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No. 115 "It Can Be Done" Speech by Hon. Merrill E. Otis, United States District Judge Before the Law School of the University of Missouri, January 31, 1936. American Liberty League. 400dpi TIFF G4 page images Digital Library Services, University of Kentucky Libraries Lexington, Kentucky Am_Lib_Leag_115 These pages may freely searched and displayed. Permission must be received for subsequent distribution in print or electronically. No. 115 "It Can Be Done" Speech by Hon. Merrill E. Otis, United States District Judge Before the Law School of the University of Missouri, January 31, 1936. American Liberty League. American Liberty League. Washington, D.C. 1936. This electronic text file was created by Optical Character Recognition (OCR). No corrections have been made to the OCR-ed text and no editing has been done to the content of the original document. Encoding has been done through an automated process using the recommendations for Level 1 of the TEI in Libraries Guidelines. Digital page images are linked to the text file. JOIN THE AMERICAN LIBERTY LEAGUE The American Liberty League is organized to defend and uphold the Constitution of the United States and to gather and disseminate information that (1) will teach the necessity of respect for the rights of persons and property as fundamental to every successful form of government and (2) will teach the duty of government to encourage and protect individual and group initiative and enterprise, to foster the right to work, earn, save, and acquire property, and to preserve the ownership and lawful use of property when acquired. The League believes in the doctrine expressed by George Washington in his Farewell Address that while the people may amend the Constitution to meet conditions arising in a changing world, there must "be no change by usurpation; for this * * * is the customary weapon by which free governments are destroyed." Since the League is wholly dependent upon the contributions of its members for financial support it hopes that you will become a contributing member. However, if you cannot contribute it will welcome yonr support as a non-contributing member. Enrollment Blank Date............ I desire to be enrolled as a member of the American Liberty League. Signature ................................ Name ................................. Street.................................. Town .................................. County .......................... State. Enclosed find my contribution of $....... to help support the activities of the League. IT CAN BE DONE â˜… â˜… â˜… Speech by HON. MERRILL E. OTIS United States District Judge Before the Law School of the University of Missouri January 31, 1936 AMERICAN LIBERTY LEAGUE National Headquarters NATIONAL PRESS BUILDING WASHINGTON, D. C. Document No. 115 It Can Be Done â˜… Not LONG AGO I had the privilege of listening to an address on the state of the Union, by the President of the United States. There were two sentences in that address which startled me and which must have startled every listening lawyer in the land. The sentences were these: "The carrying out of the laws of the land as enacted by the Congress requires protection until final adjudication by the highest tribunal of the land. The Congress has the right and can find the means to protect its own prerogatives." It is generally believed, I think, that what the President meant is this: 1 Congress has the 1 These sentences in the President's address were not spoken with that exactness in the use of words and phrases characteristic of most of his predecessors in their addresses, messages and state papers. (As, for examples, Lincoln and Woodrow Wilson.) It is somewhat difficult to make out exactly what he did mean. Two things, it appears, require protection: (1) "the carrying out of the laws of the land" and (2) the "prerogatives" of Congress. These are different things. "Carrying out the laws of the land" is a function of the President who is charged with the duty of taking care "that the laws be faithfully executed." Article II, Section 3. An unconstitutional statute is not a "law of the land." It is as if it never had been enacted. Norton v. Shelby County, 118 U. S. 442. Certainly the courts have not interfered in any way with the carrying out of the "laws of the land." Again, the "lawB of the land" never are "adjudicated" by the courts. Even unconstitutional statutes never are "adjudicated" by the courts. Cases and controversies are adjudicated. A ruling in a given case or controversy that a statute is unconstitutional in no sense is an "adjudication" of the state. It is only a ruling that the statute does not govern the judgment in the case or controversy. Again, in no true sense of the word does Congress have "prerogatives." Historically the word "prerogative" is associated with the exercise of a power for which there is no responsibility or accountability. Certainly, moreover, Congress has no "prerogative" to enact statutes violative of the Constitution. It is empowered only to enact statutes in the discharge of its specially delegated powers. No court ever has interfered with this function, or, for that matter, with the enactment by Congress of unconstitutional statutes. If courts have prevented the application of unconstitutional statutes in cases and controversies pending before them, that prevention certainly is not an interference with any function of Congress. Congress has no function to apply the law in cases and controversies. That is exclusively the function of the courts. 