Frontiers of the Constitution

GOVERNMENT BY LAWS AND NOT BY MEN

By OSCAR L. YOUNG, Chief Justice of the Superior Court of New Hampshire

Delivered at opening session of Boston University's annual Founders' Day observance, March 12, 1942

Vital Speeches of the Day, Vol. VII, pp. 412-415.

IT is said that during the early migrations into the Oregon country two women, who may have been the first white women to cross the Great Divide, stood on the height of land in the Rockies on their way westward after a six months' journey from their eastern homes. As one of them looked back upon the cruel mountain trail over

which the party had just come, she said to the other, "Thank Heaven, the greatest ordeal lies behind us," to which the other replied, "No, our real tasks have just begun," The little band moved on into the fertile valley beyond. Land was clearedócabins were builtóothers came, the usual frontier dangers and hardships were met and overcome,but before the civilization which they craved and the things that go with it for which they hoped, become actualities the prophecy of the second woman was justified. This simple story of an incident ascribed to pioneers who fearlessly pushed across the frontiers they knew with the hope that they would better their condition in life, even if it is only fiction, has a special significance. As we reflect upon it we wonder if we are not inclined to pause on what we take to be the height of land and regard as a frontier, and for the moment speculate upon what the future holds for us, compare what we want it to bring with what has gone before, and hope that even if we have not reached a place of rest, at least the tests of strength, fortitude and endurance will be less onerous and oppressive than those we have already experienced.

When I began to study law only a few years more than a century had elapsed since the colonies had proposed and adopted the Federal Constitution, the avowed purposes of which were to establish justice, insure domestic tranquillity, provide for the common defense and secure the blessings of liberty to its proponents and their posterity. Not being entirely satisfied with the initial effort, several of the state conventions in ratifying the Constitution having protested that individual liberties were not sufficiently safeguarded, the first Congress thereafter proposed twelve amendments, ten of which were promptly ratified by a sufficient number of states to make them operative. The other two amendments fell by the wayside. These ten amendments, guaranteeing the right of trial by jury, due process of law in Federal procedure, the right of peaceful assembly, the right to bear arms, freedom of speech and freedom of the press, prohibiting cruel and unusual punishments and defining the powers of the Federal Government with respect to the states, were called the Bill of Rights from their analogy to the Act of Parliament of 1689 which defined the political liberties of Englishmen. These amendments did not lay down any novel principles, but were intended to perpetuate certain privileges and immunities which came to us as a part of the common law, and to us, simple minded students, the Constitution and Bill of Rights as a whole seemed to be an understandable document. We had yet to learn that most law is neither involved nor complicated until some court undertakes to explain it.

Of these ten amendments perhaps the tenth, from many standpoints, is the most important. It provides that "the powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states or to the people," and so it was not strange that we were taught at the law school that the Federal Government was a limited government, having only those powers which the states had conferred upon it, and that the state governments were unlimited governments, except so far as they had delegated a few powers to the Federal Government, and led to believe that here was a frontier of state rights which could not be passed. Little did those who advanced that theory realize and appreciate the possibilities to which the active and apparently untrammeled imagination of the court whose duty it was to interpret the Constitution would eventually lead.

During my time in the law school the commerce feature of the Constitution was the only one to which much attention was given, and the discussion of that had to do mostly with the operation of common carriers. The Supreme Court had declared in substance that the powers granted to the Federal Government in that connection were not confined or limited to instrumentalities known of or in use at the time of the adoption of the Constitution, butshould keep pace with the progress of the country and adapt themselves to new developments. They extended from the individual pedestrian carrier to the rider, from the rider to the stagecoach, from the sailing vessel to the steamboat, and from the coach and the steamboat to the railroad, and from the railroad to the telegraph and the telephone. That was as far as we had then gone, and the jurisdiction was deemed to arise because of something crossing a state line like the rails of the railroad or the wires of the telephone and telegraph, or some commodity or article of merchandise being carried across. That theory began to break down when the Federal Government took over the radio, because sound does not travel, and is only the impression made upon the ear by air vibrations, so no doubt a person standing on one side of a state or national boundary and shouting a message to some one on the other side of the line is engaged in interstate commerce.

