EDITOR’S NOTE: It is the thesis of Raoul Berger’sย monumentally argued book, Government by Judiciary, that the United States Supreme Court – largely through abuses of the Fourteenth Amendment to the Constitution – has embarked on โa continuing revision of the Constitution, under the guise of interpretation.โ
Consequently, the Court has subverted Americaโs democratic institutions and wreaked havoc upon Americansโ social and political lives. One of the first constitutional scholars to question the rise of judicial activism in modern times, Berger points out that โthe Supreme Court is not empowered to rewrite the Constitution, that in its transformation of the Fourteenth Amendment it has demonstrably done so. Thereby the Justices, who are virtually unaccountable, irremovable, and irreversible, have taken over from the people control of their own destiny, an awesome exercise of power.โ
The following text is excerpted from Part II of the book.
Where early claims to extraconstitutional power were made in the name of โnatural law,โ the present fashion is to invoke the โliving Constitutionโ when it is sought to engraft or amputate a limb.ย Commentators at a loss to justify judicial arrogations fall back on Marshallโs sonorous reference to a โconstitution intended to endure for ages to come.โย In an oft-quoted apostrophe, Justice Frankfurter declared that it โexpressed the core of [Marshallโs] constitutional philosophy . . . the single most important utterance in the literature of constitutional law.โย ย It has become a mythic incantation.ย Chief Justice Hughes, when confrontedย by the โmortgage moratoriumโ-โimpairment of contractโ problem, declared:
If by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time would have placed upon them,ย the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered a memorable warningโ โWe must never forget that it is aย Constitutionย we are expounding . . . a constitution intended to endure for ages to come, and consequently to be adapted to the variousย crisesย of human affairs.โ
At best Marshallโs dictum represents a self-serving claim of power to amend the Constitution. In Justice Blackโs words, โin recalling that it is a Constitution โintended to endure for ages to come,โ we also remember that the Founders wisely provided for the means of that endurance: changes in the Constitution are to be proposed by Congress or conventions and ratified by the States.โย Claims to the contrary need to be measured by Lord Chief Justice Denmanโs observation that โThe practice of a ruling power in the State is but a feeble proof of its legality.โย Such judicial claims stand no better than the bootstrap โprecedentsโ created by a number of presidents for reallocation to themselves of the warmaking power confided to Congress, in justification of single-handedย commitments of the nation to war, as in Vietnam.ย But the fact is, as I shall show, that Marshallโs words have been removed from context, that he flatly repudiated the revisory power Hughes attributed to him, and that other Marshall utterances also show that the conventional view ofย MโCullochย does not represent the โcore of his constitutional philosophy.โ
Marshallโs dictum was uttered inย MโCulloch v. Maryland;ย the issue was whether the Constitution empowered Congress to establish the Bank of the United States, and that turned on whether a bank was a properย meansย for execution of other expressly granted powers. Marshall reasoned that a government โintrusted with such ample powersโ as โthe great powers, to lay and collect taxes; to borrow money; to regulate commerce,โ
must also be intrusted withย ample meansย for their execution. The power being given, it is in the interest of the nation to facilitate its execution . . . This could not be done, by confining theย choice of meansย to such narrow limits as not to leave it in the power of congress to adopt any which might be appropriate . . . To have prescribed the means by which government should, in all future time execute its powers, would have been . . . [to give the Constitution] the properties of a legal code.
Manifestly, this was merely a plea for some freedom in the โchoice of meansโ to execute an existing power, not for license to create a fresh power at each new crisis. Marshall himself flatly denied such license-claims in a pseudonymous debate with Judges Spencer Roane and William Brockenbrough of Virginia.
MโCullochย immediately had come under attack. To Madison the Courtโs ruling seemed
to break down the landmarks intended by a specification of the powers of Congress, and to substitute, for a definite connection between means and ends, a legislative discretion as to the former, to which no practical limits can be assigned . . . [A] regular mode of making proper alteration has been providently provided in the Constitution itself. It is anxiously to be wished . . . that no innovationย may take place in other modes, one of which would be a constructive assumption of powers never meant to be granted.
