The power of the Supreme Court has long been a sore point to critics who dislike the idea of lifetime-appointed judges with a supreme power to overturn the laws produced by Congress.
Writing for the Post in 1916, Reuben Melville Wanamaker argued that the Court was defying the will of the people, as reflected in the work of their representatives. Melville, a judge on the Ohio Supreme Court, was particularly outraged by the federal court’s broad interpretations of the 14th amendment. The 14th Amendment may not be as familiar to Americans as the 1st and 2nd, but it has continued to make a significant impact on Americans’ lives.
Originally, Congress passed the 14th amendment to guarantee the civil rights of black Americans recently freed from slavery after the Civil War. Wanamaker felt the amendment had been little help to black Americans, and that the Supreme Court had used the amendment to protect the interests of corporations. Wanamaker was particularly angered by the Supreme Court’s opinion that corporations had constitutional rights as people did and were entitled to equal protection under the law guaranteed by the 14th Amendment.
In the 1886 case Santa Clara v. Southern Pacific, the Supreme Court’s chief justice stipulated that the equal protection rights guaranteed by the 14th Amendment applied to corporations as well as people. Today, any act of Congress, unless otherwise stated, equally applies to corporations, associations, firms, and other legal entities as it does to individuals.
So when Mitt Romney said, “Corporations are people, my friend,” in 2011, he was only stating a legal fact.
Recent court decisions have taken the principle of corporate personhood even further. In Citizens United v. FEC (2010), the Court ruled that corporations have the same rights as people to spend money to influence the outcome of elections. And the Court’s 2014 ruling in Burwell v. Hobby Lobby acknowledged that a business may hold a religious belief that can exempt it from federal laws.
Having been with us for well over 100 years, the corporations-as-people conundrum will not soon fade away. Nor will the arguments, made by Wanamaker and others, that the Supreme Court exerts too much influence on the shape of the government.
But in his article, Wanamaker proposes a check on the Court’s ability to overturn the work of the legislature. Congress, he claimed, could require the Court to meet a higher standard of concurrence before ruling a law unconstitutional. Instead of acting on simply a one-vote majority decision, the Court would need to obtain a three-fourths vote.
We, the People, or We, the Judges?
By R.M. Wanamaker, Judge of the Supreme Court of Ohio
Originally published on June 10, 1916 (excerpted)
Some years ago the New York City Library published an official statement as to the number of state and Federal statutes that had been nullified by the supreme courts of the states and nation, covering the period from 1902 to 1908 inclusive. That report showed four hundred statutes, passed mostly in exercise of the police power, which had been nullified by the courts on the ground that they were contrary to the provisions of some state or Federal Constitution.
Professor Collins, in his most excellent work on The Fourteenth Amendment and the States, by a carefully prepared chart shows that there have been fifty-five cases decided adversely to state statutes by the Supreme Court of the United States under the Fourteenth Amendment alone up to 1910; and that over eighty percent of them were during the last fifteen years of that period. Assuming that each decision affected only ten of the forty-eight states, it would show a slaughtering of over five hundred statutes as being in conflict with the Fourteenth Amendment alone — to say nothing about other statutes found in conflict with other provisions of the Federal Constitution.
In this same excellent work another chart shows that the Fourteenth Amendment has been invoked before the Supreme Court of the United States in over six hundred cases, in which the Supreme Court assumed jurisdiction and rendered opinions. In three hundred and twelve of these cases corporations were parties complaining of the statute; two hundred and sixty-four were individuals who were, in the main, only nominal parties, some corporation being the real party in interest; and there were only twenty-eight cases in which the negro race itself was affected, though the latter was the prime and paramount consideration for the adoption of the Fourteenth Amendment. Surprising, isn’t it?
What has caused this large increase in the slaughtering of statutes in our courts? The answer may be found in the surprising and expansive interpretation of the Fourteenth Amendment by the Federal Supreme Court, as will speedily appear.
