American Law - Public Law

AMERICAN LAW - PUBLIC LAW The public law of the United States largely revolves around (I) the Federal system; (2) the written Constitution; and (3 ) the judicial construction of written Constitutions. These three elements are closely related, for the United States Supreme Court has from an early day been the final arbiter to determine the re spective powers of the United States and of the States under the written Constitution of the nation; and the State courts (each within its own territory) are the final arbiters of State govern mental power under the written Constitutions of the States.

The Federal System.

Plansof colonial federation were sev eral times proposed before the period of the American Revolution. The movement that finally led to independence forced some de gree of unity, and the first Continental Congress assembled in Philadelphia in 1774 was the outward symbol of unity of political action. What political direction there was of the revolutionary movement came through the continuance of such an organization, without any formal written instrument of union, and this system was highly inefficient. It was replaced by the Articles of Confed eration in 1781.

The Articles of Confederation established a loose union, with little in the way of a national Government, and with no power in that Government to raise revenue or to enforce its orders by action directed immediately to the citizens of the United States. The Confederation had authority to ask the States to act, but not to compel action either by the State or its citizens. It had power to make treaties but no power to enforce State observance of such treaties. Each State had power to impose restrictions upon trade with other States, and a State with the geographical advantages of New York was in a position to impose and did impose burden some restrictions upon the commerce of the neighbouring States of New Jersey and Connecticut.

Such conditions could not long continue. They led to the as sembling of the Federal Convention of 1787 and to the framing and adoption of the present Constitution of the United States, under which the present Government was instituted in 1789. The Constitution was framed with specific reference to the difficulties presenting themselves before its adoption. A governmental organ ization was set up independent of t,iat in the States, and with power to enforce its commands directly up the citizens of the States. Large powers were conferred, the most important of which were the powers to control interstate and foreign commerce, to levy taxes and to raise Federal revenues independently of the States, and the control of foreign relations. Thus a central Gov ernment was constituted with real authority. The history of the Federal system since 1789 is to a large extent a history of the expansion of the importance and authority of the national Govern ment under this Constitution. This expansion has been accom plished in several ways : (I) by a broadened construction of the original provisions of the Constitution of 1787 ; (2) by amendment of this Constitution; (3) by the development of means of trans portation and communication which enormously increase the num ber of transactions in interstate and foreign commerce, subject to national control; (4) by the increased number of States, the larger portion of which were created out of territory belonging to the national Government.

Construction of the National Constitution.

TheConsti tution of the United States has been authoritatively and finally construed by the United States Supreme Court, an organ of the national Government. In substantially all matters this court deter mines the limits of national power on the one hand and of State power on the other. No matter how impartial such a tribunal may have sought to be, it has almost of necessity tended to favour the Government of which it is an organ. Under the chief justice ship of John Marshall (1801-35) it was an essential factor in establishing broad national authority. McCulloch v. Maryland, 4 Wheat. 316 (1819) determined that the nation had not only the powers expressly conferred upon its legislative, executive and judicial departments, but also all authority "appropriate" to carry such powers into execution. The Constitution uses the words "necessary and proper," but the court held that there was no need to show actual necessity in order to uphold national power. Under the chief justiceship of Roger Brooke Taney (1836 64) there was an occasional tendency in dicta of the court to regard State power as of greater importance, but no actual reduc tion of national power took place. In fact two of the broadest extensions of national power were made under Taney through reversals of views taken under Marshall. In one of these cases admiralty jurisdiction was extended to all navigable waters (Gene see Chief v. Fitzburgh, 12 How. 443, 1851). In the other the Fed eral courts acquired an extensive jurisdiction in corporate matters (L.C. & C.R.R. Co. v. Letson, 2 How. 497, Although the powers of the national Government under the Constitution have been expanded, the Supreme Court has at the same time sought to prevent the destruction of State powers by construction. The power of the national Government to tax can not be used as a mere cloak for regulation of child labour in the States under the guise of taxation; nor can the power to regulate interstate commerce be used for such a purpose (Hammer v. Dagenhart, 247 U.S. 251, 1918; Child Labor Tax Cases, 259 U.S. 20, 1922). While the nation's powers have been extended, there remains a large sphere of State power upon which the nation may not encroach. No national power exists except as it is found in the terms of the written Constitution, and the United States Supreme Court can expand such powers only as they may be derived from the terms of the written Constitution. The terms of this document are broad and expansible, yet judicial construction of these terms has definite limits.

Amendment of the National Constitution.

But by con stitutional amendment the terms of the written Constitution may be changed. Twenty-one amendments to the Constitution of the United States have been adopted. The first 1 o of these amend ments are limitations upon the national Government, but in no material respect do they narrow the powers exercisable by that Government. The 11th amendment safeguards the States against suits ; the 12th, with reference to the election of the president, does not affect governmental power. The 13th affirmed the judgment of war that slavery should be abolished. As now construed by the courts, the "due process of law" and "equal protection of the laws" clauses of the 14th amendment have transferred the protection of individual rights from the States to the national Government. The 15th and 19th amendments, and to some extent the 14th, limit the determination by the State as to who shall have the right to vote. The 17th, by providing for the popular election of sen ators, somewhat diminishes the importance of the States as units in the Federal system. The 18th amendment, until repealed by the 21st, brought the Government into closer contact with the lives of citizens. The 16th gave the national Government a new source of revenue and made possible a system of subsidies through which the Government largely controls State policy as to matters not otherwise directly within Federal powers. The 2oth set the dates for presidential and congressional terms and made provisions for succession in case of death of the President-elect.

