The Courts and Legislative Freedom

TWENTY-FIVE to fifty years ago there were time-honored phrases which were applied by lawyers with more or less popular approval to the American judiciary. The courts were the ‘Palladium of our liberties,’ the ‘Guardians of the Ark of the Covenant.’ To-day the public attitude has largely changed. These phrases are no longer current. The people are dissatisfied with the guardians, and in some quarters there is dissatisfaction with the ark itself. The popular magazines are full of articles upon judicial aggression, judicial oligarchies, and the lucubrations of ingenious laymen, who, unconstrained by any embarrassment through knowledge of law or of the functions or powers of the judiciary, cheerfully lay at the doors of the courts all the ills of our body politic. The legislatures and constitutional conventions are debating proposals for the recall of judges, and the bar associations are adding to the general confusion by sweepingly denouncing, as demagogic attacks upon the courts, all proposals of change except certain excellent, though tardy, measures of procedure-reform emanating from themselves. The platform of one political party advocates a simplification of the method of impeachment. Between indiscriminate attack and unreasoning defense, the courts suffer both from their enemies and, if possible, still more from their friends; and sober-minded citizens are left without light or leading.

What is the fundamental cause arousing this tumult of conflicting charges, this spirit of bitterness, these recriminations and attacks? At bottom, the difficulty will be found to be in a change in the attitude of the people, not toward the courts themselves, but toward law-making bodies; and the desire to readjust, in an essential particular, constitutional power as between the courts and the law-making bodies, by the only feasible method which our complicated system affords — direct application of public opinion.

To attempt to analyze the process of this change would be difficult, and no broad generalization can be made which would not appear in some quarter to be glaringly inaccurate. For one thing, there has been in our country, in recent years, a decided growth in actual democracy. Despite occasional flashes of its ancient power, government by political oligarchies, boss-rule, is slowly losing ground. Invisible government is giving way to visible government of a better type. Again, we have passed industrially from individualism to collectivism, and our law has not yet adapted itself to the transition. A condition of interdependence, socially and industrially, requires recognition and regulation by law. Senator Root has, with great felicity, expressed this in a recent address. He says, —

‘Instead of the give-and-take of free individual contract, the tremendous power of organization has combined great aggregations of capital in enormous industrial establishments, working through vast agencies of commerce, and employing great masses of men in movements of production and transportation and trade, so great in the mass, that each individual concerned in them is quite helpless by himself. The relations between the employer and the employed, between the owners of aggregated capital and the unit of organized labor, between the small producer, the small trader, the consumer, and the great transporting and manufacturing and distributing agencies, all present new questions, for the solution of which the old reliance upon the free action of individual wills appears quite inadequate. And, in many directions, the intervention of that organized control which we call government seems necessary to produce the same result of justice and right conduct which obtained through the attrition of individuals before the new conditions arose.’ ¹

There is beneath all a spirit of restlessness in the people not to be overcome by soporifics or reactionary forebodings, a dissatisfaction with things as they are, and a demand upon lawmaking bodies for greater service in harmonizing law to the requirements of a changed industrial order. To meet these new conditions new measures are required. They must proceed from law-makers. In response to that demand in the states and in the nation, long-neglected subjects of legislation are receiving attention. With this growing interest in such matters the law-maker, and those interested in legislation upon these topics, find in certain fundamental parts of the work of legislation a conflict of power between the law-maker and the courts.

Such a conflict is more or less essential in any system of checks and balances like ours. With us it has, in fact, always existed, but just now the force of public opinion is more largely on the side of the law-maker and those whom he represents in the demand for legislation, than it was in the days when he was generally discredited and distrusted, and when he was less the representative of the people and more the tool of a boss-ridden party system.

The sphere of power of the law-maker, under our present system of checks and balances, as interpreted by our courts, is the arc of a pendulum, which has the phrase ’due process of law’ at both extremities. How wide the pendulum may swing depends upon how far the courts consider it lawful that the legislature should go before coming in conflict with the phrase.