This amendment, as every student of history knows, was intended as the great Magna Charta for the negro race, which had been but five years previously emancipated by the immortal Lincoln.
The chief part of that amendment — Section 1 — reads as follows:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
That the amendment failed as the great Magna Charta of the black race is a matter of common knowledge; that its surprising interpretation by the Supreme Court of the United States has enabled this amendment to destroy the great Magna Charta for both negro and white races, and substitute therefore a City of Refuge for the corporations of the several states, does not admit of doubt on an examination of the official record.
The first cases in the United States Supreme Court calling for a construction of this amendment were decided in 1873, and … known as the Slaughterhouse Cases.
Justice Miller, who delivered the opinion in these cases for the court, said, among other things:
FIRST. This court is thus called upon for the first time to give construction of these amendments.
SECOND. An examination of the history of the causes which led to the adoption of those amendments, and of the amendments themselves, demonstrates that the main purpose of all three last amendments was the freedom of the African race, the security and perpetuation of that freedom, and their protection from the oppressions of the white men who had formerly held them in slavery.
THIRD. In giving construction to any of those articles it is necessary to keep this main purpose steadily in view, though the letter and spirit of those articles must apply to all cases coming within their purview, whether the party concerned be of African descent or not.
FOURTH. We doubt very much whether any action of a state not direct by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency that a strong case would be necessary for its application to any other.
The last language quoted from Justice Miller’s opinion shows that, though he was a good interpreter of the Fourteenth Amendment, as to what its primary purpose was, yet, indeed, he was a bad prophet; for just thirteen years later this same Supreme Court, in Santa Clara versus the Southern Pacific Railroad, 118 U.S., 394, decided in 1886, held, by the syllabus of that case, as follows:
“The provision of the Fourteenth Amendment to the Constitution of the United States, which forbids a state to deny to any ‘person’ within its jurisdiction the equal protection of the law, applies to corporations.”
The only reference in the opinion of this radical reversal of the doctrine laid down by Justice Miller in the Slaughterhouse Cases appears in the following language, which is self-explanatory:
“Announcement by Mr. Chief Justice Waite:
The court does not wish to hear argument on the question whether the provision of the Fourteenth Amendment to the Constitution, which forbids a state to deny to any ‘person’ within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”
The corporations referred to in this announcement were the Southern Pacific Railroad and the Central Pacific Railroad.
Are Corporations Persons?
By what legal legerdemain or judicial inspiration this Fourteenth Amendment was amended by the Supreme Court of the United States, the court does not tell us. It seems content with a Thus saith the court!
The Fourteenth Amendment is composed of five sections, and the word person appears in the first three. The language of the amendment itself, reinforced by the debates thereon, the paramount purpose of the amendment, unmistakably, and without the shadow of a doubt demonstrates that in using the word person the framers and adopters intended it to mean a human being and nothing else. Judge-made law is bad enough, but judge-made constitutions are infinitely worse.
No wonder the Supreme Court of the United States denied to counsel all opportunity to argue the question as to whether or not the word person included a corporation! This interpretation was in defiance of the Congress that framed the amendment; in defiance of the negro race, to protect which the amendment was passed; in defiance of the general public understanding and interpretation of the amendment; in defiance of the Supreme Court’s own construction of it in the Slaughterhouse Cases. And, had such an interpretation been anticipated by the states when they came to adopt it, I challenge a denial of the fact that not half a dozen states of the Union, North or South, would ever have ratified that amendment.
The natural and necessary effect of this interpretation of the Fourteenth Amendment made the Supreme Court of the United States the supreme guardian and final supervisor not only of Federal statutes but of all state statutes, and even of municipal ordinances. The Supreme Court of the United States had passed from a court of law and equity, as those words are understood in the world’s jurisprudence, and had now become a political court — I do not mean a partisan one — a court that spoke the last word as to municipal, state and national public policies.
