August 3, 1935 - Article - The House We Live In, by Garet Garrett

Now many voices are heard to be saying of the house of liberty in which this nation was born that it is very old-fashioned, wanting all the modern conveniences, and too strait for new ideas.

This means only that a sleepless struggle as old as the house itself has come again to crisis. The occasion, but not the cause, of its coming again to a crisis was the unanimous decision of the United States Supreme Court declaring the primary grand device of the New Deal unconstitutional.

What NRA represented was an extreme extension of one idea - not in the historical sense extreme, but in the American scheme extreme indeed. What the unanimous decision of the United States Supreme Court represented was a vehement counter-assertion of the other idea. That was all. But it was enough to raise a storm of political passions.

Shall nine men, not elected by the people, holding office for life, tell the people what they may and may not do?

Shall this country remain in the straight jacket of a Constitution that was written for 13 little seaboard colonies before anybody had imagined railroads?

A member of the House of Representatives rhetorically asked: "Shall Congress be allowed to enact legislation to protect the destitute, the aged and all others who are victims of capitalistic cruelty? Shall an academic body, unreachable by the people, appointed for life, and largely schooled in an atmosphere of wealth and exclusiveness, succeed in throttling such legislation practically every time it is passed?"

The mayor of New York City said: "You cannot leave the destinies of the American people in the hands of a tribunal, no matter how well meaning it may be." In what hands they should be left, he did not say.

The style of criticism toward both the United States Supreme Court and the Constitution was set by the President. On the Friday following the Court's decision declaring the NRA to be unconstitutional, he assembled the newspaper correspondents at the White House and talked to them about it for an hour and a half. That clause in the Constitution granting to Congress the power to regulate commerce among the states- the so-called interstate commerce clause- had been written, he said, in the horse-and-buggy days, when there was no interstate commerce to speak of. That was the clause in the Constitution granting to Congress the power to regulate commerce among the states - the so-called interstate commerce clause - had been written, he said, in the horse-and-buggy days, when there was no interstate commerce to speak of. That was the clause, very liberally construed by himself and his advisers, under which the government had been extending its power to act directly upon social and economic conditions, both to reform them and to promote economic recovery, as, for example, through the mechanisms of the NRA; and just when both he and his advisers were happily thinking they had found solutions for various national problems, then suddenly their solutions had been thrown back in their faces by the Supreme Court. Such a literal and narrow interpretation of the interstate-commerce clause as the Supreme Court had just made would mean that this was the only national government on earth without power to enact an administer laws in control of social and economic conditions. He deplored the decision. Its implications, if projected, would mean that the Federal Government was stripped of all authority to act in behalf of human welfare. And with what all the reporters present described as feeling, the President suggested that the Supreme Court not long before had construed the same clause broadly when in a certain case it was for the benefit of coal-mine owners, wanting an injunction against strikers, only then to narrow it again when the case the government needed the broad construction in order to improve the living and working conditions of miners.

In the New York Times report of that extraordinary interview (June 1, 1935) this paragraph occurs: "He compared it with the decision of 1857 in the Dred Scott case, an important factor in the events that precipitated the Civil War. Mr. Roosevelt did not make the latter reference, but later in the conference nodded when an interviewer cited the results of the older decision."

The use of these open reflections, the President said, was to clarify the public mind. What he wished people to see clearly was in what a disastrous way the New Deal had collided with the judicial power and that something would have to be done about it. He was not yet prepared to say what ought to be done. But at the Capitol, on the floor of the Senate and in the well of the House, voices were saying rashly what ought to be done about it. They were saying this dictatorial judicial power ought to be abated, and resolutions to accomplish its downfall were in writing, one to forbid the Supreme Court to declare an act of Congress unconstitutional, another to limit the tenure of judges, so that it should be a changing court, more responsive to the popular will, and so on.

And arising at the same time was the absurd argument that the power to be abated, this dictatorial judicial power, telling Congress what it could and could not do, was a nonexistent power- the argument, namely, that for the Supreme Court to invalidate an act of Congress by declaring it unconstitutional is in itself an unconstitutional act, because there is nothing in the Constitution about it; that John Marshall, the great Chief Justice of the United States, invented the power and put it over on the country; that in England such a thing never happens, and there a judge was hanged for declaring an act of Parliament to be void.

Those who take this position, if they take it sincerely, must be ignorant of what made the American system unique in the world, ignorant of the judicial function therein, and unable, besides, to distinguish in principle between parliamentary government as in England, and representative constitutional government in the American form. It is true John Marshall developed the judicial power, just as the early Presidents developed the executive power and the early senators and representatives developed the legislative power. But the judicial power does not veto or invalidate an act of Congress. It never did. Only the Constitution does that.

What was it the Supreme Court did?

