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It is to the credit of the American bar that its leaders have had 80 much to do with the upbuilding of American institutions and our civilization and with the making of the laws under which this Nation has grown from the three millions who lived in scanty settlements bordering on the Atlantic coast to the ninety and more millions who have populated our country in its length and its breadth-laws that have made possible this climax of human effort. Has the mission of the lawyer ended? Has he lost his power and his right to influence among the people? I do not believe it.
The magazines, the daily newspapers, and political orators have freely criticized the system under which laws are administered in the United States. There is a great deal of popular dissatisfaction with the administration of law, but that dissatisfaction which expresses itself in fierce and unreasoning criticism of our courts and of the profession to which we belong is largely based upon ignorance of legal principles and misapprehension of the facts. There are defects in the administration of law in the United States which are a reproach to it. The delays and expense of litigation have no justification, and the useless and cumbersome science of procedure has obscured the merits of many a cause. To adopt the words of an eminent southern lawyer
However, because there is a leak in the roof we should not tear down the house; and because there are defects in the administration of law I can not yield myself to the proposition that our system of jurisprudence should be destroyed.”
And the bar is itself awake to these evils, and through the bar associations of the States and the American Bar Association there has come the assurance of radical reforms along these lines. In addition to this, the United States Supreme Court has revised the rules of Federal equity procedure so as to place the conduct of equity causes in the courts of the United States on a simple and rational basis and abolish useless formality and expense.
The courts and the bar may expect to be criticized for a defective and stupid administration of law, although the public itself, because of its well-known niggardliness toward the judiciary and the prevailing low grade of business morals, must bear its share of the blame for this.
The situation is one which should be met and dealt with in a spirit of fairness on our part, but we demand of the critics of the courts and the bar that they shall be fair, honest, and intelligent in their criticisms.
There are very many well-intentioned but poorly informed folks who talk a great deal about the Constitution and the courts and the people without any clear conception of the function of the judiciary under our form of government, and they talk about throwing aside not only the restrictions but the very safeguards that are contained in the Constitution of the United States, just like people change their clothes to suit different occasions and different degrees of temperature.
Students of American history are wont to think of those years which intervened between the close of the Revolutionary War and the adoption of the Federal Constitution as the critical period of
1 "The unrest as to the administration of law," by Albert W. Biggs, of Memphis; annual address before Texas Bar Association, July 3, 1912
American history, and that eminent historian, John Fiske, has thus designated that stormy time; but the present vociferous renewal of the original challenge both to the sufficiency and efficiency of our Constitution to provide a scheme of government adequate for the American people, and the bold assertion that it does not and can not serve the purpose when applied to twentieth-century conditions, makes pertinent the inquiry whether we ourselves may not be living in a time more pregnant with dangers than the fathers knew, for
nothing can be more incompatible with justice, nothing more corrosive of law, than sensation and excitement.
Marshall, in his opinion in Marbury v. Madison, gave a masterful exposition of the distribution of and limitations upon the powers of government under the Constitution in terms so logical as to admit of no denial from any thinking man who believes in our form of government, and in language so simple that it can not be misunderstood by anybody:
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental; and as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The Government of the United States is of the latter description. The powers of the legislature are defined and limited; and that these limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act, contrary to the Constitution, is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
That distinguished teacher, writer, and juristic philosopher, Roscoe Pound, recently said:
A generation ago we were sure of our political institutions. Now criticism has become the fashionable note.3
Our generation refuses to accept the dogmas of its predecessors; skepticism and incredulity are taught in most of our higher institutions of learning. Kant says:
The present age may be characterized as the age of criticism, a criticism to which everything is obliged to submit.
He further says that law on the ground of its majesty not uncommonly attempts to escape this necessity and thereby arouses the suspicion that its foundation is unsound. No mere theory goes
1 Roscoe Pound, Law and the People. :1 Cranch, 137, 175.
Address before the Missouri State Bar Association, St. Louis, October, 1912, entitled “Social justice and legal justice."
unchallenged, and if a law, whether substantive or adjective, does not meet the public need it deserves to be displaced and superseded; but those limitations which the framers of the Constitution, the supreme law of the land, put in that instrument and which, after the fiercest debates in our history, the people adopted to protect the rights of the minority are not to be discarded at the will of a popular majority nor otherwise than through that solemn, deliberate procedure provided by the Constitution itself. Any other method of amending the Constitution under pretense of carrying out the popular will means revolution and involves a step 2,000 years backward.
Listen to Aristotle: It would seem a just criticism to assert that this kind of democracy is not a constitutional government at all, as constitutional government is impossible without the supremacy of laws. For it is right that the law should be supreme universally and the officers of state only in particular cases, if the government is to be regarded as constitutional. And as democracy is, as we have seen, a form of polity, it is evident that the constitution, in which all business is administered by popular decrees, is not even a democracy in the strict sense of the term, as it is impossible that any popular decree should be capable of universal application.'
The tendency to deny the claims of the existing order of things, though it may arouse our antagonism, calls for calm and dispassionate consideration. The experienced lawyer keeps his head in the hard-fought contests of the forum. If it is our ultimate duty to cleanse the administration of justice of its defects and reestablish the public confidence in our courts, it is our immediate duty to correct the current misunderstanding of the true relations of the Constitution and the courts and the people toward each other by directing attention to certain incontestible facts and fundamental truths which no patriot can disregard. Let me therefore sketch briefly the conditions which confronted the American people before our Constitution was adopted and show why a compact was made for a Union of States in the adoption of that Constitution which Gladstone said is 'the most wonderful work ever struck off at a given time by the brain and purpose of man."
