THE SUPREME COURT AND THE CONSTITUTION

T

1919-1920

HE nature of a constitution, says Chief Justice Marshall, "requires that only its great outlines be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of those objects themselves." Certainly the Federal Constitution affords ample opportunity for deducing ingredients, major as well as minor. The general terms of the instrument merely point the way. They seldom ascend to particulars and describe in detail what can or can not be done. Thus it is that year by year the effective Constitution is being shaped or reshaped by the Supreme Court. The decisions may be grouped into two classes, though the line of division is far from sharp. Some cases project the great outlines of the written Constitution. They raise issues so broad that their settlement establishes a principle. Others call only for the application of well-established principles to some more or less novel state of facts. Here the court makes no new inquiry into the meaning of the Constitution. What is called for is rather the appraisal of the situation to which the Constitution is to be applied.

This latter group embraces the great majority of the cases which now come before the Supreme Court. During the October, 1919, term of court, which ended in June, 1920, fourteen cases were decided under the obligation-of-contracts clause, not one of which involved any important issue of constitutional principle. Most were concerned with the proper construction of the contract relied on, in order to discover whether the unwelcome legislation did in fact impair it. Of some twenty-five cases on the jurisdiction and procedure of courts, only five raised an issue important enough to be called one of principle, None of the five cases on eminent

anything more than minor detai!of the nineteen cases on police anything of the dignity of a

concerned with

six or seven

to establish

hand a

majority of the cases on taxation, on the immunities of persons charged with crime and on the division of functions between the states and the nation, involve questions of constitutional principle. They mark the "great outlines", as distinguished from the "minor ingredients", of that part of our Constitution that is made by the Supreme Court.

The line of division thus indicated is plainly influenced by legislation growing directly or indirectly out of the war. The Espionage Act brought to the fore the issue of freedom of speech. The need for increased revenue prompted the legislation which raised important constitutional issues of the limits. of the taxing power. The war contributed also to the disputes on the power to amend the Constitution and on federal control of the liquor traffic. The major constitutional issues of any year depend upon the legislative activities of that year and the few years previous. It is not to be assumed, therefore, that the same constitutional issues which have enjoyed the limelight during the past year will occupy the center of the stage in years to come. Each decade has its peculiar constitutional problems to solve. The marking of "great outlines" in one generation settles issues which leave only the deduction of minor ingredients for the generations which succeed. Thus far, however, there have always been new outlines to be drawn, new fields to explore. A considerable number of the constitutional questions considered during the past year are distinctly novel. Such questions and the answers given to them dictate the major interest of this review of the work of the Supreme Court for the October term of 1919.

The Federal Constitution may be divided into two parts, which Professor Burgess has called, respectively, the constitution of government and the constitution of liberty. The constitution of government outlines the scope of national powers, apportions those powers among the three departments of the national government and provides that the powers not granted to the nation are reserved to the states or to the people thereof. The cases interpreting the constitution of government tell us what is within the field of national authority and point out the re

413 national power. The constitution of liberty marks those limitations on governmental action which are prompted by the desire to leave the individual free from other interference than that imposed by the common law. Some of these limitations apply only to the government of the United States, some only to those of the states, some to both. These divisions and subdivisions of our Federal Constitution suggest the classification which follows.

I. THE STATES AND THE NATION

A. The Scope of National Authority

The most fundamental though not the most difficult of the questions with which the Supreme Court had to deal during the past term was whether there was an Eighteenth Amendment to the Federal Constitution. The validity of what purported to be such an amendment was challenged on the grounds that it had not been formally proposed and ratified and that the substance of its provisions was not within the scope of the amending power. The two main specifications of this latter charge were that the amendment was mere legislation which could not be enacted by the amending power and that it deprived the states. of their police powers secured by the Tenth Amendment and thereby altered the Constitution so fundamentally as to be not an "amendment" but a first step towards destruction. It was also urged that the new matter thus sought to be introduced. into the Constitution was a mere "addition" and not an "amendment", because it was not germane to anything in the original Constitution, In dealing with these complaints against the content of the amendment, the opinion of the court in Rhode Island v. Palmer' contented itself with affirming its conclusion to the contrary, without stating its reasons. An equally summary dismissal was given to the objection that, since the Constitution empowers Congress to propose amendments "whenever two-thirds of both Houses shall deem it necessary", the amendment was invalid for want of explicit statement in the enacting clause that it was deemed necessary

1252 U. S. -, 40 Sup. Ct. 486.

by those who voted for it in Congress. The opinion also affirmed that the two-thirds vote in each house was satisfied by two-thirds of a quorum and did not require two-thirds of the entire membership. This was supported by an earlier decision' approving the same mathematics for the passage of a bill over the president's veto.