The court early asserted that Congress had jurisdiction over all navigable waters. Under the English law navigable waters were limited to tidal waters. This rule was ill adapted to a country like ours with its large rivers and sizeable lakes, and so our courts said that any stream or body of water which was navigable as a matter of fact was navigable as a matter of law, so it followed that navigation on our inland ponds and lakes, even though they could only be reached overland, was interstate if that navigation was in any way connected with any commerce over which Congress had control, and this jurisdiction gave Congress the power, not only to regulate the use, but to make improvements, the expense of which was provided for by Congress in the Rivers and Harbors bill, commonly and facetiously referred to by the political party not then in power as the "National Pork Barrel." Under this rule some enterprising politicians in my own state secured an appropriation to dredge the outlet of Lake Winnipesaukee to make it usable for larger boats. It is not difficult to understand how this jurisdiction extends to lakes and streams which have some connecting link with the outside world and are of sufficient size to permit the use of transportation facilities which can be a real factor in moving goods or passengers, but it does require some imagination to figure out how a guide who carries my equipment over a spotted trail to an inland lake at the conclusion of my continuous journey from another state is engaged in interstate commerce and the lake can be controlled by Congress, or why the War Department should be interested in flood control in the first place, and, if it is, as it seems to be, why when a flood control dam is built on a non-navigable stream the pond thereby formed above it becomes navigable as soon as it will float a boat, and is again non-navigable as soon as the flood subsides.

For many years we had a prohibitory law in our state which authorized the seizure and forfeiture of intoxicating liquors kept for sale, but until the passage of an Act of Congress in 1890 which made them subject to the local law as soon as they arrived in the state the courts consistently held, following the theory of the opinion of C. J. Marshall in McDermott vs. Wisconsin (228 U. S. 136) that such liquors could not be seized so long as they remained in the original package, but as soon as the package was broken the contents were no longer a part of interstate commerce and became subject to the state law. According to the newspapers the original package rule has become obsolete, for it is reported by the press that in Indianapolis a Federal grand jury recently indicted a garage owner for making a false affidavit concerning the number of automobile tires he had in stock when rationing began, notwithstanding they were partly purchased from wholesalers within the state.

Again relying upon the press, only recently has been handed down the decision which to my mind removes the last frontier of the so-called interstate commerce clause of the Constitution. I refer to the case which holds that the Federal Government can regulate and control the price of milk raised and sold exclusively and entirely within the state of Illinois, because it is in competition with milk imported into Chicago from outside the state. If a high school boy should advance any such reasoning in a school exercise everybody would laugh at him, and the teacher would mark him zero as soon as she could find a red pencil. The native pine of my state is sold locally in competition with Carolina pine and Oregon fir, in fact, we can hardly think of anything we produce which is not to some extent in competition with foreign articles of like kind, and if this rule is followed to its logical conclusion, what is there which cannot be said to be a part of interstate commerce and beyond state control?

