'due process' and 'equal protection of the laws' which have brought forth the most abundant crop of judicial nullifications."1 This statement is false and misleading if sought to be applied to National legislation held invalid by the Supreme Court. For it is a fact that only five cases can be cited in which the Court construed “due process" to invalidate an Act of Congress. Let us note that the Child Labor Cases did not involve any question of "due process under the Fifth Amendment, for the decisions were based on a construction or interpretation by the Court of the meaning of the words "regulate commerce among the several States" and "to lay and collect taxes", in Article One, Section 8, of the Constitution. Hence, there exists no great evil as to "due process" decisions sufficient to warrant a fundamental change in the Constitution with respect to the judicial power relating to Acts of Congress. Most of the complaints with reference to the Court's action under the "due process clause will be found to be directed against its decisions holding State statutes violative of this clause of the Fourteenth Amendment. But the Court's power to hold State laws invalid is not based on the same reasons or derived from the same source as its power relative to Federal laws; and the proposals made by Senator Borah and by the late Senator La Follette do not assume to control the Court's decisions as to State statutes. Furthermore, the facts are again mis

2

1 New Republic, Oct. 1, 1924.

2 Writers frequently overlook this difference between the function of the Court in holding an Act of Congress invalid, and its function in holding a State statute invalid. As an example of such confusion, see Social Policy and the Supreme Court, in The New Republic, July 15, 1924: "The Fourteenth Amendment, in plain truth, deals with 'law' very differently from ordinary

represented even as to such decisions; for it will be found that the number of State laws of the class known as "social justice" legislation held invalid by the Court is comparatively few.1

Labor and its representatives may well ponder the very suggestive words of Senator McCumber, in the debate over the Clayton Act, in 1914:2

There are no people in this country who are more deeply concerned in maintaining the constitutional power of the Courts than are our laboring people. Paralyze the arm of the Court and a tyrannical power will take its place in the future as it has always taken its place in the past. Let every laboring man pause before he strikes the protector of his own liberties.

And each individual working man should ask himself the question: Have I such implicit trust in the correctness and justice of every thing done by Congress as to be willing that Congress should legislate as to my rights, at its own sweet will, unfettered by any bounds of a written Constitution, or by any restraining hand of a Federal Judiciary sworn to uphold the Constitution? Is the party in power in any particular Congress so just in its views and actions, so protective of the minority, so truly representative of the wishes, rights, and liberties of the people, that I am ready to trust it with unlimited power?

law in its incidence, in its raw material and in the stuff that determines decisions. The multitudinous cases . . . are, in essence, judgements upon social policies. . . . It it sheer pedantry to prove that power to declare legislation invalid antedated our Constitution. It is wholly confusing to assert that other nations today entrust their Courts with questions of constitutionality. What matters is that no other nation entrusts its Courts with such questions of constitutionality as our Supreme Court has to deal with under the Fourteenth Amendment."

1 See The Progressiveness of the United States Supreme Court, by Charles Warren, Columbia Law Rev. (April, 1913), XIII; A Bulwark to the State Police Power, by Charles Warren, ibid. (Dec. 1913), XIII.

2 Cong. Rec. 63d Cong., 1st Sess., p. 13965, Aug. 13, 1914.

CHAPTER EIGHT

THE INDEPENDENCE OF THE COURT

"The morals of your people, the peace of the country, the stability of the government rest upon the maintenance of the independence of the Judiciary. It is not of half the importance in England that the Judges should be independent of the Crown, as it is with us that they should be independent of the Legislature. Is it not our great interest

to place our Judges upon such high ground that no fear can intimidate, no hope can seduce them?" JAMES A. BAYARD of Delaware, in the

House, Feb. 20, 1802. 7th Cong., 1st Sess.

"It seems to have been supposed, at the time this subject was before the Nation, to be necessary to interpose some barrier to protect the rights of the minority against the persecuting spirit of an overbearing majority and to secure an accused individual against oppression and injustice from the strong arm of power. The independence of the Federal Judiciary was deemed a valuable safeguard against the encroachments of the Federal Government on the rights of the people and the sovereignty of the States." - JOHN POPE of Kentucky, in the House, Feb. 24, 1809. 10th Cong., 2d Sess.

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"The Constitution does not proceed upon the supposition of the infallibility of Congress, or upon the supposition of Executive infallibility. Every member of Government, who is sworn to support the Constitution, is to perform his public trust according to what he believes to be the true construction of the rule of duty to which he is bound by oath.... The Judges of Courts of the United States are considered as not bound to afford any agency or aid toward carrying into effect a Legislative provision which is unconstitutional.”—Samuel W. Dana of Connecticut, in the House, Feb. 2, 1809. 10th Cong., 2d Sess.

"The independence of the Judiciary is at the very basis of our institutions."-WILLIAM HARPER of South Carolina, in the Senate, April 14, 1826. 19th Cong., 1st Sess.

One of the favorite forms of attack upon the Supreme Court's exercise of the power to pass upon the validity of Acts of Congress is to allege that it makes the Court superior to Congress, that it destroys the

independence of one of the three coördinate branches of the Government. Thus, Jackson H. Ralston, long the counsel for the American Federation of Labor, in an exhaustive report on the subject in 1923, wrote:

And stating the proposition in other terms, if we concede that there are three coördinate branches of the government, is not such a concession fatal to the idea that one branch can destroy the work of the others on some theory of its own, relative to the subject of constitutionality?... The argument is made that when Congress passes an unconstitutional Act, such Act is in excess of its powers under the instrument creating it, and should not be enforced. But this is reasoning in a circle, because no power is given to any body other than Congress to determine the question of constitutionality; and the Courts, as has been explained, cannot do it without Congress ceasing to be coördinate and becoming a simple subordinate branch of the government.

This charge, however, is unfounded; it proceeds from a complete misunderstanding of fundamental principles of the American Constitution. When we speak of the three coördinate branches of the Government, if we mean by "coördinate" that the Congress, the Executive, and the Judiciary are each a complete governmental body exercising its own peculiar functions, we use the word accurately. If, on the other hand, we mean by "coördinate” that each of the three branches of the Government is completely independent of the other, and not subject to be affected in any way by the other the meaning which apparently those who share Mr. Ralston's views give to the word then it is entirely untrue that the Constitution was ever intended to make,

or did make, the three branches "coördinate" to that extent.

When in the State Constitutions of Virginia and of other States, it was provided that "the Legislative, Executive and Judicial powers of government ought to be forever separate and distinct from each other", the phrase was used only in a very general way. As a matter of fact, as Madison said in The Federalist: "If we look into the Constitutions of the several States, we find that, notwithstanding the emphatical, and in some instances, the unqualified terms in which the maxim has been laid down therein, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct." And as William R. Davie said in the North Carolina Convention of 1788: "It is true the great Montesquieu and several other writers have laid it down as a maxim not to be departed from that the Legislative, Executive and Judicial powers should be separate and distinct. But the idea that these gentlemen had in view has been misconceived and misrepresented. An absolute and complete separation is not meant by them. It is impossible to form a government upon these principles. Those States who had made an absolute separation of these three powers their leading principle had been obliged to depart from it. It is a principle, in fact, which is not to be found in any of the State Governments. . . The meaning of this maxim I take to be this that the whole Legislative, Executive and Judicial powers should not be exclusively blended in any one particular instance." 1

1 Elliot's Debates, IV, 121, 122.