It will be said at once that this statement is incorrect because every state constitution, as well as the Constitution of the nation, has a multitude of limitations upon legislative action, and the provision that property shall not be taken without due process of law is only one of them. This criticism is not without merit. But the due-process clause is the principal example of these broad general expressions current in our Constitution which, not placed there by the courts, are nevertheless to be construed and given a meaning and a force as limitations of legislative and executive power. This provision is the great stumbling-block of the lawmaker because it is not defined except in vague generalities by the courts, and is not readily susceptible of definition.

For illustration, take a subject with which a dozen American states are now struggling, and on which there is an aroused public opinion, — industrial accidents. A workmen’s compensation act is under legislative consideration. A bill is drawn recognizing, as in Europe, that such accidents are an inevitable part of modern industry and are chargeable justly upon the industry itself, and providing for compulsory compensation by the employer for all accidents occurring in his plant, irrespective of whether they are occasioned by his fault. Does it take property without due process of law? The law-maker looks to see what ‘due process’ is declared to mean by the courts. What does he learn? He learns first that the words are equivalent to ‘ the law of the land ’ as used in Magna Charta. This is historically interesting, but to him of no practical value. He then learns, if he looks a little further, that what he has tried to find out by judicial decision, the courts themselves have refused to define, except in terms which afford no practical help, saying that these words are incapable of accurate definition, and that it is wiser to ascertain their intent and application ‘by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning upon which such decisions may be founded.'

‘It must be confessed,’ says the United States Supreme Court, ‘that the constitutional meaning and value of the phrase “due process of law” remains to-day without that satisfactory precision of definition which judicial decisions have given to nearly all the other guaranties of personal rights found in the constitutions of the several states and of the United States.’

The courts say, in substance, to the law-maker, ‘We can give you no rule or definition for this thing which shall enable you to know what due process of law is before you legislate, but if you pass some law and afterwards it is questioned in court, we can then tell by application of this indefinable thing, by our process of inclusion and exclusion, whether the particular law is void or not, as taking property without due process of law.’

When a law has been enacted and is being tested in court, the brief of the lawyer who attacks it is usually full of illustrations of other statutes more or less like it, which courts have held to be bad, as taking property without due process of law. The brief of the lawyer in favor of the law is based on those cases, if any he can find, in which more or less similar statutes have been declared valid, and with these cases he has generally an argument that this particular kind of a statute which he desires to uphold is what he calls a valid exercise of the police power.

Now, the legislator is interested in both of these things. If he cannot know in advance what is due process of law which tells him what he must not do, he will be quite safe about his statutemaking if he can know what is the scope of the police power which tells him what he can do. Upon searching among court decisions for a definition of this police power, so-called, he finds there is no concrete definition of it. It also is incapable of definition. The courts do, of course, describe it. In a thousand decisions it is referred to as the power of the law-making body ‘ to promote the health, peace, morals, education, and good order of the people by the enactment of reasonable regulations for that purpose.’

But since it is incapable of exact definition and there are no certain rules governing it, the courts again say that the question whether a law is a valid exercise of the police power must be determined by testing the individual statute by application. ‘With regard to the police power, as elsewhere in the law, lines are pricked out by the gradual approach and contact of decisions on the opposing sides.’ The courts will examine the statute. If they find that, in their judgment, the legislature adopted it in the exercise of a reasonable discretion, based upon sufficient facts, they will hold that the law is a valid exercise of the police power. To forbid barbers to work on Sunday is reasonable. To forbid women to work at night is unreasonable. So the first law is a valid exercise of the police power, and the second takes liberty and property without due process of law.

In the meanwhile, what becomes of the law-maker? He is endeavoring to respond to the demands of the people for legislation on questions which, without any constitutional puzzles injected into them, are in themselves difficult in the extreme. New conditions need new remedies. He devises the new remedy. He introduces it as a bill, which contains some limitations upon the conduct of some class or body. It is debated in committee. It is amended to meet objections. It is debated in the two houses. It is passed. It is examined by the governor and his advisers. It becomes law. Then it goes to the court and if three out of five men, greatly learned in law, applying the judicial mystery of due process of law, decide that the thing attempted is, as they see it, not a reasonable exercise of the discretion of the legislature in imposing the restraint or regulation proposed, the wisdom of two branches of the legislature and of the governor is overcome. The law is not a law.

