THE EXPANSION OF THE CONSTITUTION BEYOND ITS LETTER AND SPIRIT THROUGH
JUDICIAL LEGISLATION BY THE SUPREME COURT OF THE UNITED STATES IS, BECAUSE
INSIDIOUS THE WORST THREAT TO LIBERTY AND PROPERTY
This chapter deals with the attempts of the Supreme
Court of the United States to "construe" into the Fourteenth
Amendment — restraining the States — what was not written in it, what
the writers of it did not have in mind that is, "freedom" of
religion, freedom of speech, and freedom of the Press.
The writers of the Amendment had under consideration (1866) the recently
(1865) liberated Negro, to whom the Amendment would give citizenship in both
his State and the United States; and it forbade the States to "abridge the
privileges or immunities of citizens of the United States," or to deprive
any person in a State of "life, liberty or property without due
process of law," or to deny to him "the equal protection of the
laws" of his State.
Freedom of religion, freedom of speech, and freedom of the Press were
safeguarded (1789) against denial by the National Government 77 years before by
the First Amendment, the first article of what we call the Bill of Rights, in
protection of the States and the people against interference by the National
The search for the unperceivable
The Supreme Court has held in recent years that the word
"liberty," italicised in the foregoing quotation from the Fourteenth
Amendment, against the States, is the equivalent of, or connotes, or contains,
the "freedoms" of religion, speech, and Press, written against
Congress in the First Amendment.
That reading ignores two cardinal rules of interpretation: (1) that the
plain language must be followed, without addition or subtraction; and (2) that
there must be kept in mind the evil which the writing was being made to cure.
First, the Fourteenth Amendment makes no mention of religion, speech, or
Press. They cannot be drawn into it and be made a part of it by an expansive
"construction" of the word "liberty."
Second, the writers of the Amendment were dealing only with the Negro and
his "liberty" and prospective rights, which were to be protected.
Religion, speech, and Press were as far away from their thoughts as the poles
Judicial deviation from Constitution most serious
When Congress, cloaking itself with the Commerce Clause of the Constitution,
makes an enactment like the National Labor Relations Law, which shows by its
name that it is not an act to regulate commerce among the States, the educated
American is alerted. He should immediately do something about it. Rut at that
time he didn't. He should have driven out of Congress every man that voted for
the degradation of his State from its place in the Union of States.
But when, by specious reasoning, or no reasoning at all, by
"assumptions," the Supreme Court makes application of constitutional
provisions where they do not belong, the departure from principles is less
likely to be noticed.
For a good many years the Supreme Court has had trouble with "due
process of law" in the Fifth Amendment to the Constitution, restraining
the Nation, and in the Fourteenth, curbing the State. It has been perplexed
about the application of "the privileges and immunities of citizens of the
United States" in the Fourteenth.
Chief Justice Marshall on following the text
That has been owing to its failure to adhere to the text. On adhering to the
text the great Chief Justice Marshall, in a dissenting opinion, gave these
directions in 1827 (12 Wheaton, 213):
"To say that the intention of the Instrument must prevail; that the
intention must be collected from its words; that its words are to be understood
in that sense in which they are generally used by those for whom the Instrument
was intended; that its provisions are neither to be restricted into
insignificance, nor extended to objects not comprehended in them, nor
contemplated by its powers, is to repeat what has been already said more at
large, and is all that is necessary."
The tragic effort of the Supreme Court has been in trying to make the
Fourteenth Amendment bring down against the States prohibitions in the Bill of
Rights written against National power only.
Of course, if the people should want the First Amendment, for example,
applied against State power, they can say so by action under their amending
Article V. But it is not for the Judiciary to do the amending.
Could the States have intended to restrain themselves?
When, upon the submission by the Constitutional Convention to the States of
the proposed new form of government, they complained that it did not contain
restrictions enough on power, did they mean that they themselves would not be
sufficiently curbed? Certainly not. The question is self-answering.
If the States could not have intended by the First Amendment to curb
themselves, why should the Supreme Court take authority to bring against them
that Article of their Bill of Rights?
The question with the States was: would the over-all government eventually
become absolutely over-all? They were determined that it should not.
They got protection through ten amendments, the Bill of Rights, not one
prohibition in which restrains the States in any way.
From the beginning both the States and the Nation proceeded on that fact.
Many of the States abandoned the grand jury which the Nation is required
(Amendment V) to employ and dispensed with the indictment. In some States if
the accused does not take the witness stand to explain, that may be used
against him before the jury, a practice forbidden in the Federal courts. Some
States permit the trial of criminal cases without a jury, a practice forbidden
to the Nation. Others employ a jury of fewer than twelve. The unanimous verdict
has been succeeded by the majority verdict of the jury in some States. The jury
in suits for money (Amendment VII) is not called in many States.
States provide protection for their people
Most if not all of the constitutions of the States have their own
provisions, like those in the Bill of Rights (Amendment VIII) against excessive
bail, excessive fines, and cruel and unusual punishment.
But the Bill of Rights is strictly a barricade against the exertion of
National power. It was so treated down to about the time (1926) that an inquiry
by the American Bar Association revealed that out of 25 leading university law
schools only 8 required a course in the Constitution as a condition to a
degree! That may have been the origin of scrambled brains in the law of the
Since the States demanding the Bill of Rights did not intend it to be
operative against themselves, and since the States and the Nation so accepted
it for near a century and a half, how in reason can a court now make an
unintended application of any provision of it and act as pedagogue to a State?
States are Republics, independent in most respects
It is to be kept in mind that by section 4 of Article IV of the Constitution
"the United States shall guarantee to every State in this Union a
Republican form of Government." Every one of the forty-eight States is a
Republic, has a Constitution of its own, with an Executive Department, a
Legislative Department, and a Judicial Department, fully equipped to manage its
own internal affairs. Fear that the National Government would not let those
republics alone, made the original States add to the Constitution the Bill of
Rights against it.
The first sentence of the Fourteenth Amendment is this:
"All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside."
That dual citizenship had always existed except as to those in slavery. In
the Constitutional Convention that was expressed by James Wilson of
Pennsylvania, the leading lawyer of the body, afterward a justice of the
Supreme Court of the United States:
"A citizen of America is a citizen of the general government, and is a
citizen of the particular State in which he may reside."
Citizenship intended by Civil War Amendment
The Fourteenth Amendment was intended to give to the liberated Negro both
citizenships, but the language is broad enough to include others, and it has
been so applied.
The second sentence of the Fourteenth Amendment, which has become a
Pandora's Box of evils, is this, with insertions in brackets to show how it had
been read by the Supreme Court down to recent times:
"No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States [springing from
National citizenship]; nor shall any State deprive any person of life, liberty
or property without due process of law [of the State]; nor deny to any person
within its jurisdiction the equal protection of the laws [of the State]."
The meaning of "liberty" considered
In the Fifth Amendment that language precisely as to "liberty" had
been written against the Nation — "nor be deprived of life,
liberty or property without due process of law." The writers of the
Fourteenth Amendment, against the States, 76 years later, copied that
language from the Fifth. The rule is that language thus borrowed carries into
the later position the meaning that it expressed in the earlier position.