Thus, the chief architect of the Constitution rejected the replacement of the amendment process by judicial revision as an โassumption of powers never meant to be granted.โ Even more severe strictures were published by Roane and Brockenbrough. Marshall leapt to the defense under a pseudonym; speaking to the โintended to endure for agesโ phrase, he said:
it does not contain the most distant allusion toย any extension by construction of the powersย of congress. Its sole object is to remind us that a constitution cannot possibly enumerateย the meansย by which the powers of government are to be carried into execution.
Again and again he repudiated any intention to lay the predicate for such โextension by construction.โ There is โnot a syllable uttered by the courtโ that โapplies to an enlargement of the powers of congress.โย He rejected any imputation that โthose powers ought to be enlarged by construction or otherwise.โย He emphasized that โin all the reasoning on the word โnecessaryโ the court does not, in a single instance, claim the aid of a โlatitudinousโ or โliberalโ construction.โย ย He branded as a โpalpable misrepresentationโ attribution to the Court of the view of the โnecessary and proper clauseโ โas augmenting those powers, and as one which is to be construed โlatitudinouslyโ or even โliberally.โ โย โIt is not pretended,โ he said of the โchoice of means,โ โthat this right of selection may be fraudulently used to the destruction of the fair landmarks [Madisonโs term] of the constitution.โย ย Finally, the exercise of the judicial power to decide all questions โarising under the constitution and lawsโ of the United States โย cannot be the assertion of a right to change that instrument.ย โย Slender as was the justification for invocation of Marshallโs dictum prior to Gerald Guntherโs discovery of Marshallโs Defense, it has been shattered altogether by Marshallโs categorical disclaimer of judicial โright to change that instrument.โ
Before leavingย MโCulloch,ย account should be taken of a proposal in the Federal Convention to authorize Congress โto grant charters of incorporation.โ Rufus King pointed out that it โwill be referred to the establishment of a Bank, which has been a subject of contentionโ in Philadelphia and New York. Modified to apply only to canals, it was voted down 8 to 3.ย Louis Pollak points out that โThis legislative history was known at the timeย MโCulloch v. Marylandย was decided, for Jefferson had utilized it in his 1791 memorandum to Washington opposing the Bank Bill.โย As a successor to Jefferson as Secretary of State, Marshall had more reason than most to know. His omission to notice it is the more puzzling in light of his allusion to the heated debate on the subject in 1789.ย For the moment discussion of a possible clash between word and deed may be deferred to examination of other Marshall opinionsโstrangely never mentioned in the โliving Constitutionโ incantationsโwhich adhere to the โconstitutional philosophyโ he proclaimed in the Roane-Brockenbrough debates.
Inย Ogden v. Saunders, Marshall stated that the words of the Constitution are not to be โextended to objects not . . . contemplated by its framers.โย ย Inย Gibbons v. Ogdenย he stated that if a word was understood in a certain sense โwhen the Constitution was framed . . . [T]he convention must have used it in that sense,โ and it is that sense that is to beย given judicial effect.ย Inย Osborn v. Bank of the United States, he stated: โJudicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislatureโย ย โthat is, of the โoriginal intention.โ
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Inย Providence Bank v. Billings, he stated: โThe constitution . . . was not intended to furnish the corrective for every abuse of power which may be committed by the State governments. The interest, wisdom, and justice of the representative body and its relation with its constituents furnish the only security . . . against unwise legislation generally,โ echoing Gerryโs rejection of judicial โguardians.โย ย These statements are irreconcilable with the interpretation Hughes put on theMโCullochย dictum. Their significance was summed up by Marshallโs associate, Justice Henry Baldwin, who, after noting Marshallโs โa constitution we are expounding,โ went on to say, โno commentator ever followed the text more faithfully, or ever made a commentary more accordant with its strict intention and language.โ
The evidence, I submit, calls for an end to the incantatory reliance on Marshallโs โa Constitution . . . to be adapted to the various crises of human affairs.โ If the Constitution is to be altered by judicial fiat, let it not be under seal of a reading Marshall himself repudiated.