During the first century of our Government the Supreme Court of the United States confined its doctrine of nullifying legislative acts chiefly and sparingly to questions pertaining to the organization of courts and judicial procedure; questions relating to the exercise of powers not delegated in the Constitution; interference with state powers; ex post facto laws; laws impairing obligations of contract; denial of trial by jury, and other fundamental individual rights, as recognized generally by the laws of all civilized lands. But, following the adoption of the Fourteenth Amendment, the nullified laws partook of quite a different character. It would be difficult to classify all of them, but the large majority of the laws were nullified on the claim that they were in conflict with some provision of the Fourteenth Amendment, either the “due process” clause or “equal protection of the laws” clause — or both.
A very large percentage of the statutes nullified by the Federal courts, or by the state courts following precedents of the former, may be classified as follows:
FIRST. Labor statutes: Those providing for safety appliances to protect the life and limb of the workingman; sanitary regulation in mines, workshops and factories; workmen’s compensation laws; abolishing company stores; providing for hours of labor, pay days, and so on; and the right of laborers to organize and protect themselves in such organization by denying the employer the right to coerce them out of a labor union, or, if they had not yet joined such union, to prevent membership in such union.
The Bureau of Labor, in 1910, issued a bulletin alleging that one hundred and fifty statutes and ordinances relating to labor had been held unconstitutional, either entirely or in part, by the courts of the land.
SECOND. Rate laws: Those undertaking to fix and regulate public-utility rates; for the Governmental control of public-service corporations; and also for the inspection and taxation of the same.
THIRD. Trade and occupation statutes: Those undertaking to safeguard the public interest under the police power of the state, and providing for certain qualifications, inspection and regulation of certain lines of business closely allied with the public welfare.
Numerous other lesser classes might be named, but these will be sufficient to indicate the general class of statutes that have been challenged and, too often, declared unconstitutional on the ground that they were in conflict with the Fourteenth Amendment to the Federal Constitution.
Shall this growing political power under the name of the Supreme Court of the United States go on unchallenged and uncontrolled as the guardian of our American democracy, and as a substitute for “We, the people,” not only in our Federal Government but even in our state and municipal governments?
Justice Hughes, of the Supreme Court of the United States, before the New York State Bar Association, on January fourteenth last, delivered an address in which he used the following language:
“If there were centered in Washington a single source of authority from which proceeded all the Governmental forces of the country — created and subject to change at its will — upon whose permission all legislative and administrative action depended throughout the length and breadth of the land, I think we should swiftly demand and set up a different system. If we did not have states we should speedily have to create them.”
This language is as simple as it is striking. However, there was little need for the learned justice to put the case hypothetically. The great mass of our people believe that there is today “a single source of authority from which proceed all the Governmental forces of the country — created and subject to change at its will — upon whose permission all legislative and administrative action depends.”
The Views of Lincoln and Jefferson
But they go farther than the learned justice and point their finger at the Supreme Court of the United States as that assumed “single source of authority.”
It is but fair to Justice Hughes to say that, during his six years as a member of the Supreme Court of the United States, he has been a frequent dissenter from the prevailing policy of the Supreme Court.
No state statute can be passed today without asking the question: Will the Supreme Court let it stand?
No city ordinance can be passed today without asking the question: Will the Supreme Court of the United States let it stand? But why have states at all if the states shall be mere shapes and shadows; if the states shall not be sovereign in state affairs; if the states must all the while anticipate the viewpoint and judgment of the Supreme Court of the United States, and finally be forced to surrender to the court’s view and veto on public policies?
A judicial body was what was intended to be created by the Constitution of the United States; but, instead, we have a political body passing on political questions — not partisan ones — great questions of public policy affecting not only national interests but state and even municipal interests, all the while exercising over them the right to veto, the right to supervise, the right to modify, the right to destroy. And when the people once thoroughly wake up, will they not consider the suggestion of the learned justice to, “swiftly demand and set up a different system”?
