We Are Dealing With the Source of Justice

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Josiah W. Bailey
U. S. Senator, North Carolina [D]
In the Senate of the United States, July 12, 1937

Publishing Information

Mr. President, in the matter of the proposed legislation we are concerned with the highest aspects of our Government. We are dealing with one of the three branches of the structure of our Republic among which all its powers and functions are distributed. We are dealing with the judicial branch. We are dealing with the source of justice to the individual and in the national life. We are dealing with the means of determining the meaning of the Constitution which is a covenant made, not by the Congress, but by the people, the bond of the Union, the source of the national existence.
We are dealing with the powers of the Congress, with the powers of the States, with the rights of the people, and we are dealing with the indispensable means of the maintenance of those rights. We are dealing with the meaning of due process of law that underlies the liberties of man. We are dealing with the taxing power which is the power to destroy. We are dealing with the significance of the general-welfare clause. ln dealing with this legislation, my fellow Senators, we are dealing with the soul of the American Republic.
We are dealing with an institution, the judicial system, at the head of which stands the Supreme Court of the United States. We are dealing with the only means of justice to a great and numerous people whose greatest interest is justice; and justice, we must bear in mind, is the highest function of government and the most essential to the existence of government.
We are dealing with the institution which has been now, for nearly a century and a half, the pride and glory of America, which has served throughout 15 decades with marked acceptation, which has commanded the respect and confidence of all good citizens here, and has won the admiration of the enlightened in all the nations of the earth as a special contribution to the victorious progress of mankind.
We are dealing with that branch of our Government which is most helpless, which is indeed utterly helpless, the relation of which to the national life is at once of the utmost importance and the utmost delicacy. It is ours to destroy if we will. It is ours to preserve if we will. We will either exalt it now or we will bring it low.
I have just said that the 'judicial branch of the Government is utterly helpless. The President has power, great power, and the present President has greater power than any of his predecessors. Congress still has great power. But our courts have no power other than the power of justice and a great people's confidence. Our courts cannot even defend themselves.
They cannot even speak for themselves. They have no means to repel attack. I know of no better statement on this subject than that of the Court itself in the notable case of United States v. Lee (106 U. S. 196):
"While by the Constitution the judicial department is recognized as one of the three great branches among which all the powers and functions of the Government are distributed, it is inherently the weakest of them all. Dependent as its courts are for the enforcement of their judgments upon officers appointed by the Executive and removable at his pleasure, with no patronage and no control of the purse or the sword, their power and influence rests solely upon the public sense of the necessity for the existence of a tribunal to which all may appeal for the assertion and protection of rights guaranteed by the Constitution and by the laws of the land, and on the confidence reposed in the soundness of their decisions and the purity of their motives. From such a tribunal no well-founded fear can be entertained of injustice to the Government or of a purpose to obstruct or diminish its just authority."
These considerations have been submitted at the beginning because they have moved me to say that never before has the Congress had to deal so seriously with matters of such high import and such grave consequences; and if ever we are to summon power from unseen sources to rise to our best, to bring out the noblest within ourselves, now is the occasion. If there are times when men rise above themselves, surely this occasion must be one of them. In dealing with a matter so high we must reject low impulses, bitter feelings, harsh judgments, ordinary considerations, selfish motives. We must spurn appeals to prejudice. We must rise to the heights upon which justice dwells. And in dealing with our own power, its source and extent, we must be faithful in our trust and not abuse it.
Mr. President, I am now going to take up my argument by way of a number of contentions which I shall undertake to support by facts and by reason.
We contend, first, that the purpose and effect of the proposed legislation is to affirm and exert the powers of the legislative and executive branches of the Government of our Republic to control the judicial branch with the view to shaping judicial determination.
That is the contention. I intend to argue it on the facts. I leave the determination to you. Is it true or is it not? In the first place, is it denied? I have heard in the debate here—a sort of half-and-half denial; sometimes a little talk about aged Justices, but always winding up with criticism of the Court; sometimes a little talk about men needing assistance, but always by way of intimating that we need to validate legislation.
I know how the legislation started. You do also. The President's message put the legislation on the basis of congested dockets and aged Justices. Could he maintain it—even the President—could he maintain his proposition? He did not. To be sure, he would have maintained it if he could have done so; but in that very message he said that if you will follow the outlines and carry out the purposes of this bill, you will make it unnecessary to amend the Constitution. Here are the words:
"If these measures [recommended] achieve their aim—"
That is the aim. If a bullet placed in a rifle strikes the bull's-eye, "we may be relieved of the necessity of considering any fundamental changes in the powers of the courts or the Constitution." So that was the aim—to be relieved of the necessity of considering any changes in the fundamental power of either Court or Constitution.
But, of course, that is not by any means the whole story. We are all familiar with the evidence. I do not have to refer to the documents. We know that the President was misled by someone—we do not know by whom, and we do not criticize him on that account—when he was informed that the Court was behind in its work and in need of assistance. But all that was refuted at once by the report of the Attorney General of the United States filed just a year ago. The Court was current with its work. The Court was up with its work.