2 power to prevent any court, save the Supreme Court of the United States, from ruling that a statute enacted by the Congress which the President has approved, because it contravenes the Constitution, is not the law governing the decision of a case before the court. When FIRST I heard these sentences it seemed to me that the statesman who uttered them must he mistaken. Upon reflection I am certain that if he meant exactly what I have suggested he did mean he is mistaken. It is reasonable to suppose-that the President particularly had in mind the national courts. The state courts too have and have exercised the power to declare acts of Congress violative of the Constitution. The circuit court here in Boone County where this University is located has that power in any case in which an act of Congress may be involved. Congress has no control whatever over that court's powers. Even the legislature of Missouri cannot by statute, even the sovereign people of Missouri cannot by their Constitution, deprive the circuit court of Boone County of the power to pass on the validity under the national Constitution of acts of Congress or of acts of the legislature.2 2 Judges of the state courts are bound by the national Constitution. It is expressly provided in the Constitution that "the judges in every state shall be bound" by the Constitution and the "laws of the United States which shall be made in pursuance thereof * * * "anything in the Constitution or laws of any state to the contrary notwithstanding." Article VI, Sec. 2. They are expressly required to take an oath to support the Constitution. Certainly Congress has no power to regulate the judges of the state courts. Whatever power it has over the national courts is limited by the Constitution to those courts. Even the sovereign people of a state cannot by constitutional amendment so legislate as to take away from the state courts their duty to support and apply the Constitution of the United States. People v. Telegraph Co. (Sup. Ct. of Colo.) 79 Colo. 90, 198 P. 146. It is interesting to note, however, that notwithstanding this principle one of the bills introduced in Congress, possibly as a result of the President's address, provides that "No court * * of any state * * shall have jurisdiction in determining any case or controversy to hear or decide any question as to the constitutionality of any statute of the United States * *." H. R. 10128, introduced by Mr. Martin of Colorado, January 13, 1936. 3 The President had in mind the national courts, those existing and those which hereafter may be established. He had in mind these courts and the power of Congress to protect from them the "prerogative" of Congress to enact unconstitutional statutes. The principal national court having original jurisdiction is the United States District Court. Our discussion will be simplified if we confine it to that court. ASSUMING NOW a case or controversy of which the district court has been given jurisdiction, it must be at once apparent that Congress has no authority to take from that court the power to pass on the validity of any statute which may be involved in that case or controversy. The reason for that incontrovertible conclusion is that, while the jurisdiction of the case or controversy has been conferred by Congress, the judicial power to decide the case or controversy has been conferred upon the court, not by Congress, but by the Constitution. In Section 1 of Article III of the Constitution it is written that "The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish." The judicial power then is not vested by Congress in the district court and Congress cannot take it or any part of it from the district court. What is the judicial power? It is not now necessary to define it. It is enough to say that whatever else it may include certainly it includes the function of deciding in any case or controversy before the court what is the law governing the case or controversy. And it is just as certain that the function of deciding what is the applicable law includes the function of deciding whether a statute presented as the law conflicts with the Constitu-4 tion.3 It includes the power to decide the case or controversy according to' the Constitution, the conflicting statute notwithstanding. When Chief Justice Marshall demonstrated that conclusion in Marbury versus Madison he was speaking of the judicial power of all the courts, not of the judicial power of the Supreme Court alone. Nothing that he said in that epochal opinion logically can be restricted in its application to the power of the highest court.* We may stop then for a moment in the course of our discussion to set up this indisputable declaration upon our way: If Congress should enact a statute providing that the district courts of the United States, in cases and controversies of which they are given jurisdiction, shall have no power to rule that a statute enacted by the Congress does not govern the decision of a case or controversy, that statute would be absolutely void.5 Let us go on. 3 "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must, of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So, if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case, conformable to the law, disregarding the constitution; or conformable to the constitution, disregarding the law; the court must determine which of these conflicting rales governs the case; thiB is of the very essence of judicial duty." Chief Justice Marshall in Marbury v. Madison, 1 Cr. 137,173. * The whole basis of the conclusion reached by Chief Justice Marshall that the courts have the power to pass upon the constitutionality of statutes is in the requirement of the Constitution that the judges shall take an oath to support the Constitution as the supreme law. The reference is to all judges. ""Why does a judge," said the Chief Justice, "swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? If it is closed upon him and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime." B At least one of the bills introduced in Congress following the President's address (H. R. 10128) attempts exactly this thing. It reads as follows: **Be it enacted by the Senate and House of Representatives of the United States in Congress assembled, That 5 Is THERE no WAY in which Congress can protect its "prerogative" of enacting unconstitutional