Lincoln, on the battlefield of Gettysburg, in an immortal address closed with these words:
“That we here highly resolve … that the nation shall, under God, have a new birth of freedom, and that government of the people, by the people, and for the people, shall not perish from the earth.”
Lincoln placed the paramount power of the Government in the hands of the people, and forty-six of the forty-eight state constitutions have reaffirmed this doctrine by declaring: “All political power is inherent in the people.”
From time to time various reforms have been suggested to correct this growing evil, all the way from a constitutional amendment denying such power to the recall of judges, the recall of judicial decisions, and various other ways and means of correcting this use and abuse of the power.
Federal constitutional amendments are so difficult and tedious that this method is hardly worth considering. Only two amendments to the Federal Constitution have been adopted in the last fifty years.
The recall of judges and the recall of judicial decisions presuppose that the wrong has been done in a particular case and that an effort should be made to correct it by removing the judge, though his successor may be little if any better; or by recalling the decision, which would be difficult in its practical political operation.
The Ohio Remedy
Ohio has paved the way for a remedy by the states by adopting, in 1912, as part of its constitution the following provision — Article IV, Section 2:
“No law shall be held unconstitutional and void by the supreme court without the concurrence of at least all but one of the judges, except in the affirmance of a judgment of the court of appeals declaring a law unconstitutional and void.”
I do not commend the exception. It results in this anomaly: that if the state court of appeals by a vote of two to one holds the law unconstitutional, four of the supreme court judges may hold it unconstitutional; and if the court of appeals by a vote of two to one, or unanimously, holds the statute constitutional, then six of the seven judges are necessary to hold it unconstitutional. There should not be this discrimination. The exception should have been omitted from the constitution.
As a step in the right direction this constitutional provision of Ohio is generally approved by our people and has been found to work well as an effective and salutary restraint on the judiciary.
Though Ohio furnishes the suggestion of a remedy for the several states, this remedy is of little consequence where a Federal question is involved under the Fourteenth Amendment; for there the Supreme Court of the United States would take jurisdiction, and could, by a vote of five to four, or six to three, as has been quite common of late, hold the state statute dealing with state matters as unconstitutional.
The Supreme Court of the United States, in the exercise of the power to nullify a statute, state or Federal, on the ground that it is contrary to some provision of the Federal Constitution, has uniformly held that it must be “ clearly” so; and as a standard of clearness has again and again held that the conflict must be “beyond a reasonable doubt.”
Now, how can the conflict between the statute and the Constitution be clear or be- yond a reasonable doubt when nine men, sitting as judges of the Supreme Court of the United States, presumably of equal integrity of mind and heart, equally patriotic, equally learned in the law and the Constitution, divide on the judgment of unconstitutionality by five to four or six to three?
When we deal with the criminal, no matter how atrocious or how overwhelming the evidence may be against him, he is presumed to be innocent; and before he is found guilty the twelve men in the jury box must find that guilt to a moral certainty or beyond a reasonable doubt. On that proposition all twelve must concur. On a matter affecting the millions of people of a state, and perhaps the hundred millions of a nation, the statute should not only be presumed constitutional — and this is the law — but, before that presumption can be overcome, should it not be by at least a three-fourths concurrence, or seven of the nine judges of the Supreme Court?
Melville Davisson Post, in an article in this weekly under date of December 18, 1915, uses this language with reference to the decisions of the Supreme Court of the United States:
“Out of seventy-seven consecutive decisions rendered by the Supreme Court of the United States, twenty-nine were given by a vote of five to four, and forty-six by a vote of six to three; in only two instances did as many as seven out of the nine justices agree.”
On the ordinary legal question a mere majority must be sufficient for a judgment, else in many cases there could be no final judgment. But in cases involving public policies, as defined by state and Federal statute — cases involving questions of eminent domain, taxation, police power, and the like, which are inherent and sovereign in the domestic affairs of the state and the home-rule affairs of our municipalities, questions that are more of a political nature than legal — why should not at least a three-fourths vote be required by the Supreme Court of the United States on the fact of clear conflict, before the statute or ordinance should be nullified by the Supreme Court of the nation?