In his message of February 5 the President stated his aim. In his message of January 6 he made the suggestion of accommodating the Court to what he conceived to be the needs of the time. Agree that he may have been right, that there were different needs. I am not driving at that. I am saying that the purpose of the bill was to accommodate the Court to the President's conceptions and purposes.
Then on March 4 came the Victory Dinner speech, which I have here. I should like to go through just a little of the speech, printed in the Congressional Record of March 5. The President, speaking to his party in behalf of this legislation, used these words:
"For as yet there is no definite assurance that the three horse team of the American system of Government will pull together."
Senators, get the picture. The Court has to pull his way and the way of Congress. That's the idea. When before did courts get to pulling? Courts find the truth. Courts declare the law. Nobody rides in a buggy behind the court. The Courts are not hitched up. Courts heretofore have been free and independent. Here is a three-horse team with the Court all hitched up, but the Court is not pulling.
"If three well-matched horses are put to the task of plowing up a field where the going is heavy, and the team of three pull as one, the field will be plowed."
I think that is true.
"If one horse lies down in the traces or plunges off in another direction, the field will not be plowed."
That is also true. But here is another thing: The Supreme Court is a court. It is not anything like a horse. There is no analogy between a court and a horse. It is an illustration which does not illustrate the case, but it illustrates the conception here. The conception here is that we ought to have a Court that will construe the Constitution and pull the way the other two horses are pulling. You can call the Congress a horse if you want to, and you can call the Executive a horse if you want to. Now, the Court has to pull the way they want it to pull and if you want power, they have to give us the power. Remember to what all this is addressed; it is addressed to the proof of my statement that the purpose of this legislation is to control and direct the judiciary of the United States.
I could read on:
"But I defy anyone to read the opinions concerning A. A. A., the Railroad Retirement Act, the National Recovery Act, the Guffey Coal Act, and the New York minimum wage law, and tell us exactly what, if anything, we can do for the industrial worker in this session of Congress with any reasonable certainty that what we do will not be nullified as unconstitutional."
What is the idea? He wants a Court that will make legislation to be proposed by him constitutional. I am not saying that is wrong. I will come to that. I am saying that that discloses the purpose of the proposed legislation. It is a purpose to effect judicial determination, and I am saying that the Congress has the power to do that.
I quote further from the President's address:
"As Chief Executive and as head of the Democratic Party, I am unwilling to take those risks—to the country and to the party—of postponing one moment beyond absolute necessity the time when we can free from legal doubt those policies which offer a progressive solution of our problems."
That is the idea. He wants a Court that will "free from legal doubt" the policies which he espouses. Grant that the policies are good, grant that they ought to be enacted into law, grant that they ought to be constitutional, I deny the power of Congress or the President to create—I deny the righteousness of the effort to create—additional judges or change the judicial system in order to free prospective legislation from "legal doubt." If there is a legal doubt under the Constitution there is a way by which to resolve it, and that is by "a clarifying amendment" duly submitted to the people from whom the powers of the Congress and the President come, and without whose consent they cannot get additional power. This was the promise in our platform.
Mr. President, I could go on at great length along this line. I have before me the other speech delivered by the President over the radio in which there is great complaint about judicial opinions, but I do not think I have to go into that. We are all perfectly familiar with it. The whole complaint was not of the Court being behind in its work, not of the docket of the Court being congested, not of the judges being old; oh, no; all through that address to the American people was the complaint about judicial decisions and a desire for a different character of judicial decisions.
Is that all? Mr. President, the Attorney General went first to the radio and then came before the Committee on the Judiciary. He did not hesitate to argue that the justification of the bill was the necessity for a new type of mind on the Supreme Court of the United States. He did not like the opinions of the Court, and therefore, he would change the Justices. That is what he says of the bill. And the Assistant Attorney General, Mr. Jackson—and I call him by name because there are several assistants—came before the committee and argued that because Congress was responsible for the organization and the maintenance of the judiciary, it was also responsible for its judicial determination. A monstrous proposition! So that is in the record, too.
Yet I have one piece of conclusive—and overwhelming evidence. I think what I have stated is sufficient, but I have been astonished, Mr. President, that the President and some Senators have argued that the Democratic platform demanded a change in the Court in order to change its decisions. That is their interpretation of the platform. When we said the platform called for a constitutional amendment, they said, "Oh no; the platform says that if we cannot get the legislation we desire validated as constitutional by legislative act, then we will submit an amendment." They wanted a legislative act to amend and change the character and constitution of the Court. That is their position with respect to the Democratic platform. That is what they say it means.
So I have proved my case, and all I would have to do before a jury of the proponents of this bill to prove that its purpose is to shape the Court in order to determine judicial decisions would be to read the platform, and let them interpret it according to the interpretation which they have given here.