Increased Contacts of a National Character.

In1789 transactions in interstate commerce were few, and the means of conducting such commerce slow and cumbersome. As new agen cies of commerce have developed, the Federal regulatory power has applied to them. With the transition from the horse and the stage-coach to the steamboat, the railroad, the telegraph, the tele phone, the radio and the aeroplane, portions of the country once distant have been brought into closer relation, and the transactions controllable by the national Government have been infinitely multiplied. These changes have necessarily brought increased exercise of national power.

Federal regulation of interstate railroad rates and service came in 1887, and has rapidly expanded. The relations between interstate commerce and purely domestic commerce within a single State are necessarily close when both transactions are handled by the same agency. And so by legislation of 192o and by judicial decision, the Federal Government has come largely to control the railroad rates for domestic transportation within the States, as an incident to the control of interstate commerce (Railroad Commission of Wisconsin v. C.B. & Q.R.R., 257 U.S. 563, 1922). In the same manner the nation has come to control safety appliances of railroads in both interstate and domestic commerce (Southern Railway v. United States, 222 U.S. 20, 1911).

Congress began in 1890 the regulation of combinations in restraint of interstate commerce, and has in this field largely re placed State action. As an incident, the regulation of labour unions has largely been transferred to national jurisdiction by a recent decision of the United States Supreme Court (Bedford Cut Stone Co. v. Journeymen Stone Cutters' Association, 274 U.S. 73, 1927). By the expansion of the national banking system and the creation of the Federal Reserve system, the Federal Gov ernment largely controls the banking business of the country. There is now an extensive national control of industry, banking, labour, railroads and of the protection of individual rights.

These expansions of national authority are natural, and were to be expected. But they make the national system differ materially from any that could have been thought of in 1787.

Increased Number of States.

The national Government was created by a small number of States. The States were the creators of the nation. States as units in a Federal system were naturally more important when their number was 13 than when their num ber is 48. The influence of increased numbers becomes more important when we consider that 21 of these additional States were wholly created out of territory acquired by the nation and were never a part of the original States. These new States, f orm ing more than half of the continental area of the country, are in a very real sense creatures rather than creators of the national Government. With the increased importance of interstate re lations, State boundaries have largely become artificial lines, and national consciousness, greatly strengthened by the Civil War, has become politically dominant, since State elections in all but one State (Maine) are held upon the same day as national elections.

Yet, though the States have come to be less important politi cally as units in a Federal system and have lost all political status in international affairs, they have come, with increased corn plexity of social and economic needs, to have a heavier burden of governmental tasks than ever before. For upon them fall the burdens of administering criminal and civil justice in the daily affairs of life, and the tasks of more detailed regulation of indus try, as well as the conduct of schools, the administration of char ities and the protection of persons and property.

The Written Constitution.

The written Constitution is an essential element of the Federal system in the United States, for there must be some authoritative statement of the respective powers of nation and States. The written Constitution is not an essential device of State Government in the United States, but each State has from its beginning had such a Constitution. Tradi tion has now become so strong that a State without a written Con stitution is hardly to be contemplated.

The national Constitution is a relatively brief document, as are a few of the earlier State Constitutions. But the typical State Constitution has now come to be a lengthy document, that not only organizes and imposes limitations upon the State Government, but also contains a great mass of detailed legislation. This legisla tive detail is frequently altered by State constitutional amend ments. In theory the national Government has only such powers as are granted it by the national Constitution, and a State Govern ment has all powers not denied it by the national Constitution and the Constitution of the State. This might naturally imply a strict construction against national powers and a liberal construc tion in favour of State legislative authority. But with long and detailed State Constitutions, we have the opposite result. Under broad constitutional grants of national authority, the United States Supreme Court has, from the first, been liberal in the con struction of national power. Under detailed State Constitutions, hedging about the powers of State legislatures, the tendency of State courts has been toward a narrow construction of such powers.

Judicial Construction of Written Constitutions.—Some device is necessary in a Federal system to preserve the barriers between Federal and State powers. The United States Supreme Court serves as this agency. In addition it serves as the final agency in other cases for the determination of the powers of Congress under the Constitution ; and the highest court of each State serves as the agency to determine the powers of its State legislature under the written Constitution of that State. The courts of both State and nation decline to pass upon certain ques tions that they term political, but apart from this they construe the written Constitutions of State and nation. The power of the courts to determine the constitutionality of legislation was first asserted in New Jersey in 178o, and has been generally recognized since the decision of the United States Supreme Court in Mar bury v. Madison, 1 Cranch, 137 0803).