As the First Amendment deals openly and specifically with the
"freedom" of religion, speech, and Press, those subjects are
certainly not contained again in the Fifth concealed in the word
"liberty." The writers of that time were given to clarity, rather
than redundancy and confusion.
The set-up in 1789 of the First and Fifth Amendments in the Bill of Rights
refutes the theory that "liberty" in the Fifth carries again the
freedoms (of religion, speech, and Press) of the First. If, therefore,
"liberty" in the Fifth does not connote or contain freedom of
religion, speech, and Press, then those subjects are not embraced in the
"liberty" borrowed from the Fifth and inserted in the Fourteenth.
Accordingly, to read into "liberty" in the Fourteenth what was not
in the "liberty" which the writers of it borrowed from the Fifth is
to be guilty of "latitudinarian construction."
The purpose of the Fourteenth Amendment
The language of the Fourteenth Amendment is so clear that it does not need
the interpretation just given to it. The meaning is that the Nation cannot
enter a State except to enforce a right of National citizenship, as, for
example, the right to travel at will throughout this land, which California was
prevented (314 U. S. 160) from abridging by a law (1941) excluding from ingress
Second, it means that the Nation cannot enter a State in protection of
"life, liberty or property" unless the State (not individuals) denies
its due process in protection of a right springing from National
citizenship, as the right of the Negro to possess property and exercise
Third, it means that the Nation cannot enter a State to secure "the
equal protection of the laws" of that State unless those laws are
being administered to deny a right of National (not State) citizenship, as a
law denying suffrage to the Negro, while others enjoy it.
What Fourteenth Amendment did not contemplate
Nothing in the language of the Fourteenth Amendment just quoted indicates an
intention of the writers in 1866 to recast or rewrite the First Amendment
(1789) by inserting after "Congress shall make no law" the words
"nor shall any State," making the Amendment since 1868 read thus:
"Congress shall make no law [nor shall any State] respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of
Nothing in the Fourteenth Amendment just quoted imports an intention that we
should take the word "liberty" (written after Emancipation) to mean
the "free" exercise of religion, or the "freedom of speech, or
of the Press," dealt with by the writers of the First Amendment
seventy-seven years before.
When it comes to blending thus the First Amendment in the Fourteenth, or
mingling the provisions of the two, that can be done, not by assertions of the
Supreme Court, nor by the authority of Congress, even, but only by the
Constituent Assembly, the people exerting sovereign power as constitution
In all the years of litigation and argument respecting this matter no one
has ever dared to propose to the States an amendment for their ratification
which would emasculate them as they have been broken by decisions of the
Non-National subjects occupying Supreme Court
It is with matters which are of no constitutional concern to the Nation that
the Supreme Court has been overbusy of recent years, to the great confusion of
thought respecting our Fundamental Law.
It may be well to illustrate the manner and extent of this before taking up
the constitutional and judicial history which is to be the service of this
chapter. Parents of different religious denominations in Illinois arranged with
the board of education to have their children receive in the school building,
but out of class, from special teachers, religious instruction for half an hour
once or twice a week. The regulation was attacked as a violation by the State
of this clause of the First Amendment:
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or
of the Press."
To be sure, Congress never passed any such law. But it was assumed,
without any attempt at demonstrating, a practice which the Supreme Court had
been employing for many years, that the Fourteenth Amendment, just before
quoted in pertinent part, brought down against the States the First Amendment,
originally written, with all its companion articles in the Bill of Rights,
against action by the Nation only.
Illinois passed no law respecting religion
Accepting for the moment (but no longer) the assumption of the Court that
the First Amendment had been brought down to block action by Illinois,
the answer is that neither did Illinois pass any "law respecting an
establishment of religion, or prohibiting the free exercise thereof."
Consequently, no constitutional question could exist under the First
Amendment. And the Supreme Court of Illinois so decided.
On the simple facts given before on the use of the schoolrooms the Supreme
Court of the United States, speaking (1948) through Justice Black (333 U. S.
"This is beyond all question a utilization of the tax-established and
tax-supported public school system to aid religious groups to spread their
faiths. It falls squarely under the ban of the First Amendment (made applicable
to the States by the Fourteenth) as we interpreted it in Everson v. Board of
Education, 330 U. S. 1."
In the Everson case it was said:
"No tax in any amount, large or small, can be levied to support any
religious activities or institutions, whatever they may be called, or whatever
form they may adopt to teach or practice religion."
How the law should have been stated
What the Supreme Court should have said in the Everson case (after taking
jurisdiction of it when without authority to do so) is that Congress gets no
authority from the Constitution to spend money in the States for any school
purpose. And that schools, being within the inherent police jurisdiction of the
States, are entitled to support by the States — public schools, private
schools, and religious schools — provided only that a State constitution
does not speak in some respect to the contrary.
First, the Fourteenth Amendment did not make the First applicable to any
conditions in Illinois.
Second, no tax was levied for religious purposes. The use of rooms apart
from school classes could be no more objectionable than the use of them for a
meeting of a club or other local organization, a use very commonly enjoyed in
every town and city. It is too bad if the people cannot use their own buildings
for what they deem to be their own advantage — and that in an educational
The Supreme Court "mystified" the subject
The inaccuracy of the language of the Court, and its inapplicability to any
constitutional provision, brings to mind what was said in an opinion (100 U. S.
393) by Justice Bradley, a judicial stalwart, seventy years ago:
"We may mystify anything. But if we take a plain view of the words of
the Constitution, and give to them a fair and obvious interpretation, we cannot
fail in most cases in coming to a clear understanding of its meaning. We shall
not have far to seek. We shall find it on the surface, and not in the profound
depths of speculation."
That is to say, all that the Supreme Court had to do in the Illinois case,
assuming that the First Amendment had any bearing on it, was to examine
the record and find whether Illinois had passed a "law respecting an
establishment of religion, or prohibiting the free exercise thereof."
That, and that only, was forbidden. As shown in the quotation
hereinbefore made from Chief Justice Marshall, the Court had no right to extend
the language of the Amendment to something else.
When Judge Thomas M. Cooley was recognized as the constitutional authority
of this country he stated the rule that the court should keep in view the
conditions which caused the language to be written, else it will be made to say
something that the writers never thought of, and thereby may work great harm.
How to get meaning of First Amendment
The conditions which caused the First Amendment to be written in its brief
and clear language were those of law and practice in England which drove the
Pilgrims to Holland and thence to America, which made the Puritans set sail for
Massachusetts, which made William Penn take his fellow Quakers to Pennsylvania,
which caused Lord Baltimore to settle Maryland with his coreligionists; and the
conditions in America which drove Roger Williams and Anne Hutchinson from
Massachusetts to Rhode Island, and the law of Virginia which set up a State
Church supported by taxation, a law which Jefferson and Madison caused to be
Cooley told us in effect that when we consider the First Amendment we must,
in the words of St. Paul, "think on these things." Were any of those
things in Illinois? If not, then neither was the First Amendment operative
there, even though we "assume," as the Supreme Court did, that the
Fourteenth Amendment brought it down against the State.
Justice Reed, adhering to the text, dissented on the ground that the
question was on "an establishment of religion," forbidden by the
First Amendment, although he erroneously thought "the First Amendment . .