When the statute clearly permits what the Constitution clearly prohibits, or the statute clearly prohibits what the Constitution clearly permits, you then have, in such a situation, that clear conflict where both statute and Constitution cannot stand. Of course the statute should yield to the fundamental law — the Constitution.
But who shall be the judge as to such clear conflict? We have seen that, in England, Parliament alone determines this question — not the courts. In France it is the Senate and Chamber of Deputies — not the judges. And in every leading nation of the world, save the United States, it is likewise the legislative body that determines whether or not there is such clear conflict; and the action of such legislative bodies is final.
The courts of those nations have nothing whatever to do with the question. Their legislative bodies are representative bodies — at least, the controlling branch is elected directly by the people.
But here in the United States, for more than a century, the courts have exercised this power without warrant of the Constitution, but by authority of judicial custom and precedent, which the courts themselves have widened and extended; so that they are not only the Supreme Court but the supreme legislature, the supreme executive, the supreme government of the nation, the states and our municipalities.
How Congress Can Mend Matters
Now the thing that is proposed is not entirely to reverse this order, but to recognize and restrain it by applying the very principles and rules that the Supreme Court itself has for a century or more announced — this doctrine of clear conflict; this doctrine of a conflict beyond a reasonable doubt, which should be clear to more than a mere majority; else it is clearly not clear.
There is nothing radical or revolutionary about requiring more than a mere majority vote in unusual or exceptional procedure. Legislatures of state and nation, when they depart from the regular order in lawmaking, frequently require a two-thirds or three-fourths vote. Why should not the courts, when they depart from the regular order by law-unmaking, be required to do so by more than a mere majority vote — by a two-thirds or three-fourths vote?
In order that Congress may propose an amendment to our Federal Constitution it is expressly provided that two-thirds of both houses shall concur; and such proposed amendment cannot become a part of our Federal Constitution until three- fourths of the states have ratified the same by their legislatures or conventions.
Of course the adoption of a Federal Amendment to the Constitution limiting the power of our Federal courts in this behalf would be effective when accomplished; but the difficulties in the way of its accomplishment would be a repetition of the time and effort made in behalf of the amendment for the election of United States senators by a direct vote of the people, and for an income tax. And it is utter folly, under the enlarged jurisdiction asserted by the Supreme Court of the United States, on the Federal questions arising under the Fourteenth Amendment and other amendments, to attempt to cure this evil through state constitutions; for, as was said of old, “Saul hath slain his thousands, and David his ten thousands.”
So it can be truthfully said today that though the state courts have assumed jurisdiction to nullify legislative acts, the chief offender in this behalf, and from whom the state courts have found precedents more or less obligatory on them, has been the Supreme Court of the United States. Now, how can this limitation on the power of the Federal courts, touching constitutional questions, be brought about?
After a careful examination of the Federal Constitution I am persuaded that there is no need of a further amendment in order to authorize Congress to place a limitation on the Supreme Court of the United States on Constitutional questions. The power and authority are there now in the clearest and most unambiguous terms. It is found in the Federal Judicial Article III, Section 2, in this language:
“In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
If now Congress should pass an act declaring that no state or Federal statute should be declared null and void, as contrary to public policy or contrary to any state constitution or the Federal Constitution, unless by the concurrence of a three-fourths vote of the Supreme Court of the United States, the evil would be very largely if not entirely remedied.
If this article shall have produced an interest in this subject, a discussion of the underlying principles of democracy, a consideration of the remarkable growth and evolution of this power of centralized government by the Supreme Court of the United States, and whether or not some practical and effective restraint is not highly and immediately essential to the preservation of our American system of government, then it will not have been in vain.