"Elegant and readable. Whether you are in favor of judicial restraint or judicial activism, whatever your feelings about the Warren Court, or the Renquist Court, this is a book that justifies serious study."—Robert Stevens, New York Times Book Review
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About the Author
David P. Currie (1936-2007) was the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago. He is the author of four volumes in the Constitution in Congress series and the award-winning two-volume history The Constitution in the Supreme Court.
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The Constitution in the Supreme Court
The Second Century 1888-1986
By David P. Currie
The University of Chicago PressCopyright © 1990 The University of Chicago
All rights reserved.
The Protection of Economic Interests I
I. THE FURTHER DECLINE OF THE CONTRACT CLAUSE
It seems ironic that the Fuller period, best known for giving life to the questionable doctrine that due process guaranteed the right to make contracts in the future, began with two important decisions that diminished the explicit protection that article I, § 10 provided for contracts already made.
A. Hans v. Louisiana
The eleventh amendment had made enforcement of a state's promises difficult by closing the federal courts to actions against states by citizens of other states or of foreign countries, and the Court had convincingly concluded before Fuller's appointment that a state's immunity could not be evaded either by having another state sue on behalf of its citizens or by suing to require an individual official to discharge the state's debt. But the amendment did not forbid suits against states by their own citizens, and it was the Fuller Court that closed that loophole in the 1890 case of Hans v. Louisiana.
Another chapter in the disreputable history of bond repudiation by Southern states after Reconstruction, Hans was an action by a Louisiana citizen against his own state for interest due on its bonds. Although the eleventh amendment itself was inapplicable, the Court said its adoption showed that the country had disagreed with the decision in Chisholm v. Georgia that article Ill's provision extending federal judicial power to "Controversies ... between a State and Citizens of another State" embraced suits against unconsenting states. In its literal application of the words of article III, Justice Bradley concluded, Chisholm had ignored the teaching of "history and experience" that "[t]he suability of a State without its consent was a thing unknown to the law." Quoting convincing passages from Hamilton, Madison, and Marshall, the Court emphasized that "[a]ny such power as that of authorizing the federal judiciary to entertain suits by individuals against the States, had been expressly disclaimed, and even resented, by the great defenders of the Constitution whilst it was on its trial before the American people." These views were as applicable toHans as they had been to Chisholm; the appeal to the "letter" in both cases was "an attempt to strain the Constitution and the law to a construction never imagined or dreamed of." It would be absurd to allow suits against one's own state while prohibiting those against others; "[t]he truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States," and the suit could not be maintained.
Some later observers have professed to find that Hans "construed" the eleventh amendment itself to apply to suits against the plaintiff's own state; others have written that it invoked a common law principle that could be overridden by statute. But the passages just quoted leave little doubt that the basis of the decision was that article III's provision extending the judicial power to "Cases arising under this Constitution" was subject to an implied exception for suits by individuals against nonconsenting states. In favor of this conclusion, as Bradley noted, were all the arguments that had made Chisholm itself questionable. Furthermore, implicit state immunities from the operation of express federal authority were no novelty when Hans was decided. It is nevertheless noteworthy that a Court destined to give unprecedented protection to certain economic interests opted, in a case that could have gone either way, for an interpretation of the jurisdictional provisions that severely impaired the protection of existing contract rights.
B. Illinois Central and Manigault
Two years after Hans the Court undertook a sharp limitation of the substantive protection afforded by the contract clause itself. The Illinois legislature, under shady circumstances, had granted the land under Chicago's harbor to a railroad and then attempted to take it back. The case looked for all the world like Fletcher v. Peck, where Marshall had concluded that a state could not rescind its grant. Yet in a lengthy opinion by no less a friend of private property than Justice Field, the Court held that Illinois had validly reclaimed the land.
The key distinction, in Field's view, was that the land in the Illinois case lay under water. Though the state owned submerged land, it did so as trustee for the public interest in navigation, and it had no power to sell in violation of its public trust. Since the original transfer had thus been invalid, no contractual obligation was impaired when the state rescinded the grant.
The words flow easily off the pen; no fancy reasoning is needed to show that a trustee's powers are limited by the terms of his trust. What powers the people of Illinois had given their legislature, however, would appear to depend upon Illinois's constitution, to which Field never referred. In default of Illinois authority, he invoked a number of decisions from other jurisdictions, not one of which, he conceded, had held a legislative grant of submerged land invalid. The leading Supreme Court precedent cited had expressly declined to decide whether the King of England possessed the power, as a trustee for the British people, to make such a grant and had added that the validity of a grant made by authority of the people of a state "must ... be tried and determined by different principles from those which apply to grants of the British crown...." A New York case heavily quoted by Field appeared to suggest that even the King could alienate submerged land so long as the public right of navigation was reserved, as it had been in Illinois Central. In a dictum significantly omitted from Field's opinion, the New York court had added that the legislature could authorize even the obstruction of navigation. Justice Shiras, in a brief and telling dissent joined by Gray and Brown, came up with Supreme Court dicta and state-court holdings sustaining the power to convey.