The thing which the courts in these decisions are dealing with is that process of adjustment, inevitable in law as in life, between the rights and liberties of the individual and the rights and necessities of society. The police power, so-called, is in law the branch which expresses the expanding needs of society, and through which society’s demands upon the individual are made. Society asserts, by legislation based upon police power, the necessities of social coördination for the development of the state. The individual — or more often some one pretending to act in his interest — resists, through the due-process clause, the encroachments of society upon ‘natural’ right.

The problem thrust upon the courts is the duty of harmonizing — without set rules or chart or compass — the relations of man, the individual, to the society to which he must belong. Plato declared that he was ready to follow as a god any man who knew how to combine in his conduct the law of the one and the law of the many. How infinitely more difficult the task of prescribing such conduct, not for one’s self only, but for the one and the many of a complex state! It is the most difficult of tasks. It is imposed upon no other courts than ours in the world. The duty which Milton took upon himself in his epic, of justifying the ways of God to man, is in our time only paralleled by the duty of American courts of justifying the ways of society to man and of man to society.

The theory of procedure in this process of justification, to be sure, is simple. Show us — say the courts — a necessity of society so great as to require the subordination of the personal rights of the individual to the greater demands of the aggregation of individuals composing the whole, and we will sustain the law which causes that subordination. Show us a case where, for an alleged social need, but having no just cause or basis, or real social requirement, the rights of the individual are threatened with arbitrary destruction, and we will in turn protect the individual from such a law by declaring that his life, liberty, or property cannot be taken without due process of law.

The essential conflicts between the courts and the legislatures on these subjects are over questions of fact. The legislature says, for example, We have found as a fact a social necessity for limiting the hours of labor of bakers.

We have examined into the condition of their work and find that their welfare, and thereby the welfare of society, requires such limitations. The Supreme Court of the United States says that there are no reasonable grounds for believing that such social necessity exists, and it finds the law to be unconstitutional in taking away the baker’s liberty.

As to the hours of women in laundries and men in mines, the court approves the legislative finding of social fact, declaring these to be cases where the legislature has adjudged that a limitation is necessary for the preservation of the health of such employees; and there are reasonable grounds for believing that such determination is sustained by the facts. The question in each case is whether the legislature has adopted the statute in the exercise of a reasonable discretion, or whether its action is a mere excuse for an unjust discrimination or the oppression or spoliation of a particular class.

The opportunity for conflict between the legislature and the courts on questions of social fact is apparent. In this conflict, public opinion finds itself more and more on the side of the legislature. This shift in public opinion does not come because the majority of people are convinced that legislators are wiser than courts or less prone to make mistakes, but is born of a more general realization of the fact that, so far as law can effect them, solutions of industrial and economic questions are necessarily legislative ones, and that to deny the legislator the power to make mistakes is also to deny him the power to remedy or correct evils which can receive correction only through legislation. Underlying a great part of the current discussion of the judiciary, and as a main basis for the nostrum entitled the recall of judges, is this matter of the potential domination of the legislative idea of reasonableness by the judicial idea of reasonableness.

The conservative deprecates and deplores the irritation and impatience thus engendered and manifested toward the courts. As a process of adjustment of such difficulties he repeats the time-honored argument that the true remedy is to meet these conflicts, one by one, with the cumbrous, difficult, and dilatory procedure of piecemeal constitutional amendment. The suggestion that the situation can be met in any other fashion or by any change of attitude of the courts themselves, he regards as sheer demagogy. What the conservative refuses to see, in his resistance to the new forces in public opinion, is that the more progressive or radical influences in our society are themselves endeavoring to accomplish an essential conservative reform through this insistence upon the recognition by the courts of the need of greater legislative freedom. They are endeavoring to find a modus vivendi in our Constitution for an ancient and time-honored clause which, upon the conservative’s own logic, they should seek to repeal.