. made effective as to the States by the Fourteenth." But he was right
that "an establishment of religion" by Illinois must necessarily
appear to work a violation by it of the Constitution, admitting for the moment
the "assumption" of the Supreme Court.
The wide effect of the decision
The record in the case disclosed that in all but two of the States about
2,000 communities provided, by the use of school buildings or rooms, religious
instruction to more than 1,500,000 pupils. That work was upset without reason
— and contrary to law. The Republic of Illinois, one of the oldest, was
highly competent to manage constitutionally its own affairs, and the Republic
of the United States should have kept out of its jurisdiction.
In 1931, seventeen years before the decision in the case from Illinois, the
Supreme Court (283 U. S. 697) made a similar misapplication of the provision in
the First Amendment for the "freedom of the Press," Chief Justice
Hughes writing the opinion, and Justices Butler, Van Devanter, McReynolds, and
Sutherland dissenting. As that decision may have given some parentage to the
one in the school case, promulgated by younger and less experienced Justices,
it, too, will be examined preceding the Judicial history to be made.
The first definite trespass on State autonomy
The Republic of Minnesota, with a provision in its Constitution for the
freedom of the Press (as every other State has in its basic law), enacted that
the continued publication of libelous and scandalous matter would be regarded
as a nuisance and might be stopped by the writ of injunction. The law was a
valid exercise of police power by the State, and the Supreme Court of Minnesota
so held. The case was taken by appeal to the Supreme Court of the United
States, without jurisdiction to receive it, and the decision of the court of
last resort in Minnesota was reversed. The law provided for the suspension of
the libels only, not the periodical.
At the opening of the opinion the Chief Justice begged the main question, as
follows (brackets and italics inserted):
"It is no longer open to doubt that the liberty [a word not in the
First Amendment] of the Press, and of speech [in the First Amendment], is
within the liberty safeguarded by the Due-Process Clause of the
Fourteenth Amendment [nor shall any State deprive any person of life,
liberty, or property, without due process of law] from invasion
by State action."
That is, the Fourteenth Amendment makes applicable against the States the
prohibitions of the First against the Nation.
In support of his proposition the Chief Justice cited:
- Gitlow v. New York (1925), 268 U. S. 652 (666), by Justice Sanford
- Whitney v. California (1927), 274 U. S. 357, by Justice Sanford
- Fiske v. Kansas (1927), 274 U. S. 380, by Justice Sanford
- Stromberg v. California (1931), 283 U. S. 359, by Chief Justice Hughes.
Not one of those citations supports by reason the proposition stated.
The "authorities" of the Court examined
In the Gitlow case, sustaining a conviction by a jury for violation of the
Statute of New York against criminal anarchy, Justice Sanford began (italics
"For the present purposes we may and do assume that freedom of
speech and of the Press — which are protected by the First Amendment
from abridgement by Congress — are among the fundamental personal
rights and 'liberties' protected by the due process clause of the Fourteenth
Amendment from impairment by the States."
An assumption contrary to a demonstrable historic fact cannot stand
as the foundation of a departure from a long-settled reading of a
In the Whitney case, under the Syndicalism Act of California, the main
contention was that the legislation was directed against a class and that
therefore "equal protection" was denied. The Supreme Court of
California was reversed. The opinion contained no attempt to show that free
speech or Press is protected against the State by the Fourteenth Amendment.
The Fiske case, reversed, dealt with due process under the Syndicalism Act
of Kansas, not free Press. There was no showing as to how due process,
protected from the beginning in all the constitutions of the States, had been
converted into a right dependent upon National citizenship to be protected by
the Fourteenth Amendment.
The Stromberg case arose under the criminal statute of California forbidding
the display of the red flag. The judgment of conviction was reversed on the
ground that the law was too vague in its prohibition for a criminal statute.
Thus, not one of the four cases cited by the Chief Justice in support of the
interference by the United States with the Constitution and laws of the
Republic of Minnesota showed how that could be constitutionally done. The
Constitution of Minnesota gives protection to a free Press, and the free Press
guaranteed by the First Amendment against National (not State) interference was
absolutely alien to the case, which the Supreme Court of Minnesota had
correctly disposed of.
Every one of the four cases was a bald invasion of a sovereign State.
Even had each of the three States named denied freedom of speech, of Press,
and of religion, that would not have been violative of the First Amendment,
which says only that "Congress shall make no law," and which is not,
therefore, a command to the States. It was so taken at its plain words by both
Nation and States during the 79 years that the Fourteenth Amendment did not
exist. This Amendment did not purport to make the First applicable to the
States. It was the liberty, the property, and the general rights of the
Negro that were under consideration when the Fourteenth Amendment was written
— not speech, not Press, not religion.
The legislation of Minnesota was sound
The law of Minnesota granting relief by injunction from continuous libels
was sound. It was not at variance with the provision in the Constitution of the
State for the protection of a free Press. The first ground of equity
jurisdiction is that the complainant has no speedy and complete remedy at law.
That is, if he were to recover judgment for damages in an action at law, the
defendant might not be financially able to respond; and if he were financially
able, the injured party would be obliged to bring an action for each libel.
That is the second ground of equity jurisdiction, to prevent a
"multiplicity of suits." The court of equity or chancery simply stops
by its writ of injunction what the legislature properly denounced as a
nuisance. The law does not suppress the periodical — it stops the
In the dissent by Justice Butler and three associates — Justices Van
Devanter, McReynolds, and Sutherland — it was said:
"Confessedly, the Federal Constitution prior to 1868, when the
Fourteenth Amendment was adopted, did not protect the right of free speech or
Press against State action. Up to that time the right was safeguarded solely by
the constitutions and laws of the States and, it may be added, they operated
adequately to protect it."
That being so, why should the National Government attempt to take over after
three quarters of a century?
Chief Justice Marshall on relation of State and Nation
In support of their appeal to history, the dissenting justices cited a case
(7 Pet. 243) decided in 1833 by Chief Justice Marshall, which involved a claim
for damage to property done by the City of Baltimore in improving the harbor.
The claim was made under the Fifth Amendment, which requires "just
compensation" from the Nation for property taken for public use. That case
of 116 years ago may be the first in which the principle under discussion here
came up. The language of the Chief Justice suggests that it was new. He laid
out the whole subject with the clarity and completeness that marked his work
"The question thus presented is, we think, of great importance, but not
of much difficulty.
"The Constitution was ordained and established by the people of the
United States for themselves, for their own government, and not for
the government of the individual States. Each State established a
constitution for itself, and, in that constitution, provided such
limitations and restrictions on the powers of its particular government as its
"The people of the United States formed such a government for the
United States as they supposed best adapted to their situation and best
calculated to promote their interests. The powers they conferred on this
government were to be exercised by itself; and the limitations on
power, if expressed in general terms, are naturally and, we think,
necessarily applicable to the government created by the Instrument. They
are limitations of power granted by the Instrument itself; not of
distinct [State] governments, formed by different persons and for
different purposes. If these propositions be correct, the Fifth Amendment must
be understood as restraining the power of the general government, and not as
applicable to the States."
State not commanded by Bill of Rights
In brief, a disregard by a State of any prohibition in the Bill of Rights,
from the First Amendment down, is not remediable in a proceeding against the
State, for the State is not commanded to obey it.