Mr. Justice Van Devanter asserted also that the ratification by state legislatures was final and not subject to a referendum under state constitutions. This was based on Hawke v. Smith,* decided a week earlier. In this case it was held that the Federal Constitution, when it said state legislature, meant state legislature and not state legislative power. The power to ratify a proposed amendment "has its source in the federal Constitution" and "the choice of means of ratification was wisely withheld from conflicting action in the several states." Such ratification by a state legislature is not an act of legislation but the expression of the assent of the state to a proposed amendment. The inference from these declarations is that the state legislature in ratifying amendments acts as a federal and not a state agency and is therefore not subject to any state dictation. This inference justifies the reported opinion of the Assistant Attorney General that a state legislature is not precluded from acting on an amendment by reason of a provision in the state constitution that a state election must intervene between the

1 Missouri Pacific Ry. Co. v. Kansas (1919) 248 U. S. 276. In this case the Chief Justice had supported his contention by reference to the fact that the early amendments had been proposed by a vote of less than two-thirds of the entire membership of both houses, thus showing that the members of the first Congress, many of whom had been members of the Federal Convention or of state ratifying conventions, regarded a vote of two-thirds of a quorum as sufficient.

1252 U. S. —, 40 Sup. Ct. 495. Some have assumed from this decision that we must have an amendment to the Federal Constitution in order to give states the power to apply their referendum provisions to the ratification of future amendments. The same end may be gained in another way. Congress may now submit amendments to conventions in the states. If the members of these conventions are chosen on a general state-wide ticket, a ticket of candidates pledged to vote "yes" can be put up against one pledged to vote "no". It would seem that Congress has the power to require elections to the state conventions to be by general, state-wide ticket. If Congress should not specify, the matter would necessarily have to be de

proposal of an amendment by Congress and its consideration by the state legislature.

Having sustained the validity of the Eighteenth Amendment, the court was then called upon to consider what it meant by vesting in "Congress and the several states . . . concurrent power to enforce " it "by appropriate legislation." Mr. Justice McKenna insisted that "concurrent power" could be exercised only by united action and not by separate and independent action. This would mean that congressional legislation which depended on the amendment for its validity must be concurred in by a state before being enforcible there. But Mr. Justice McKenna was alone in this conviction. Mr. Justice McReynolds declined to express himself on the point. The Chief Justice conceded that the words of the clause naturally conveyed the meaning that Mr. Justice McKenna put upon them but insisted that such an interpretation must be rejected because it would frustrate the declared purpose of the amendment. The opinion of the court, by Mr. Justice Van Devanter, affirmed that "concurrent power" does not mean joint power and that congressional legislation "is in no wise dependent on or affected by action or inaction on the part of the several states or any of them." So the Volstead Act was sustained with its limit of one half of one per cent of alcohol. It was recognized that "there are limits beyond which Congress cannot go in treating beverages as within its power of enforcement", but what had been held proper in the War Prohibition Act was thought proper under the power conferred by the amendment. The

A difference between the state police power and the national war power, on the one hand, and the power conferred by the Eighteenth Amendment on the other, was not considered in the opinion of the court. In Purity Extract Co. v. Lynch (1912), 226 U. S. 192, a state was allowed to forbid the sale of non-intoxicating malt liquors against the complaint that this denied due process of law. As the state possessed general, undefined reserved police power, the only question was whether property and liberty were unjustifiably interfered with. In the war prohibition cases, considered infra, page 418, the war powers of Congress were also declared to be general powers. But the prohibitory clause of the first section of the Eighteenth Amendment is confined to "intoxicating liquors . . . for beverage purposes." If the power of enforcement conferred by the second section is construed to authorize the prohibition of non-intoxicating liquors or of any liquors for other then beverage purposes, the effect is to delete from the first section the words "intoxicating" and "for