The more detailed the Constitutions and the greater the tend ency to exercise governmental power to meet new industrial and social needs, the more often are the courts called upon to construe written Constitutions. With numerous restrictions imposed on legislative action by constitutional texts, practically every im portant Federal and State legislative enactment now comes to the courts for the determination of its validity. This gives to judicial decisions an emphasis proportionately greater than they deserve in the constitutional system of the United States, for in most cases the courts reach results not dissimilar from those in the countries where legislative determinations are final. But in the United States the courts have the last word, and this of ten leads to an emphasis upon the technical issues of constitutional con struction, rather than upon the actual merits of legislation. Prob lems of constitutional construction have become increasingly important in the fields of (I) administrative law and (2) the administration of criminal law.

New economic and social problems have necessitated the dele gation of wide authority to permanent Federal and State boards for various purposes, such as sanitation, regulation of public serv ice corporations and of banking and insurance, workmen's com pensation, and the grant and revocation of licenses to practise trades and professions. National and State Constitutions organize Governments into three departments, and impliedly forbid the delegation of legislative authority. The courts must answer the questions as to what are the functions of each department, and what are legislative powers that may not be delegated. Under pressure of practical need, the courts have found it possible to sustain wide delegations of rule-making power to administrative bodies, and also wide authority in such bodies to make determina tions that may appear judicial in character. These results have been obtained through the construction of broad constitutional provisions, and have been wise ones, though the logical devices employed to distinguish later from earlier cases have often been amusing.

In the administration of criminal law the result has not been so satisfactory. Many constitutions contain detailed provisions re garding the grand jury, the jury, bail and the conduct of cases, and a number designate the precise words with which indictments shall terminate. These provisions promote technicality in judicial proceedings and retard progress, and although a number of Con stitutions are easy to change, others are difficult if not impossible to amend. The courts cannot ignore these constitutional provi sions, but must enforce them, though something is accomplished by liberal judicial construction. For example, the Constitution of Missouri requires that indictments conclude with the words "against the peace and dignity of the State." The Missouri Su preme Court at first said that the omission of the second "the" was fatal to an indictment, but later took the opposite view (State v. Campbell, 210 Mo. 202, 1908; State v. Adkins, 284 Mo. 68o, 1920). But however liberal the courts may be, simplification of criminal procedure is retarded by placing regulations as to such matters in the text of the State Constitution.

The problems faced by the courts in constitutional construction are well illustrated by the developments in administrative law and in the administration of criminal law. Constitutional provi sions creating three departments of Government and providing that each shall exercise separate powers are general and vague in character. A court may and does construe these provisions to permit what the present needs require, even though earlier deci sions may have taken a different view. The only harm done by such action, if it is a harm, is the occasional use of bad logic in the effort to harmonize judicial decisions that are obviously not cap able of reconciliation. The specific constitutional provisions as to criminal procedure do not give a court as great a latitude of con struction, though even where a Constitution requires certain pre cise language, the courts may permit some variation of that language.

Constitutional provisions vary from the specific to the highly indefinite, but in the construction of all, the courts have some discretion. The discretion is greatest under the 14th amendment to the Constitution of the United States, which prescribes that no State shall "deprive any person of life, liberty or property with out due process of law," and under similar clauses in State Constitutions. The United States Supreme Court has declined to define "due process of law," but reserves freedom of decision in each case. A minimum wage law for women deprives of due proc ess of law and is unconstitutional (Adkins v. Children's Hospital, 261 U.S. 525, 1923). Laws limiting the labour of women to eight hours a day or forbidding night labour by women do not deprive of due process of law (Miller V. Wilson, 236 U.S. 373, 1915; Radice v. New York, 264 U.S. 292, 1924). The regulation of charges for rental is due process of law if in the opinion of the court an emergency exists, but is not due process of law if the court feels that the emergency has ceased (Block v. Hirsch, 256 U.S. 136, 1921 ; Chastleton Corporation v. Sinclair, 264 U.S. 543, 1924) A similar discretion rests with the courts in the construction and application of other indefinite provisions of State and national Constitutions. And the courts exercise a broad discretion even with respect to the constitutional provisions that appear most definite.

In American constitutional law there is a tendency to decide the specific case before the court, without affording much guidance as to the law applicable to similar cases in the future. And the constitutional law of the United States is found not so much in the texts of written Constitutions as in the judicial decisions constru ing such Constitutions. A distinguished French publicist has called this system "government by the judges." Whatever justification this may have, Bishop Hoadly's statement that "whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all intents and purposes, and not the person who first spoke or wrote them," is peculiarly applicable to the constitutional law of State and nation in the United States. And constitutional law is the basis for the whole body of public law of State and nation.

See W. W. Willoughby, The Constitutional Law of the United States (2 vols., 1910) ; C. K. Burdick, The Law of the American Constitution (1922) ; C. Warren, The Supreme Court in United States History (3 vols., Boston, 1922) ; C. E. Martin, Introduction to the Study of the American Constitution (Los Angeles, 1925) ; Walter F. Dodd, State Government (new ed., 1928) . (W. F. D.)