In the Minnesota case Chief Justice Marshall would rule that the First
Amendment on the freedom of the Press could not be applied against the
Constitution and laws of Minnesota. And he would make like ruling in the
Illinois school case, namely, that the "establishment of religion"
forbidden by the First Amendment was not forbidden to Illinois. And, anyway,
Illinois made no law respecting an establishment.
The dissenting justices cited some other decisions to similar effect, but
there is nothing to be said after Marshall.
In 1936 the decision in the case in Minnesota was cited and followed where a
law of Louisiana imposed an excise tax on the proceeds of advertising in
newspapers "for the privilege of engaging in such business."
Collection of the tax was enjoined by the United District Court. Appellant
contended, correctly, that the Fourteenth Amendment does not prohibit States
from infringing freedom of the Press, citing Cooley to the point that the
Amendment is to prevent hostile legislation by States against the
"privileges and immunities" of citizens of the United States as
distinguished from those of citizens of the States. The Supreme Court held (297
U. S. 333) the act "unconstitutional under the Due Process-of-law Clause
[of the Fourteenth Amendment] because it abridges the freedom of the
Press." There, again, it was assumed that the Fourteenth Amendment brings
down the First against the States.
In 1883 the Supreme Court held (110 U. S. 516,535) that due process in the
Fourteenth Amendment "refers to the law of the land in each State,"
not to the law of the United States. The State does not have to afford due
process under National law — under the Fourteenth Amendment in case of the
Press or of religion.
Cases examined respecting Bill of Rights
Now for "the strange, eventful history."
In 1867, the year before the Fourteenth Amendment became a part of the
Constitution, the Supreme Court of the United States passed on a law of Nevada
levying a tax of $1 on every person leaving the State by railroad or other
vehicle. It was held in an opinion by Justice Miller, the lion of the Judiciary
of that day, that the levy was invalid (6 Wallace, 35) as a restraint by a
State upon a right of National citizenship, the right to go at will
throughout the country, to Washington on business with the Government, to the
land office of the United States, to go abroad, and so on.
The decision followed one by Chief Justice Marshall (12 Wheaton, 419) in
1827, that when the importer paid the duty levied by the United States he
received from the United States a right to sell the imported
packages, for which reason the license law of Maryland on importers was
unconstitutional, a levy on a National right.
In 1872, four years after the Fourteenth Amendment became a part of the
Constitution, the most memorable decision that has been written respecting it
was rendered (6 Wallace, 36) by the Supreme Court of the United States in a
group of cases heard together and known as the Slaughter-House cases. A law of
Louisiana authorizing the centralizing of livestock handling and butchering at
a designated place outside of New Orleans was attacked by a number of butchers
as abridging their "privileges and immunities" under the Fourteenth
Amendment, and as denying the "due process" and "equal
protection" guaranteed by that Amendment. Equal protection was not denied
because the law required that the slaughter-house be open to all butchers.
The two American citizenships made plain
In the opinion of the Court, by Justice Miller, he returned to the
discussion of the dual citizenship which he had considered in the Nevada case,
"It is quite clear, then, that there is a citizenship of the United
States, and a citizenship of a State, which are distinct from each other, and
which depend upon different characteristics or circumstances in the
On the meaning of "the privileges and immunities of citizens of
the several States," Justice Washington was quoted:
"They may all, however, be comprehended under the following general
heads: protection by the [State] government, with the right to acquire and
possess property of every kind, and to pursue and obtain happiness and safety,
subject, nevertheless, to such restrictions as the government may provide for
the general good of the whole."
Up to the time of the three Civil War Amendments (Thirteenth, Fourteenth,
and Fifteenth) no claim or pretense was made that these rights depended upon
the Federal Government for their existence or protection, beyond the very few
express limitations imposed by the original Constitution on the States —
against ex post facto laws, bills of attainder, and laws impairing the
obligation of contracts.
"But with the exception of those and a few other restrictions,"
said the Court, "the entire domain of the privileges and immunities of the
citizens of the States, as above defined, lay within the constitutional and
legislative power of the States, and without that of the Federal
Government" (italics inserted).
Some privileges of National citizenship named
Thus, holding that the privileges and immunities asserted by the plaintiffs
in the cases with respect to slaughtering belong to citizens of the States and
are to be protected, not by National but by State government, Justice Miller
enumerated some privileges and immunities proceeding from National citizenship:
to go from place to place throughout the land, to assert any claim against
government, to share in its offices and affairs, to free access to seaports, to
the land offices and courts of justice, to demand care and protection on the
high seas and abroad, to have the privilege of the writ of habeas corpus, the
right to use navigable waters, to have the benefit of treaties and of the War
The holding was that the rights and privileges claimed by plaintiffs were
not those of citizens of the United States within the Fourteenth
The theory which the Court rejected
A dissent was written by Justice Field and joined in by Chief Justice Chase,
and Justices Swayne and Bradley, chiefly on the ground that an unlawful
monopoly had been granted. The dissenters sought to bring within National
cognizance every right of man — whereas the majority opinion by Miller was
that the right to slaughter or to pursue any other occupation existed before
the Fourteenth Amendment, and therefore did not spring from it — a right
under State, not National, citizenship.
It was the belief of some that the writers of the Fourteenth Amendment
intended to enfeeble all the States for what the Confederate States had done.
But the opinion just reviewed came from master minds in statesmanship as well
as in law. They knew that it would be
fatal to liberty to take from the supreme court of a State the final word
respecting rights emanating from or existing under State citizenship. What that
would mean — what they divined — we have seen in the Minnesota Press
case and in the Illinois School case.
The very next case (16 Wallace, 130) was decided by Justice Miller and it
was held that Mrs. Myra Bradwell, who had been denied a license to practice law
in Illinois, had not been deprived of a right of National citizenship:
"The right to control and regulate the granting of a license to
practice law in the courts of a State is one of those powers which are not
transferred for its protection to the Federal Government and its exercise is in
no manner governed or controlled by citizenship in the United States in the
party seeking such license."
Chief Justice Chase dissented.
Next great case of applicability of amendments
In 1908 the case next to the Slaughter-House cases in importance in
distinguishing between State citizenship and National citizenship was decided
(211 U. S. 78), Justice Moody writing the opinion. Twining was on trial in New
Jersey on a criminal charge. By the practice in that State comment was
permitted before the jury on the fact that a defendant did not take the witness
stand to clear up the accusations. He claimed that the Fifth Amendment,
forbidding that a person "be compelled in any criminal case to be a
witness against himself," was violated by New Jersey, as his right to be
silent had been turned against him. It was held that the Amendment is not
applicable to State citizenship — that the first eight
amendments affect the United States
Government only. For 79 years before the Fourteenth Amendment immunity from
self-incrimination was afforded by the constitution of the State, if it was
enjoyed at all in State tribunals.
Counsel for Twining made frequent reference to "fundamental
rights," but he drew no distinction between fundamental rights of State
citizenship and rights fundamental to National citizenship.