It is essential that we should see the true nature of this conflict, and the alternative which it affords. We must do one of two things: either determine to continue our courts in their present position of harmonizers between the individual and society, and thereby continue in form and theory their present power over legislation, looking to the courts themselves for such practical modification of their exercise of that power as shall give a necessary leeway to legislation; or, what has not yet been suggested, we must abolish vague constitutional limitations, and decide that an impracticable and unworkable power of the courts over legislatures should be removed by a repeal of the clause or clauses of the Constitution forming the basis for its existence.

As a conservative, as well as a practical people, we are trying the first of these alternatives. Without changing the theory of judicial power in any fundamental way, we are seeking to have it practically so applied by the courts as to enlarge the province of legislation. We are endeavoring to accomplish this largely by a severe criticism of those judicial decisions which interfere with what many now recognize as an essential part of legislative freedom.

We are asking to have the courts themselves recognize an extension of the ordinary domain of legislative power, that is, the domain in which the law-maker may enact his statute without being obliged to claim justification for what he enacts in any special plea of social necessity, — the police power. The extent of this common field of legislation depends largely upon the breadth of action permitted by the courts in their definition of due process of law. One definition of the test for due process, in the constitutional sense of the term, has been laid down by many decisions of the courts.

‘We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of procedure existing in the common and statute law of England before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.’

More briefly they describe it as ‘a conformity with the ancient and customary laws of the English people.’

If the basis for determining whether we can do certain things legally in the twentieth century is to be found by ascertaining whether they could legally have been done in England at or prior to the fourth day of July, 1776, the problem of grasping new conditions in new ways by new laws is made infinitely difficult. The touchstone for progress then becomes not solely the needs of the present, but the extent to which these needs can be met by the application of historical precedents of the past. Nations are incapable of growth in any such fashion, by any such method.

It is doubtless true that, historically, due process of law, as understood and applied in England from the days of Magna Charta to the time when we adopted our Constitution, contained far fewer limitations upon executive and legislative powers than those which have been construed into it by American courts in the past hundred years. But it is the method of progress which is important. No man can run forward freely while continually looking backward.

There is, however, another view of due process consistent with national growth. As the Supreme Court of the United States has said, —

‘The Constitution of the United States was ordained, it is true, by descendants of Englishmen who inherited the traditions of English law and history, but it was made for an undefined and expanding future, and for a people gathered, and to be gathered, from many nations and many tongues, and while we take just pride in the principles and institutions of the common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not unknown. . . . There is nothing in Magna Charta rightly construed as a broad charter of public right and law which ought to exclude the best ideas of all systems and of every age, and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful form.’

The theories of due process of law: the narrow one, which makes its touchstone history and the settled usages and modes of procedure used in England prior to our independence, and the broad one, which sets aside all such limitations and gives the phrase the expansive power by which there may be created in America law not only for the descendants of Englishmen, but for a people gathered from many nations and many tongues, represent an actual, but not yet freely recognized, conflict between the courts themselves.

The expansionist and the contractionist notions of due process of law are expressed in many judicial decisions. They conflict at times in the decisions of the same courts. Both cannot live. The permanence of our constitutions in their present form depends upon the establishment of a broad doctrine which permits a free exercise of all the essential attributes of legislative power.

What may be called the expansionist theory is to-day rapidly gaining ground. The notion that the courts form an adamantine barrier to progress is false. They do not bow to every fitful breath of change. Some judges move more slowly than others, to be sure, in adapting the law to the settled will of the people. But to that will they do conform. What is taking place is a slow but sure change, under the pressure of formulated public opinion, in the character and scope of the constitutional limitation of due process of law. Even when found by many most alarming, the movement from which this pressure comes is essentially a conservative one. Nowhere has there been, from any respected source, the suggestion that the whole framework of our constitutional system should be destroyed or that the power of the courts to annul acts which contravene the clause should itself be destroyed. This in itself is a tribute to the courts. If the people were satisfied that the power to declare laws unconstitutional under the dueprocess clause had been in the main detrimental to their best interests, that its continuance was necessarily or essentially a menace to the progress of the nation, the reform movement would have a different programme. ‘No,’ said the old farmer; ‘I don’t want a divorce, what I want is a leetle more freedom on lodge nights.’