In the first place, it did nothing on its own initiative; it never does. Two disputants came before it. One was the government in its executive aspect. The other was a poultry dealer in Brooklyn. This poultry dealer had refused to obey certain NRA laws laid upon him by the national government - laws saying in what manner the buyer of a live chicken should abstract the chicken from the dealer's coop and another saying what wages should be paid in the chicken yard, and how many persons should work there, and what should be the length of their working day.

The reason the poultry dealer gave for disobeying these laws was that he believed the national government had no right to regulate his business, since it was a local business in Brooklyn, and not in any sense interstate commerce, such as the nation government may and does regulate by permission of the Constitution. For his disobedience the national government, acting through the enforcement bureau of NRA, hale the poultry dealer to court, and from the decision of the inferior court of the first instance there was an appeal to the United States Supreme Court, whose decisions are final.

Observe what is taking place.

Who are these two that appear before the Supreme Court? One is the Brooklyn poultry dealer, as a corporate person. But who is the other? Who is appearing against the poultry dealer? For convenience, we say the government. That is not so. The government consists of three powers - namely, the legislative power vested in Congress, the executive power vested in the President, and the judicial power vested in the Supreme Court, all coexisting and limiting one another. This trinity of powers does not appear against the poultry dealer; therefore, it is not the government. It is the executive power that appears against him; the poultry dealer is appealing from the executive power to the judicial power, saying his individual rights and immunities have been invaded in an unconstitutional manner by the executive power. (pp. 8-9)

This truth the Congress forgot, or disregarded, when it passed the NRA. It surrendered its own lawmaking power to the executive power. The Constitution does not permit it to do that. And that is what the Supreme Court said. (pg. 74)

Comments: The case in question here was the case of A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495. The court said:

"[2] Second. The question of the Delegation of Legislative Power.-- We recently had occasion to review the pertinent decisions and the general principles which govern the determination of this question. The Constitution provides that 'All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' Article 1, § 1. And the Congress is authorized 'To make all Laws which shall be necessary and proper for carrying into Execution" its general powers. Article 1, § 8, par. 18. The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which is thus vested."

This is pretty basic stuff as far as the Constitution is concerned. The justices in this case were merely upholding their duty pursuant to their oaths of office to support the Constitution. FDR using the Dred Scott decision of 1857 to try and make a comparison to the Schechter Poultry chicken coop case reveals his anger. The Dred Scott case declared the Missouri Compromise unconstitutional. This meant that Congress could not prohibit slavery in the territories before they became new states. The Court back then said that Congress had no power to enter into all the states and territories and govern at their own pleasure, thus creating an empire. They had no more authority to prohibit slavery in a territory than they did to introduce it. Again, pretty simple stuff. The Constitution, as written in 1857, gave no legal means of emancipation to slaves. Chief Justice Taney said that "If any of its provisions are deemed unjust, there is a mode proscribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was at the time of its adoption." The Dred Scott case, by the way, is the only case I've studied in the Supreme Court Reporters where all nine justices wrote separate opinions. The very beginning of the case says "Declaration of Independence does not include slaves as part of the people." You see, slaves have no inalienable rights that government is bound to respect. Slaves only have the political privileges the laws grant them. Justice Campbell, in his concurring opinion, stated: "The first territorial government in Louisiana was an imperial one, founded upon a French or Spanish model. For a time the Governor, judges, legislative council, marshal, secretary, and officers of the militia, were appointed by the President." Would not FDR have loved to have had this kind of power? In a footnote Justice Campbell made some quotes from the Annals of Congress, 1803-4. One quote by Mr. Macon said: "My first objection to the principle contained in this section is that it establishes a species of government unknown to the United States." Mr. Boyle stated: "Were the President an angel instead of a man, I would not clothe him with this power." Studying the Dred Scott case also drew my attention to the importance of Article IV, Section 3 of the Constitution, which states:

New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

This provision was unanimously adopted at the Constitutional Convention of 1787 without debate. It was another safeguard to stop the Federal Government from legislating in the states and governing over them as if country were an empire. FDR and his associates wanted unlimited power, and they were determined to destroy all opposition to their will. We shall see that the attack upon the Supreme Court that followed had its desired effect. Alexander Hamilton, in his arguments on the judiciary found in The Federalist #78 stated:

"This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power, that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from the quarter: I mean, so long as the judiciary remains truly distinct from both the legislative and executive. For I agree that "there is no liberty if the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty can have nothing to fear from its union from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such an union must ensue from a dependence of the former on the latter, not withstanding a nominal and apparent separation; that as from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed or influenced by its coordinate branches; and that as nothing can contribute so much to its firmness and independence, as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution and in a great measurers the citadel of the public justice and public security.The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to legislative authority; such for instance as that it shall pass no bills to attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."

Here we can see that it wasn't John Marshall who invented the idea that the Supreme Court could declare an act of Congress unconstitutional. This was part of the original intent of the people who framed the Constitution in 1787.

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