Marshall on power of people in States
The decision in the Twining case was in conformity with what Chief Justice
Marshall had explained (4 Wheaton, 122) 89 years before:
"When the American people created the National Legislature, with
certain enumerated powers, it was neither necessary nor proper to define the
powers retained by the States. These powers proceed, not from the people of
America, but from the people of the several States; and remain, after the
adoption of the Constitution, where they were before, except so far as they may
be abridged by the Instrument."
That goes to what has been before mentioned, that there is a National
Republic and a State Republic, each operating "on its own." The State
Republics existed before the National Republic — they created it, not to
manage their affairs, but to do certain duties which they carefully assigned to
it; later, in fear, more clearly circumscribing its activities by a Bill of
Supreme Court avoided applying First Amendment
In 1906, the year before the Twining case, the Supreme Court passed by the
question, in a Denver newspaper case (205 U. S. 454), whether in the Fourteenth
Amendment is to be found "prohibition similar to that in the
First." It had left the question
open in 1902 (187 U. S. 71), Justice Harlan dissenting in both cases.
But in 1937 a law of Georgia against insurrection, or inducing others to
join in resistance to government, was held (301 U. S. 242) repugnant to the
Fourteenth Amendment in an opinion by Justice Roberts, who assumed that
the Amendment let the United States into the Republic of Georgia for managerial
purposes. Justices Van Devanter, McReynolds, Sutherland, and Butler dissented.
Supreme Court followed Slaughter-House cases
In the same year (1937) it was stated (302 U. S. 319) in a case of murder
done in Connecticut that "there is no such general rule" that
"whatever would be a violation of the original Bill of Bights (Amendments
I to VIII) if done by the Federal Government is now equally unlawful, by force
of the Fourteenth Amendment, if done by the State." Justice Cardozo said
that "the conviction of appellant was not in derogation of any privileges
or immunities that belong to him as a citizen of the United States."
Citizenship of the United States could not have been involved unless
Connecticut had denied to him the "due process" of its laws or
the "equal protection" of its laws. If it thus disfavored him
by denying the practice due and given to others under its system, then the
"no-State-shall-make-or-enforce-any-law" of the Fourteenth Amendment
would be in control. As a citizen of the United States he was guaranteed the
due process and equal protection of the law of his State. If it did not
appear at the opening of the record in the Supreme Court that he charged denial
of the law and procedure available to all others in his State, there was no
"Federal question," and the appeal should have been dismissed,
leaving the case where Connecticut closed it.
Where the Fourteenth Amendment was applicable
In 1940 the Supreme Court reversed (310 U. S. 573) the United States
District Court and the Circuit Court of Appeals, which had held that the method
established by Texas for regulating the production of oil made the owners of
large areas diminish pumping while small adjoining owners drained the large
holdings. That presented a proper question of the denial of "equal
protection" by a State to a citizen of the United States, which the
Fourteenth Amendment forbids as to the white man as well as the black.
In 1947 the Twining case was followed and it was held that the law and
practice of California permitting comment before a jury upon the fact that the
defendant in a criminal case did not take the witness stand to explain
accusations denied no constitutional right. The opinion, by Justice Reed, said
(332 U. S. 46) that "the Due Process Clause of the Fourteenth Amendment,
however, does not draw all the rights in the Federal Bill of Rights under its
protection." Justices Black, Douglas, Murphy, and Rutledge dissented,
showing the radical difference of opinion on this point.
The question that embarrasses the Justices
If the Fourteenth Amendment "does not draw all the rights," which
ones does it draw? And if it draws any at all, why and how? That is what
troubled Justice Frankfurter, who wrote a concurring opinion and said that
if the Fourteenth Amendment makes the Fifth operative against the
States, then it must so effectuate all the others of the Bill of Rights. To be
sure, that is the only logical conclusion.
An authority on constitutional construction
Thus, for 150 years the States — and for most of the time the Nation
— had in their daily lives construed the first ten amendments to the
Constitution, the Bill of Rights, as having no application to local
governments. The States have established legal and procedural systems
strikingly at variance with the requirements of the amendments. In striving for
the meaning of a constitutional provision or a law, a court always inquires:
How was it construed from the beginning by those whose duty it was to apply it
By that rule the First Amendment, respecting religion, press, and speech, is
in no way binding on any State. It was misapplied in the Minnesota Press case
and in the Illinois School case.
Due process of law is enjoined by the Fifth Amendment on the Nation and by
the Fourteenth on the States. That is, there is due process of law in each of
the Republics, each enforcing its process.
"Due process of law," wrote Chief Justice Chase (92 U. S. 90) in
1875, "is process according to the law of the land. This process in the
States is regulated by the law of the States." It was there held that
"trial by jury [Seventh Amendment] in suits at common law pending in the
State courts is not, therefore, a privilege or immunity of National citizenship
which the State is forbidden by the Fourteenth Amendment to abridge."
Due process of law made clear
Justice Moody explained in the Twining case the meaning of due process:
"These principles grow out of the proposition universally accepted by
American courts on the authority of Coke, that the words 'due process of law'
are equivalent in meaning to the words 'law of the land,' contained in that
chapter of Magna Carta which provides that 'no person shall be taken, or
imprisoned, or disseized, or outlawed, or exiled, or in any wise destroyed; nor
shall we go upon him, nor send upon him, but by the lawful judgment of his
peers or by the law of the land.'"
A denial of any of those rights guaranteed by King John at Runnymede is a
denial of due process, a denial of the law of the land.
Another explanation of Due process of Law
A better definition of due process for the nonlegal scholar may be built
upon an expression by Justice Brandeis in a dissenting opinion in which he said
substantially that fully as important as the constitutional or statutory
provision for protecting the right of man is "procedural regularity"
in the adjudication of his claim.
Thus, an accused must have (1) inquiry of the charge by a Grand Jury in a
Federal case. If a true bill be returned he must have (2) a copy of the
indictment with a list of the witnesses who testified respecting him. He must
have (3) adequate time to prepare his defense. He must have (4) the assistance
of counsel, and if he cannot employ counsel the Government must appoint a
competent attorney to defend him. He must have (5) a trial in public before (6)
a petit jury of twelve, fairly drawn, deciding for or against him unanimously.
He must be (7) confronted by the witnesses against him. Should he be convicted,
he must have (8) appeal to a court of review, if he desire it.
States require due process of law
In civil proceedings in the courts of States involving money or realty or
estates in probate or damages, there is like "procedural regularity"
provided. A denial of any element of this procedure is a denial of the due
process of law enjoined upon the Nation by the Fifth Amendment and upon the
States by the Fourteenth.
Many cases appear in the judicial reports in which some factor in this
process due to the defendant or the litigant was denied, and in each the
appellate court reversed the judgment and remanded the case to the trial court
to proceed again, and correctly.
Those are some of the safeguards to "life, liberty and property"
set up by the profound historians in the Constitutional Convention, who knew so
well what has been insufficiently taught to us, that, in the words of William
Ellery Channing, "the state is too often the grave of the man."
Justice Field said in 1885 (113 U. S. 27) of the Fourteenth Amendment, of
late being misapplied against the States:
"But neither the Amendment — broad and comprehensive as it is
— nor any other amendment, was designed to interfere with the power of the
State, sometimes termed its police power, to prescribe regulations to promote
the health, peace, morals, education, and good order of the people."