Apart from precedent, Field's argument from first principles had serious internal difficulties. He attempted throughout to equate the grant of ownership with the relinquishment of "control" over navigation of the overlying waters. The New York case on which he relied, however, had emphasized that a grant of submerged land did not imply a surrender of the public right to navigation or of the state's power to protect that right by legislation. Moreover, as already mentioned, the Illinois Central grant had been made on the express condition that "nothing herein contained shall authorize obstructions to the Chicago harbor, or impair the public right of navigation." Field protested that this clause "placed no impediments upon the action of the railroad company which did not previously exist," but that only made the dissenters' point stronger: even apart from the explicit limitation, the state had not attempted to relinquish control of navigation.
The Court had already held, building upon a dictum by Marshall in Fletcher v. Peck, that a state could not contract away its authority to regulate under the police power. It had done so, under Field's leadership, with as little concern for the state constitution in question as Field exhibited in Illinois Central. But in the Illinois case Field pulled out all the stops in a creative effort to extend the precedents, contrary to Marshall's distinction, to a case in which the state had parted only with ownership and not with governmental power, and in which the terms of the grant itself protected the public interest with which the opinion was concerned.
Thirteen years later, in its last significant encounter with the contract clause, the Fuller Court in Manigault v. Springs rendered yet another narrow interpretation, upholding a state law authorizing one proprietor to flood another's land despite a preexisting contract in which he had promised not to do so. The police power, wrote Justice Brown, was "paramount to any rights under contracts between individuals. ... [P]arties by entering into contracts may not estop the legislature from enacting laws intended for the public good." In addition to several inapposite precedents construing particular contracts not to contain promises inconsistent with later legislation, Brown relied on the more nearly relevant decision in Stone v. Mississippi that a state could not contract away its police power. But no state promise was in issue in Manigault, and to hold that private contracts were implicitly subject to modification whenever required by the police power was perilously close to saying that states could impair contractual obligations whenever they had a good reason. A narrow interpretation of the scope of proper police-power measures might have avoided reading the contract clause out of the Constitution altogether, but Manigault was at best a life-threatening precedent.
As one might expect after these decisions, the once mighty contract clause played very little part in striking down state laws during the Fuller period.
II. FEDERAL POWER TO PROTECT ECONOMIC INTERESTS
Fuller's accession to the Court essentially coincided with Congress's first major attempts — in the Interstate Commerce and Sherman Acts — to combat perceived abuses of private economic power. Fuller and his brethren, as we shall see, would have ample opportunities to pass upon the scope of federal authority to do so. But federal power was also exercised during this time to protect private economic interests, and from the first the Fuller Court construed federal authority broadly to permit such protection.
A. The Power to Exclude Aliens
The first example of broad interpretation was Justice Field's 1889 opinion for a unanimous Court in the Chinese Exclusion Case, which upheld a federal statute barring the entry of Chinese laborers into the country. Underlying the enactment of this law, as Field observed, was the increasing competition between Chinese and American workers. Acknowledging that denying reentry to individuals who had once lawfully resided in the United States was inconsistent with an earlier treaty, the Court properly invoked precedent indicating that treaties, like statutes, were vulnerable to later contrary congressional action. The argument that the legislation impaired a vested right represented by a reentry certificate issued when the immigrant had left this country was rejected on grounds familiar from contract clause jurisprudence: Congress had no power to promise not to exercise its legislative authority. Most interesting, however, was the ground on which Justice Field defended his central proposition that the exclusion of aliens was among the powers granted to Congress by the Constitution.
A commerce clause argument would have been entirely plausible. Marshall had established in Gibbons v. Ogden that the transportation of persons was commerce, and the Court had struck down state laws excluding aliens on the ground that they encroached upon Congress's commercial power. Field elected instead to find the power inherent in sovereignty, in the teeth of Marshall's confirmation of the well-understood principle that the federal government was one of enumerated powers:
Jurisdiction over its own territory to that extent is an incident of every independent nation. ... While under our Constitution ... the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.
These observations were reminiscent of equally unnecessary arguments about the "inherent" powers of Congress previously made by Justice Miller in two cases involving domestic federal authority, neither of which was cited, and they presaged the much later and more famous dicta of Justice Sutherland about foreign-affairs powers in the Curtiss-Wright case. Three years after the Chinese Exclusion Case, in Fong Yue Ting v. United States, Justice Gray extended the inherent-powers concept to include authority to deport aliens, which seems harder to fit within the enumerated commerce power: when an alien resides in this country, he is not necessarily part of any "intercourse" with a foreign nation. In the context of immigration, at least, the Court could certainly not be described as grudging in its interpretation of federal authority.
B. Delegation of Legislative Power
In 1892, in Field v. Clark, the Court gave a broad reading to federal executive power in upholding another measure designed to protect U.S. economic interests. The Tariff Act of 1890 had authorized the President to suspend the free importation of certain goods from any country that he found had imposed "reciprocally unequal and unreasonable" duties on U.S. products. If he did so, a specified tariff schedule would apply.