The people do not desire to abolish the ancient landmarks. There is as yet no expressed desire on the part of any group or party to take from the courts the power to test legislation by ascertaining whether it conforms to natural and inherent principles of justice; or the power to forbid that one man’s rights or property shall be taken for the benefit of another, or for the benefit of the state, without compensation; or that any man should be condemned in his person or property without an opportunity of being heard in his own defense.

No other country in the world permits its courts to test or to approve or condemn legislation by the application of any vague concept such as ‘natural and inherent principles of justice,’ or by the interpretation of phrases incapable of approximately exact meaning which law-makers can know in advance. In theory at least, the continuance of a constitutional system for governing ninety millions of people on such a basis involves peril, if not disaster. ‘Yes,’said an English barrister to me some months ago, ‘things are pretty bad with us just now. A lot of this Lloyd George legislation is stuff and nonsense, too. Of course Parliament had to do something, though; and with us, to be sure, it has a pretty free hand; but,’ he added cheerfully, ‘if we were tied up with your Constitution we should be having a civil war.’

A civil war is too remote a prospect to arouse in an American much sense of alarm. Our natural resources are still vast. The field of individual opportunity, though narrowing, is still large. The sense of any impending peril which requires a fundamental revision in our system of government, our theory of national life, is still unfelt. We do realize the need of a change in the theory of legislative power which shall give the law-maker more freedom. Some of us are aroused to this need by problems of labor, the Lawrence strike, the McNamara and Haywood affairs; some by problems of capital, by the trust investigations; while the high cost of living has influenced the unthinking mass. The result is a desire to readjust the position of the courts in the general system of our government.

The recall of judges is in small measure due to a desire to get rid of judges, but more largely to a desire to remind them, by its crude potentialities, of their duties to society as well as to the individual. The misnamed recall of decisions is an entirely different and less objectionable proposition having the same general end in view; a plan under which due process of law in its final analysis is to be determined by the people who put the words in the Constitution for the judges to follow, and who put the judges in their places to interpret these words. Instead of attempting to terrorize the judge by the threat of personal punishment through the recall, instead of repealing the due-process clause, instead of adopting amendments to our constitutions, necessarily broad and general, and conferring large and possibly dangerous powers on legislators in advance of legislation, it proposes to refer to the people a specific law, with the “due-process” objections of the courts to its constitutionality! Whatever the practical difficulties might be in its operation, its theory is not radical but conservative. It proposes that the question whether a measure is due process of law shall be tested by the judgment of the legislatures and the courts and, when they disagree, by the sober judgment of the people, who created both.

Ohio, in her constitutional convention, has submitted to the people, and they have adopted with general approval, the proposition that no law shall be declared unconstitutional unless five out of six of the judges of her supreme court concur.

Other proposals with like objects are made. The debates over them produce charges and countercharges. The forces of reaction, the perpetual minority, which in all ages has believed in the continuance of things as they are, the conservatives who see, as they believe, the threatened destruction of the safeguards of freedom, the still larger class which believes that the American people are as yet only partially capable of self-government, find themselves arrayed in defense of a theory of judicial power which is out of harmony with the new programme of democracy.

This programme has for its initial purpose the more direct participation of the people in their own government, and in the selection of their representatives, and in a more direct sense of responsibility by those representatives to the people. Its first period is still one in which questions to be debated are largely matters of machinery. The direct primary, the presidential preference primary, the initiative, the referendum, the recall, the direct election of United States senators, are not ends of democracy, they are the means by which democracy seeks to express itself. How it shall express itself is another matter. The part of this programme which affects the courts is that which seeks to bring them in line with this movement by compelling them to recognize a shift in the balance of power, a necessary change in their relation to a system which must depend for its strength, its efficiency, and its growth upon the power to create, and not upon the power to complicate or prevent.

The Ark of the Constitution is not to be destroyed, the priests are not to be driven from the temple of justice. But the Ark exists not for the priests and the Levites, but for an expanding nation. Its safe place is not a temple, but the hearts of a people whom it guides, protects, and serves.