In that case a municipal ordinance regulating the operation of laundries at
night was upheld. The case is an example of the unimportant litigation which
has been taking the attention of the Supreme Court in recent years, and about
which Justice Miller wrote (96 U. S. 97) in 1877 (brackets inserted):
Justice Miller on misuse of due process clause
"It is not a little remarkable that while this provision [due process,
Fifth Amendment] has been in the Constitution of the United States, as a
restraint upon the authority of the Federal Government, for nearly a century,
and while, during all that time, the manner in which the power of the
Government has been exercised has been watched with jealousy, and subjected to
the most rigid criticism in all its branches, this special limitation on its
powers has rarely been invoked in the judicial forum or in the enlarged theater
of public discussion.
"But while it has been a part of the Constitution [in Fourteenth
Amendment], as a restraint upon the power of the States, only a very few 
years, the docket of this Court is crowded with cases in which we are asked to
hold that the State courts and the State legislatures have deprived their
own citizens of life, liberty or property without due process of law.
"There is here abundant evidence that there exists some strange
misconception of the scope of this provision as found in the Fourteenth
In that case an assessment for the drainage of swamp lands in Louisiana was
under attack. Unless the complainant was denied the procedure under the law of
Louisiana which was given to everybody else, he had been deprived of no right
under the Fourteenth Amendment.
What would that constitutionalist think could he know of the decisions in
recent years exhibiting a "strange misconception of the scope of this
provision as found in the Fourteenth Amendment?"
A review of some leading cases
In 1884 the Supreme Court held (110 U. S. 516) that California did not
violate the Fifth Amendment, requiring indictment by a grand jury, by employing
instead the "information" of the prosecuting attorney. Certainly not.
The requirement was written against the United States Government only.
In 1897 a man spoke on Boston Common without a permit, for which he was
apprehended. It was held (167 U. S. 43) that the regulation was not in conflict
with any constitutional provision respecting National citizenship.
That decision should have been stare decicis, the controlling
precedent, for a large number of late cases over turning local regulations of
States or their municipalities for cleanliness and order.
In 1900 it was held (176 U. S. 581) that Utah, in setting up a jury of 8 in
criminal cases, was not bound by the Sixth Amendment requiring the United
States to have a jury of 12 deciding unanimously. To be sure, not one of the
ten amendments touches the States.
A State law tending to disorder
In 1921 the Supreme Court held (257 U. S. 312) that a law of Arizona
exempting strikers from civil or criminal liability while all others remained
liable for breaches of duty (torts) denied the "equal protection of the
laws" of the State which the Fourteenth Amendment forbids. Of course, the
Fourteenth Amendment was written against the States, while the First to Tenth,
inclusive, were to protect the States from the National Government, which is
now busy taking over, notwithstanding. Judicial "liberalism" appeared
here. Justices Holmes, Pitney, and Brandeis dissented in the belief that the
State could leave persons injured by strikers to remedy in actions at law for
The doctors of law in disagreement
In 1939 an ordinance of Jersey City forbidding the leasing of a hall without
permit for a meeting to advocate the obstruction of government was held (307 U.
S. 496) in an opinion by Justice Roberts to violate the free speech provision
of the First Amendment. A permit was denied to an organization of Communists.
The United States District Court had enjoined the City from enforcing the
ordinance, the Circuit Court of Appeals affirmed that, and the Supreme Court
gave final affirmation, all three National courts applying to the Republic of
New Jersey the Freedom-of-Speech Clause of the First Amendment, written against
the Nation only. Justice McReynolds dissented on the ground that the plaintiffs
should have sought relief in the courts of New Jersey, which alone had
jurisdiction. Justice Butler also dissented, saying that the Boston Commons
case, previously mentioned, should have been the guide.
Great States toppled in groups
In the same year again Justice Roberts wrote the opinion (308 U. S. 147)
which overturned the courts of last resort in the sovereign States of
California, Wisconsin, Massachusetts, and New Jersey upholding municipal
ordinances forbidding the distribution of handbills in the streets. The Supreme
Judicial Court of Massachusetts pointed out the fundamental fact that there was
no interference with speech or publication anywhere in the city except in the
streets. There is probably not a municipality in the United States, down to the
smallest, that has not some such police ordinance, which is for good order
— and constitutional.
In 1940 the Supreme Court of Connecticut was reversed (310 U. S. 296) for
sustaining an ordinance requiring a permit for authority to solicit for a
religious or other cause, Justice Roberts writing the opinion.
A large number of the cases overturning municipal ordinances prohibiting
uses of the streets for different purposes were instituted by Jehovah's
Witnesses under the claim that the religious freedom and the free speech
protected by the First Amendment had been denied. They spoke in the streets and
used sounding instruments to give recorded addresses, and they disturbed
residents by knocking on the doors and urging the purchase of books and
pamphlets. They were not forbidden to hire a hall and carry on there, or to go
to some open place. But if they had been prevented by State or municipal law
from activity anywhere, that would not have violated the First Amendment, a
restriction on National action only.
From 1937 down, there have been more than thirty cases of the kind reviewed
before the Supreme Court of the United States. They belonged for final decision
in the tribunals of the States. It would be iteration and reiteration to go
over any more of them.
Delinquency of American lawyer
The American Bar — local, State, and National — stood tongue-tied
during the years that a quartet of great Justices — Van Devanter,
McReynolds, Sutherland, and Butler — resisted steadily and brilliantly the
pressure of swelling centralism against our system of widely divided powers.
Although the hour is very late, the organized Bar of each State should make
ready to admonish the senators from its State to refuse to confirm any
appointment by the President to any Federal Court — the Supreme Court, the
eleven Circuit Courts of Appeals, and the hundred and a half District (trial)
Courts — if the appointee is not a seasoned jurist of repute or an
attorney who has won distinction as a practitioner in the field of
constitutional law. Constitutional scholars, not sociologists or politicians,
must make up those courts.
Highly experienced judicial material abundant
The courts of last resort in the forty-eight States, and the appellate
courts below those, offer an abundance of highly competent jurists for
appointment to the Federal courts. They are entitled to recognition by
promotion. The Judiciary of States and of Nation would be strengthened by that
By remaining dumb and inactive for a decade and a half or more while
judicial appointments have gone to low politics and inexperience, the American
lawyer has discredited himself.
The Press, because the schools failed the writers, was of little use, where
it was not a contributor to the confusion.
Long ago a European writer on our system declared the Judiciary to be the
keystone of the American arch. The writers of The Federalist said that
it is the least able of the three Departments to defend itself, and that it
would be in peril from the other two. The Executive Department has not made the
best appointments, and the Legislative Department has sanctioned such
A thorough-going reform as to appointments and confirmations is imperative.
In 1949 the Court contained 8 Democrats and 1 Republican, the last mentioned
having been a colleague in the Senate of Mr. Truman, who appointed him.
Of the 192 appointees to all Federal courts by Presidents Roosevelt and
Truman, 184 are Democrats and 8 are Republicans. Not one of these appointees,
from top to bottom, had gained any measurable experience as a jurist on any of
the State supreme courts, or had achieved distinction at the Bar as a
Will a packed court "deliver"?