Furthermore to enact legislation having for its purpose the control of the judicial branch, with the objective of shaping judicial determinations, sets a precedent the consequences of which are plain and inevitable. Now, let us see about that. Among these consequences are, first the destruction of the Constitution as an instrument on which the humblest individual may rely, to which one may go for refuge against all powers, including the powers of majorities, the powers of the Government itself.
I know of cases, I like to think of cases, illustrating what I have just said. Probably there may be people in the South who will not quite like the case I am about to mention, but I like it—that of the Negro boy tried down in Scottsboro, tried for the most offensive crime known to our people, without a friend on earth, and with much of evidence to convict him. The mighty power of a State tried him, and sentenced that his life be taken; but that humble Negro boy, with only the Constitution of the United States to defend him, finds his way to the Supreme Court, still independent, and the Supreme Court says to the great State of Alabama, "You did not try him according to due process of law. You must try him again. You cannot take his life." He is living now, and being tried again. Perhaps he is guilty. I do not know. Thank God, innocent or guilty, there is due process of law in this country at this time! I am saying that the moment political power lays its hands upon the courts and the Constitution, due process of law will be in jeopardy.
After that Civil War, when men's minds were inflamed, and hate rather than reason ruled, a Civil Rights Act was passed, aimed at the States of Senators who sit all about me. The verdict of history now is that that Civil Rights Act would have destroyed the South, that Sherman's army and his march to the sea would have been a summer breeze compared with the overturning of our civilization, the destruction of all its standards and traditions, the social equality of the Negro and his dominance in a thousand counties. We were helpless. The bayoneted soldiers of the Federal government were there to put the Negroes in power, and give them their so-called rights under that Civil Rights Act.
There was despair in the South. We did not dream of giving up at Gettysburg. We could retreat like men. We did not despair at Appomattox. We could rebuild a civilization; and we did. But when we saw the Federal Government, inspired, as we now think by hate and prejudice and ignorance undertake to impose on us that humiliation, that disgrace, that ruin, that woe, our despair was overwhelming. But here was the Court; here was the Constitution. We were back in the Union, and the Court said that the Constitution was ours, and that the Congress had no power to determine the civil rights of our citizens, that that was a power in the States. And that ended the night. Today the South is what it is because of the Constitution and an independent court.
Suppose Congress had had charge of the courts then; suppose they had succeeded in adding six Justices or three Justices to determine that their acts were valid. I am saying to the Senate the South would have been a land of the abomination of desolation to this day. Thank God there was a Supreme Court. Thank God it was free. Thank God there was a Constitution. Thank God the truth of it could be declared.
Mr. President, there are other cases; there are a thousand. There were the Catholic Sisters in Oregon, when the State by a majority undertook to say that a Catholic could not send his children to a Catholic school, that the father who was faithful to his church and the mother who felt that her allegiance to her Redeemer was the greatest allegiance of all, could not control the education of their children. They came across the continent to the Supreme Court, and the Supreme Court said to the great people of Oregon:
"There is a Constitution. There are human rights. The father and the mother do control the child, and if they wish to send him to a Christian school conducted by their church, they may do it, the State to the contrary notwithstanding."
Now, cut your Court to suit your convenience. Put up a Court according to the will of the people of Oregon if you want to; have a referendum on the judiciary; throw it into politics; then what will become of your Christian education? What becomes of the relation of a father to his child and his church? I say this to Baptists and Methodists and Presbyterians and Lutherans and all others.
Mr. President, there is one race which has always and everywhere been persecuted. Its story is a story of courage and persistence the like of which the human race has never seen. That persecution has never yet ceased. That race has been driven by nation after nation into the ghetto; then following that has come the pogrom; then the dispersal, over and over again, generation upon generation. In the Holy Land, in Asia, in Italy, in Spain, in France, in Russia, even in England. In Germany today the Jew has no rights. He is driven from the home for which he toiled a lifetime. His property is taken away from him. His citizenship is gone. Even the names of the Jewish soldiers who died in the battles for Germany have been erased from the monuments of the brave. In America, so long as there is a Constitution such as we have, and a Court that is independent, there will be no dispersal; there will be no persecution. There will be equality; and, by the Eternal, strike them down and you will give neither Jew nor gentile, Greek nor barbarian, hope in this land or any other.
I revert, Mr. President, to my original thought. The Negroes in the South feel secure tonight because they know there is a Constitution and an independent Court. The religious peoples of this land feel secure tonight because they know there is a Constitution and an independent Court. The Jews in America feel secure tonight because they know there is a Constitution and an independent Court to guard it. Strike down the Court, and you will see this civilization of ours shaken to its foundation. Then the night of fear will justly fall upon us.
The second consequence would be to extinguish the constitutional limitations upon the powers of Congress and the President by means of legislation. I want the Senate to get that point. If this legislation, having the avowed purpose which I have shown, should be passed, the consequence would be to extinguish the constitutional limitations upon the powers of Congress and President by legislation.