The problem here was one not of federalism, as in the alien cases, but of the separation of powers between the President and Congress. Justice Lamar put the objection on the right constitutional peg in a separate opinion joined by Chief Justice Fuller: article I vested the legislative power in Congress, and that meant that Congress could not transfer legislative authority to anyone else. This, Lamar concluded, was what Congress had done: the statute "extends to the executive the exercise of those discretionary powers which the Constitution has vested in the law-making department."
There are contexts in which those invested with authority may lawfully delegate it to others. As influential a writer as Locke, however, had denied that the legislative power was one of them. Moreover, although in form the President in Field was executing a legislative command, indifference to the breadth of discretion left to the executive would run afoul of the accepted wisdom that the reason the Framers placed legislative power in Congress was to assure that fundamental policy decisions be made by elected representatives of the people. Accordingly the majority, speaking through Justice Harlan, conceded without discussion Lamar's formidable premise that the substance of legislative power could not be delegated.
In the majority's view, however, there had been no such delegation. Congress, said Harlan, had made the decision that tariffs should be imposed against any country that charged unequal and unreasonable duties, and Congress had specified what those tariffs should be. The President's only authority was to "ascertain the fact" that unequal and unreasonable duties were being exacted. In so doing he was not making law; he was acting "in execution of the act of Congress." The case was thus governed by The Brig Aurora, in which the Marshall Court had unanimously upheld a statute empowering the President to revive an embargo against England or France upon finding that the other country had "cease[d] to violate the neutral commerce of the United States." Adding an impressive list of statutory precedents dating back to 1794, Harlan concluded that such a longstanding "practical construction" by Congress "should not be overruled, unless upon a conviction that such legislation was clearly incompatible with the supreme law of the land."
Lamar was on sound ground in objecting that it was harder to classify the President's job as mere fact-finding in Field than it had been in The Brig Aurora, since the unreasonableness of a tariff seems less subject to objective verification than the infringement of neutrality. Indeed the neutrality question itself had involved a good deal of independent judgment; the Court's effort to describe the President's duties as ministerial in either case was unconvincing.
Harlan would have done better to argue that the President's power to execute the laws historically and necessarily included more than mere fact-finding. No legislature can be expected to specify how its policy decisions are to be applied to every conceivable fact situation, and the Framers cannot be thought to have demanded the impossible. The 1790 patent law left it to the executive to determine whether an invention was "sufficiently useful and important" to merit protection; the 1795 law authorizing the President to call out the troops left it to him to determine whether or not there was an "imminent danger" of invasion. To label such determinations as merely factual is to obscure the reality that enforcing the laws implies a healthy portion of interstitial policy-making.
Twelve years after Field, in Buttfield v. Stranahan, the Court upheld a delegation to the executive of authority to prescribe "standards of purity, quality and fitness for consumption" of imported tea. Justice White, for a unanimous Court, recast the test in more realistic terms:
[T]he statute, when properly construed ... but expresses the purpose to exclude the lowest grades of tea. ... This, in effect, was the fixing of a primary standard, and devolved upon the Secretary of the Treasury the mere executive duty to effectuate the legislative policy declared in the statute. ... Congress legislated on the subject as far as was reasonably practicable, and from the necessities of the case was compelled to leave to executive officials the duty of bringing about the result pointed out by the statute.
Excerpted from The Constitution in the Supreme Court by David P. Currie. Copyright © 1990 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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Table of ContentsContents Introduction Part One: Chief Justice Fuller, 1888-1910 Introduction to Part One 1. The Protection of Economic Interests (I) 2. The Protection of Economic Interests (II) 3. Full Faith and the Bill of Rights Conclusion to Part One Part Two: Chief Justice White, 1910-1921 Introduction to Part Two 4. From Muskrat to Abrams Conclusion to Part Two Part Three: Chief Justice Taft, 1921-1930 Introduction to Part Three 5. Liberty, Property, and Equality 6. The Distribution of Authority Conclusion to Part Three Part Four: Chief Justice Hughes, 1930-1941 Introduction to Part Four 7. The New Deal 8. The New Agenda Conclusion to Part Four Part Five: Chief Justice Stone, 1941-1946 Introduction to Part Five 9. The Second World War 10. The Preferred-Position Debate Conclusion to Part Five Part Six: Chief Justice Vinson, 1946-1953 Introduction to Part Six 11. From Everson to Youngstown Conclusion to Part Six Part Seven: Chief Justice Warren, 1953-1969 Introduction to Part Seven 12. The First Warren Court 13. The Real Warren Court Conclusion to Part Seven Part Eight: Chief Justice Burger, 1969-1986 Introduction to Part Eight 14. Privacy and Equality 15. Other Limitations 16. The Structure of Government Conclusion to Part Eight Epilogue Appendix A: Justices of the Supreme Court, 1888-1986 Appendix B: The Constitution of the United States Table of Cases Index