgent nature, then upon the filing of the bill [called application in
the acts of Congress reviewed], and a proper case supported by
affidavits, the court will grant an injunction immediately, to continue
until the defendant has put in his answer, and till the court shall make some
further order concerning it; and when the answer comes in, whether it shall
then be dissolved or continued till the hearing of the case, is determined by
the court upon argument, drawn from considering the answer and the affidavit
together." — 4 "Commentaries on the Laws of England," 443.
That language defined the power of a court of equity with respect to the
injunction when the Constitution was written. Consequently that is what the
Convention put into the Constitution when it provided:
"The judicial power shall extend to all cases in law and
Congress powerless to defeat constitutional injunction
What a court of equity could do then it can do now. That is constitutional.
Being constitutional, it can be taken out of the Constitution only by
amendment. Congress can no more change or control the judicial power than it
could wipe away the Bill of Rights. Indeed, this provision extending the
judicial power to cases in equity is one of the many bills of right written in
the body of the Constitution.
The court of equity established by the Constitution having had the power, as
Blackstone shows, "to grant an injunction immediately," without
notice, upon the filing of an application with affidavits proving that, if it
be not granted without delay, irreparable damage will be sustained by the
applicant, that power cannot be withdrawn or modified by Congress.
Rule of Supreme Court protected all
By Equity Rule 73 of the Supreme Court of the United States, governing the
lower courts also, long in effect, meticulous care was taken to prescribe
procedure in injunction cases — not alone in cases affecting the powerful
group unconstitutionally favored by the Act of 1932, known as the
Norris-LaGuardia Act, but in suits of all Americans.
The Rule directs (1) that no preliminary injunction issue without notice;
(2) that no temporary restraining order be granted without notice unless it
clearly appear from specific facts presented, under oath, that immediate
and irreparable damage will otherwise result, and (3) that the temporary
restraining order mentioned be brought to hearing "at the earliest
possible time, and in no event later than 10 days."
That rule required notice to interested persons and parties — to
States and to the Interstate Commerce Commission. It required the oath
for the temporary restraining order, as described by Blackstone. It required
speedy hearing. It gave to defendants complete protection, and the acts of
Congress were as needless as they were invalid.
Judiciary in need of protection
On the Judiciary's being the weakest of the three Departments to defend
itself, and on the need therefore of its receiving protection, Hamilton wrote
in No. 78 of The Federalist:
"The Judiciary, from the nature of its functions, will always be the
least dangerous to the political rights of the Constitution, because it will be
least in capacity to annoy or injure them. The Executive not only dispenses the
honors, but holds the sword of the community. The Legislature [Congress] not
only commands the purse, but prescribes the rules by which the duties and
rights of every citizen are to be regulated. The Judiciary, on the contrary,
has no influence over either the sword or the purse; no direction either of the
strength or of the wealth of the society; and can take no active resolution
whatever. It may be truly said to have neither force nor will,
but only judgment; and must ultimately depend upon the aid of the Executive arm
even for the efficacy of its judgments. ... It can never attack with success
either of the other two; and all possible care is requisite to enable it to
defend itself against their attacks."
But government by the educated is in prospect
In June, 1947, the Governor of Missouri signed a bill to require the
teaching of the Constitution in all schools from the Seventh Grade up and in
colleges and universities, and to forbid a degree of graduation to be given to
any student until a rigid examination in the Constitution has been passed.
In the same month the dispatches reported that a similar step had been taken
by the Legislature of California.
When the legislatures of all the other States follow those wise examples it
will soon be impossible to draw from the population weak Congresses or Courts
or Legislatures or Executives.
1. The Norris-LaGuardia Injunction Bill of 1932 passed the
Senate by a vote of 75 to 5. The House passed it by 363 to 13. The employers of
the country whose equipment for production and transportation had won the first
World War were all but friendless in the Government which had been saved.