On June 23, 1947, the Supreme Court of the United States, in a suit brought
by the Attorney General against the State of California, held (332 U. S. 19)
that "California is not the owner . . . and that the Federal Government,
rather than the State, has paramount rights in and power over that belt, an
incident to which is full dominion over the resources of the soil under that
water area, including oil."
The "belt" is a three-mile strip of land lying under water seaward
from low-water mark and called tideland. The belt of water is the boundary line
between a nation and the open sea. Vessels of foreign countries entering those
waters become affected by the maritime laws of the country. But the land under
the waters is the property of the State.
Three decisions of the Supreme Court had held this.
California had been giving leases on this tideland to drillers for petroleum
under an act of its Legislature of 1921. Many valuable wells have been found
under the deep water. Similar valuable production of petroleum has been carried
on along the Gulf Coast within the three-mile limit.
On October 27, 1947, Chief Justice Vinson entered a decree giving effect to
the decision of the Court by Justice Black, declaring that the United States is
now and has been "possessed of paramount rights and powers over the lands,
minerals and other things underlying the Pacific Ocean lying seaward of the
ordinary low-water mark on the coast of California, and outside of inland
waters, extending seaward three nautical miles. The United States is
entitled to injunctive relief" (italics inserted).
What the United States went after
The petition of the Government (original in the Supreme Court) asked for a
decree of ownership and for a writ enjoining the State and persons from
continuing the trespass complained of.
Neither the decision of the Court nor the decree deals with title to
the land. Each is with respect to "paramount rights" of the United
States, implying inferior rights in the State, but without any discussion as to
how either got its rights or precisely what those rights are. In a dissenting
opinion Justice Frankfurter asked how the United States got its
"rights" — by conquest, or how.
In the ordinary lawsuit a claimant of land must exhibit a deed, or a lease
showing a right to occupy, or a will transmitting, or a line of inheritance, or
prescription by adverse possession. Otherwise, his suit will be dismissed.
Baseless claim of U.S.A. to "right"
Here the United States appeared with empty hands with respect to documentary
evidence of title. And it appeared with unclean hands, which is ground for
dismissal in a court of equity. For California had held possession of the land
for 100 years, since its admission under the Constitution of 1849 laying claim
to the tidelands. Thus California had documentary evidence of its title. But
without the provision in its Constitution accepted by the Congress which
admitted it to the Union, its adverse possession for that time would have
ripened into title. And, by that token, the United States would be denied
relief for laches, long sleeping on its "rights."
The decision ambiguous and far-fetched
Not only was the defense of California brushed aside as of no effect, but
the United States made no motion, as before said, to show how it got
title (not "paramount rights"), which Justice Frankfurter
urged as necessary. The decision was cluttered with citations of what Justice
Frankfurter called "the tenuous writings of publicists," to the
disregard of judicial decisions on the subject and the constitutional
provisions governing. Referring to a decision (262 U. S. 100) respecting rum
running at sea during the term of the Eighteenth Amendment, the opinion said:
"That the political agencies of this Nation both claim and exercise
broad dominion and control over our three-mile marginal belt is now a settled
Freedom of seas not muniment of title
But that had no bearing on the title to lands under the tidewaters. The
opinion lugged in also "the freedom of the seas"; but as the
decisions on the subject point out, the ownership of the land by the State is
subject to navigation. There is no record that the ownership of tidelands by
States ever interfered with the operations of the United States in peace or
war. Even if there were interference, the United States would have to
acquire title, not seize possession.
In a decision of the Court written by Chief Justice Taney in 1842 the law
was stated (16 Peters 367) as follows, and it has remained unchanged (italics
"When the Revolution took place the people of each State became
themselves sovereign; and in that character hold the absolute right to all
their navigable waters and the soils under them for their own common
Law respecting tidelands long undisputed
In 1873 the Supreme Court, Justice Field writing (18 Wallace 57), followed
the decision of Taney in stating the rights of California itself (italics
"Upon the admission of California into the Union upon equal footing
with the original States, absolute property in, and dominion and
sovereignty over, all soils under the tide-waters within her limits
passed to the State," subject only to navigation.
The cases cited here, and others urged by California, were not overruled.
They are still the law. Justice Black gave much attention to a case decided
(3 Howard 212) in 1845 respecting tidelands in Mobile Bay and said that the
principle applying to "inland waters" could not be extended seaward.
The decree entered by the Chief Justice against California was made to deal
with lands "outside of inland waters," which seems to show the only
reason that the Court could find for not following the decisions by Taney and
Field just before presented. However, the subject matter is tidelands, not
waters inside or outside. Whether inside or outside, the land belongs to the
State when the tide of the ocean covers it.
International law rewritten by the Court
Justice Black and those concurring were in what is known in the American
vernacular as "a hard row of stumps." They left unexplained where the
Court got authority to rewrite international law — defined in the
administration of George Washington between England and the United States
— by drawing a distinction between tidelands in the open and tidelands in
an arm of the ocean.
As international law has been a build-up under practices by the executive
departments of governments, and by treaties covering points agreed to, the
making of it necessarily lies beyond the jurisdiction of courts.
Constitutional limitations also by-passed
The wise men at Philadelphia wrote into the Constitution their objections to
the ownership of lands in a State by the United States except in instances
specified. In next to the last paragraph of section 8 of Article I, carefully
specifying and limiting the powers to Congress, the Legislative Department is
given the right "to exercise like authority [as over the District of
Columbia] over all Places purchased by the Consent of the Legislature of the
State in which the Same shall be, for the Erection of Forts, Magazines,
Arsenals, dock-Yards, and other useful Buildings."
It was undoubtedly with reference to that language that the Supreme Court
said (3 Howard 212) in 1845 (italics inserted):
"The United States has no constitutional capacity to exercise
jurisdiction, sovereignty, or eminent domain within the limits of a
State or elsewhere, except in the cases in which it is expressly
Tenth Amendment supported title of California
Following that forceful implication in the first article of the
Constitution, that territory even for the governmental purposes of the Nation
can be acquired in a State only by its consent, the Tenth Amendment, the last
article in the Bill of Rights, added this buttress against National
"The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States [as are powers of coinage, treaties, war], are
reserved to the States respectively or to the people."
In the States is a vast reservoir of powers not surrendered, and the
Sovereignty is withholding many more.
The official report of the decision in the case against California does not
show that the Court was asked to explain how the National Government could
vault those obstructions to its getting title — or even "paramount
rights" — in a State. The first question that should have been
elucidated — Where did the United States get any "rights," and
how, to tidelands in California? — remains a deep mystery.
What "precipitated" this conflict of Republics?
In the opinion of the Court it is said that by giving leases to these lands,
California "precipitated this extremely important controversy."
"Precipitate" imports sudden action. But the law of California
authorizing the leasing was passed in 1921, a quarter of a century before the
United States awoke to the invasion of its "paramount rights." The
conflict between the States — for interior as well as maritime States
intervened in support of California and the Constitution — and the Nation
was "precipitated" in 1936 by the introduction of a bill by a senator
destitute of any conception of the constitutional position of the States in the
Near mania of Congressmen to break States
As often pointed out herein, members of Congress have long seemed to be
possessed of a near mania to break down their States. To be sure, the schools
and universities gave them no constitutional education, and to a degree they
are to be pitied rather than blamed.