The Confederation had proven a rope of sand; and only through the patriotism and high purpose of Washington did the Revolution result in victory to the ragged, tired American forces. After the surrender of Cornwallis at Yorktown the efforts to establish credit abroad and tranquility at home were unsuccessful. Even before the Revolutionary Army had disbanded, in a letter known as Washington's legacy to the American people, he insisted upon four things which were essential to the existence of the United States as an independent power. Of these essentials, but two need be here noticed:
The first: An indissoluble union of all the States under a single Federal Government which muet possess the power of enforcing its decrees.
The last: The people must be willing to sacrifice, if need be, some of their local interests to the common weal; they must discard their local prejudices and regard one another as fellow citizens of a common country with interests in the deepest and truest sense identical.
1 The Annals of the American Academy of Political and Social Science, September, 1912, p. 37. * Fiske: Critical Period of American History, 64.
The commercial and political rivalry between the States was sharp; the civilization they severally enjoyed differed in degree; the separation of the people was complete and their isolation so great as to be almost beyond our comprehension. There were no steamboats, no railroads, and it took a week or 10 days of uncomfortable and dangerous travel to go from Boston to New York, and, as the mails were irregular and uncertain and the rates of postage very high, people heard from one another but seldom.' It was impossible to raise a revenue to conduct a government. The States passed different traffic and tonnage acts and began to make commercial war upon one another. Connecticut and Pennsylvania quarreled over the Valley of the Wyoming, and the story of the treatment of the unfortunate Yankees by the Pennsylvania Legislature and militia is a chapter reciting the most cruel conduct ever charged against any of the American people, except our treatment of the Indian tribes. The long and bitter dispute between New York and New Hampshire for the possession of the Green Mountains broke out afresh, the farmers and merchants of Rhode Island were in a fierce controversy with each other, and Shay's rebellion occurred in Massachusetts. At this critical juncture, when anarchy seemed the doom of America, Washington conceived a project to connect the headwaters of the Potomac with the Ohio River and inspired the agreement between the States of Maryland, Virginia, and Pennsylvania with reference to the proposed enterprise. From his modest beginning the Constitution was evolved, and the regulation of commerce was the chief motive for the Federal compact.'
The student of constitutional history is familiar with subsequent events which resulted in the adoption of the Constitution. The plan of the Federal Union, as proposed by the delegates from Virginia, which practically obliterated State lines and obliterated State rights, was substantially adopted, except as modified by giving to the several States equal representation in the Senate. But it is not to be forgotten that even then there were men of undoubted patriotism, as they understood patriotism, in and out of the constitutional convention, who bitterly opposed it, chiefly because it meant the surrender of divers powers which had always theretofore been exercised by the States.
James Wilson sought to have his associates take a larger view of the work in which they were engaged than the mere protection of local and transient interests. He said:
We should consider that we are providing a Constitution for future generations and not merely for the peculiar circumstances of the moment.*
Again he said: I am lost in the magnitude of the object. We are laying the foundation of a building in which millions are interested, and which is to last for ages.
Marshall and Story, those two great expounders of the Constitution, were impressed with the same idea of the tremendous scope of
1 Fiske: Critical Period of American History, 73.
· Fiske: The Critical Period of American History, 251; Kasson: Evolution of the United States Constitution, 40.
• Kasson: Evolution of the United States Constitution, 138; see also my paper, “Is the Federal Constitution adapted to present necessities, or must the American people have a new one." Yale Law Journal, March, 1908.
1 Vol. III, Documentary History of the Constitution of the United States of America, 440. •Kasson, 82.
the powers granted by it to the Federal Government, and they took early opportunity to place the Supreme Court on record in favor of such an interpretation of the supreme law as to give effect not only to the distribution of the powers of government within the limits intended by the framers of the Constitution, but which recognized the adaptability of its provisions to changes, so as to “keep pace with the progress of the country.”
Story referred to the Constitution as the "great charter of our liberties.' He said:
The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence.
Said Marshall: But a constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it. Its course can not always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen indeed, if they have not provided it, so far as its nature will permit, with the means of self-preservation from the perils it may be destined to encounter. No government ought to be so defective in its organization as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day."
The limitations of this paper do not admit of extended references and illustrations of the way the commerce clause has worked. But the sure way to demonstrate that the Federal judiciary has from the beginning disclaimed any interference in this department of government is to call the court itself as a witness. If the commerce among the States needs more regulation than it has had, the fault lies with the people, who, through their Representatives in Congress, have the power, under the Constitution, to define and declare the subject of interstate commerce, for, said Wilson, theCongress has power to make all laws which shall be necessary and proper for carrying into execution every power vested by the Constitution in the Government of the United States or in any of its officers or departments."
It will be remembered that Marshall, though not a member of the Constitutional Convention, took an active part in the campaign for its adoption in Virginia, and in McCulloch v. Maryland he characterized'it as "intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.” In that case, Webster, in his argument before the Supreme Court, said:
Congress, by the Constitution, is invested with certain powers, and as to the objects, and within the scope of those powers, it is sovereign.
And the ruling of the court was, that if a certain means to carry into effect any of the powers expressly given by the Constitution to the Government of the Union, be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance.
1 Martin v. Hunter's Lessee, 1 Wheat., 304, 326. * Cohens v. Virginia, 6 Wheat., 261, 387. 1 2 ilson's vi orks (Andrew's ed.), 59. *4 Wheat, 316, 413.