The Magna Charta granted to the clergy, barons and freemen of England by King John contained the provision that "No freeman shall be taken or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed or exiled, or any way otherwise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his peers, or by the law of the land." The English courts at once construed this to mean that no freeman should be hurt in his person or property except by the judgment of a jury. When the colonists adopted the common law there came with it as a matter of course the right to trial by jury, which then was and since has been considered one of the most important rights of the people. So it was not strange that it was deemed advisable to give it permanency by incorporating it into the Bill of Rights. The sixth amendment guarantees to the accused in a criminal prosecution a speedy and public trial by an impartial jury, and the seventh amendment provides that where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved and that no fact tried by a jury shall be otherwise examined by any court of the United States than according to the rules of the common law. These constitutional provisions apply only to prosecutions and suits in United States courts, but it is interesting to note in passing that the state constitutions all have similar guarantees with respect to proceedings in their own courts. The earliest jury trials known to English jurisprudence after the granting of the Magna Charta in 1215 were materially different from those of our day. Originally the jury was made up of those who knew the most about the case, including those who now would be witnesses, and the parties were not allowed to testify or present any testimony, the cases being decided upon the knowledge of the jurors concerning the matter in controversy, together with any investigation they might make, which, even if somewhat crude, was far better than trial by ordeal or wager of battel, which had prevailed before. It was almost three hundred years later that parties were permitted to call witnesses in their behalf and then only by permission of the court upon petition, and many years more elapsed before interested parties were granted the right to testify. At the time of the adoption of the Bill of rights a jury was, and still is, supposed to be made up of twelve individuals of lawful age, not of kin to nor in any way dependent upon or under obligation to any of the parties to the action to be tried, free from all bias in favor of or against any of the parties, duly sworn to render a true verdict according to the law and the evidence, and a trial by an authorized court, and conducted according to theby jury contemplates a trial by such a body presided over recognized rules of procedure and jurisprudence. It has always been regarded as one of the safeguards of the people's rights and a barrier against oppression. The Supreme Court in early decisions held that trial by jury was an absolute right except in equity, admiralty and maritime jurisprudence, and in one case went so far as to say that the seventh amendment preserves the right of trial by jury against any infringement by any department of the government. During the last few years there have been created many bureaus, administrative boards and committees, some of which no doubt serve useful purposes, but what of a board that writes its own laws, makes it own complaints, searches out the evidence to support them and then sits as a court to decide what the evidence is worth and passes judgment, from which decision there is no appeal as to the merits of the case. I have in mind one instance in my state where an employer was ordered to pay two men who were never even inside his factory doors, almost four thousand dollars because they claimed he refused to hire them for the reason that they were labor agitators. What has become of his right to trial by jury? Is there now no frontier marking the boundary between the orderly government of a democracy and a chaotic bureaucracy? Is it almost time for another Runnymede?

The philosophy of the kind of government in which we believe, both in the nation and in the state, is that the law is supreme, i. e., ours is a government by laws and not by men, and for this reason the law should be neither too liberal nor too strict in defining and denying individual rights, for an excess of liberty or lack of restraint may easily develop into mob rule, while an excess of law may easily become despotism, and it is sometimes extremely difficult to tell with certainty when the line is crossed. Most of us can tell the noonday from midnight, but who can definitely and accurately say when twilight ends and night has come, or at what moment night is ended and the day has begun? When government ceases to regulate and starts to manage, the line between freedom and despotism has been crossed. Whenever the law no longer holds the confidence of the people and becomes an object of scorn and ridicule then the government itself loses the confidence of the people and begins to disintegrate, and unless the condition is corrected and confidence restored our democratic ideas will lose their virtue and the ideals upon which the government of the people was founded will be dissipated.

The administration of justice during the war will take care of itself, for we shall bravely meet, and bear with fortitude and without complaint whatever the emergency brings, but when the war is over and we can give our attention to the finer things of life I hope there will be a movement looking toward the return to those ways and things which have made America great, and that the line of demarcation between what we were taught were the safeguards of our rights and liberties on the one hand and a government of uncertainty on the other may be reestablished. The natural inquiry is, how shall this be done, and by whom? Although I entertained different political views and was bitterly opposed to some of his policies, I recognized Woodrow Wilson as a statesman and as possessing very superior scholarly attainments, and, because he has clothed the thought I should like to advance in answer to that inquiry, in more appropriate language than I could hope to choose, I trust I may be pardoned if, in closing, I quote from one of his great speeches:

"As one looks about him at the infinite complexities of the modern problems of life, at the great tasks to be accomplished by law, at the issues of life and happiness and prosperity involved, one cannot but realize how much depends upon the part which the lawyer is to play in the future policies of the country. If he will not assume the role of patriot and statesman, if he will not lend all his learning to the service of the common life of the country, if he will not open his sympathies to common men and enlist his enthusiasms in those policies which will bring regeneration

to the business of the country, less expert hands than his must attempt the difficult and perilous business. It will be clumsily done. It will be done at the risk of reaction against the law itself. . . .

The tendencies of the profession, therefore, its sympathies, its inclinations, its prepossessions, its training, its point of view, its motives, are part of the stuff and substance of the destiny of the country." . . .