The bill of the unschooled senator declared the tide-lands to be part of the
public domain of the United States. Title by ipse dixit! It was
remodeled into a joint resolution directing the Attorney General to assert and
establish the title of the United States to tidelands and petroleum deposits.
The resolution passed the Senate by unanimous consent, but the House took no
action. The Secretary of the Navy, whose Department got a sniff of petroleum
during the dispute about the Teapot Dome in the Harding and Coolidge
administrations, filed a brief in the Senate in support of the movement. While
a number of maneuvers immaterial here were in progress, this suit was brought,
and the attorneys general of 46 States filed a brief in opposition to it. That
was an amazing awakening of the States from protracted slumber.
Two Presidents encouraged the illegal scheme
A Joint resolution of Congress of July, 1946, quieting title in the States
was vetoed by President Truman, who, as a recent senator, had been favorable to
the action against the States.
The Secretary of the Interior testified before a congressional committee
that in a talk with President Roosevelt in April, 1937, the Chief Executive
raised the question of the ownership of oil in the tidelands. That was shortly
after the senator had "precipitated" the controversy. He authorized
the litigation. After his death in April, 1945, President Truman did likewise.
Thus, the whole administration, the Executive Department, the Legislative
Department, the Navy, and the Judicial Department, all concurred in this
attempt upon the property of the States.
The worst imaginable can happen here
The facts related show the origin and development of a plot by one Republic
to seize illegally the lands of other Republics, such as might have been
hatched in Moscow against Poland. Administrations calling themselves the
"New Deal" and the "Fair Deal" did that!
Quite a change in the American governmental mind has taken place since
England attempted to "move over" and occupy some gold-bearing lands
in Venezuela and was stopped by the Cleveland administration.
What has been shown is a demonstration that anything may happen here.
But, of a certainty, it is within the power of the States in Congress to
override this startling decision and clear their lands of the cloud which it
put upon title to them.
Interpretative amendments to the Constitution suggested
Chisholm sued the State of Georgia and recovered a judgment which the
Supreme Court sustained (2 Dallas, 419) in 1793. As it is against ancient
principle for sovereignty to be sued without its consent (as the United States
consents to be sued in specified instances in its Court of Claims), a great
commotion followed the decision, and in the next year what became the Eleventh
Amendment was proposed to the States for ratification. It provided, briefly,
that "the Judicial power shall not be construed to extend to any suit in
law or equity" against a State.
Again, in 1933, what became the Twenty-first Amendment, repealing the
Eighteenth (Prohibitory) Amendment, was proposed and it was adopted in the
short space of nine months and fifteen days. After 13 years and .10 months of
trial and controversy, the Prohibitory Amendment went out and carried with it
the coercive legislation and some fantastic judicial decisions which it had
engendered. In one case it was held that a man on an interstate journey by
railroad with a flask of liquor in his valise was "transporting"
intoxicating drink in "interstate commerce" in violation of
In like manner, curative amendments should be proposed to the States
revoking all the acts of Congress and the judicial decisions applying the
Taxing Clause, the Commerce Clause, and the General Welfare Clause of the
Constitution where they were not intended to be operative. It may be asked, for
example: How can the National Labor Relations Act and all that has been done
under it be unscrambled? The answer is that the States can resume the police
power which they abandoned, but of which they could not divest themselves
constitutionally, over their labor conditions and over all the needs of the
people. Already that sentiment has found expression in many States.
In December, 1949, the State of Michigan had formally "seceded"
from the District of Columbia. Its legislature had enacted a law forbidding
strikes until a vote of the workers has been taken in accordance with
specifications laid down. In the month named, the Department of Justice went
into the Supreme Court of the United States to ask that the law of Michigan be
restrained from operation, as the National Government had "preempted"
that field, having reference to the unconstitutional National Labor Relations
Act of Congress. But it has been shown from the Constitution and other
authorities that the United States cannot take over a field inherently in the
States and not susceptible of surrender by them.
The battle of the States for taking back their Union is opening up. They can
win it easily. The whole power respecting the subject resides in them.
The interpretative amendment or amendments might declare that the grant of
power to Congress by section 8 of Article I "to lay and collect . . .
Taxes to pay the Debts and provide for the common Defence and general Welfare
of the United States" shall be strictly construed as limiting expenditures
for the Nation, at home and abroad, as a member of the family of nations, and
shall not be taken to authorize the Government to engage in the manufacture of
electric power, or to provide rural electrification, or to engage in any kind
of industry or trade, or to provide aid to any class of individuals, who are
protected by the inherent police power of the States.
Two clauses most wrongfully used
Second, the Commerce Clause shall be strictly construed to mean
regulation of interstate (not intrastate) commerce as commerce was
understood in the Constitutional Convention and as the word was applied by the
courts and the Interstate Commerce Commission down to the 1930s; and it shall
not be held to give jurisdiction to Congress of workers throughout the country
except those engaged in commerce across State lines and with foreign countries;
and it shall not be construed to authorize the engaging in commerce of any kind
by Government by any means, direct or indirect.
Third, the General Welfare Clause shall be strictly construed to mean the
welfare of the United States as a political entity, and as specified in the
grant of powers in section 8 of Article I; and it shall not be taken to mean
the welfare of persons as to health, safety, morals, education, and general
well-being, matters of which the States have inherent jurisdiction by virtue of
their police power, no part of which they surrendered to the Nation when they
drew the Constitution. They adopted the Bill of Rights in further protection of
Those suggestions are merely outlines of what should be developed in
thorough detail in Congress for amendments to restore the Union to the States
1. The cases presented no Federal question and were
dismissed. A Federal question, essential to the jurisdiction of the Supreme
Court, is, briefly, one arising under the Constitution, under an act of
Congress, under a treaty, or under an action by a State against a right
accruing from National citizenship.
2. On the importance to the American people and the
Republic of the able jurist, Senator Hoar wrote in his memoirs (vol. 2, p. 391)
of the illustrious Chief Justice Shaw of the Supreme Judicial Court of
"He possessed, beyond any other American judge, save Marshall, what may
be termed the statesmanship of jurisprudence. He never undertook to make law
upon the Bench, but he perceived with a farsighted vision what rule of law was
likely to operate beneficially or hurtfully to the Republic. He was watchful to
lay down no doctrine which would not stand this test. His great judgments stand
among our great securities, like the provisions of the Bill of Bights."
3. The Bill of Rights is usually spoken of as the first ten
amendments, but sometimes as the first eight. The Ninth and Tenth are the final
warnings to Congress to keep within its boundaries, whereas the first eight are
protective to men. But men could not be fully guarded without the Ninth and
4. However, in the case of contempt against the Denver
newspaper Justice Holmes said that it raised "questions of local law,
which are not open to re-examination here." No Federal question was raised
and therefore an order of dismissal was entered.
5. When Franklin D. Roosevelt became President, the Supreme
Court of the United States numbered 5 Republicans and 4 Democrats. The policy
had been to have each party fairly represented, although the subject is not
political. Yet, when Congress turned over the general management of the country
to the President, and his "policy" was Socialism, how could the
American expect to secure in courts under such appointment the rights of free
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