statutes? I can think of two ways in which that high purpose can he accomplished. I suppose that Congress has the power to repeal any statute which it had the power originally to enact. Therefore it has the power to repeal the several statutes creating the district courts. And it has the power to repeal the several statutes vesting jurisdiction of enumerated classes of cases and controversies in the district courts. The enactment of such repealing statutes certainly would accomplish the desired result. It would result in chaos also, but the power of Congress under the Constitution is great enough to produce a state of chaos, as well as a state of national bankruptcy, if Congress wills to do either of those things. Moreover, the chaos need be only temporary. Contemporaneously with the repealing statutes other statutes might he enacted recreating the district courts, vesting the new courts with the same jurisdiction as was vested in the old. Perhaps, although I doubt that, perhaps lawyers could be found to accept judgeships in the newly created courts who would agree to take the oath to support the Constitution with their fingers crossed. no court of the United States (except the Supreme Court in the exercise of its original jurisdiction), * * shall have jurisdiction in determining any case or controversy to hear or decide any question as to the constitutionality of any statute of the United States (a) which is, or purports to be, an exercise of any of the powers of Congress under clause 1, 3 or 5 of Section 8 * * or under Article XVI of the amendments thereto * * or (b) which affects, or purports to affect, rights under Article V or Section 1 of Article XIV of the amendments * Still more destructive in its purpose is H. R. 9478, introduced January 3, 1936, which provides: "That in all cases filed in an inferior federal court, the court shall pass upon both questions of law and fact, with the exception that no inferior court shall consider any plea which attacks the constitutionality of an act of Congress, and any such plea shall be ordered by the court stricken from the record." 6 The same remedy for the protection of "prerogatives" might be used over and over again whenever necessary. Another remedy for the "evil" aimed at, a remedy not quite so radical as that just now described, has been suggested. Congress has the power to say in what classes of cases the district courts shall have jurisdiction. It has been suggested that the cases of which the district courts now have jurisdiction shall be divided between two classes: (1) those in which the validity of statutes enacted by Congress is called in question and (2) all other cases; and that the district courts be deprived of jurisdiction of cases in the first of these two classes.6 Let us suppose that Congress has enacted a statute effectuating this suggestion. Is it a valid statute? Where in the Constitution is the power conferred on Congress to enact such a statute? The only possible answer to that question is: The power, if it exists, is implied in the power to create inferior courts. Art. I, Sec. 8(9) ; Art. Ill, Sec. 1. Putting aside the question (which is quite debatable) whether the power to withdraw jurisdiction from courts created is implied in the power to create courts, putting aside the further question (still more debatable) whether the suggested classification of cases is a power at all implied in the power to create courts, one 8 This suggestion in large part is embodied in a bill introduced January 16, 1936, in the House of Representatives by Congressman Sisson, H. R. 10315, which reads in part as follows: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the judicial code * * is hereby amended by inserting * * the following new section: Sec. 256A. No court of the United States (except the Supreme Court in the exercise of its original jurisdiction) * * shall have jurisdiction, original or appellate, of any case or proceeding in which any party seeks by his pleadings, assignments of error, or otherwise, to have the court hear or decide any question as to the constitutionality of any statute of the United States * 7 thing is certain (it is not debatable) ; Congress cannot exercise any of its delegated powers so as to destroy express limitations on its powers and express guaranties of individual liberty. For illustration, Congress has the power to enact laws on the subject of bankruptcies; an unanimous Supreme Court but recently has said that it can not so exercise that power as to deprive persons of their property in violation of the due process clause of the Fifth Amendment. Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555. SUPPOSE NOW that Congress has enacted a statute depriving the district courts and all inferior courts of the United States of jurisdiction of cases where the validity of a statute is called in question. Suppose further that having enacted that statute Congress proceeds to test its "prerogatives", now secured, its "prerogatives" to exceed its constitutional powers. One of the very first of the limitations in the Constitution on the power of Congress is that "No bill of attainder shall be passed." 7 Suppose now that Congress, liberated from the restraints of the Constitution, does pass a bill of attainder,8 for example, a bill condemning to life-long exile on a lonely isle of the Pacific a certain "Happy Warrior" now resident in New York, who occasionally visits the capitol hut does not call at the White House. It might even be possible to borrow for a while the use of St. Helena from the newly proclaimed British King. We can imagine the "Happy Warrior" would retain John W. Davis as his counsel. That great 7 It is interesting to note that the very first limitation, restraining Congress from prohibiting, before 1808, the migration or importation of certain persons (Art. I, Sec. 9(1)) was a limitation in the interest of human slavery. Every other limitation on the power of Congress is a limitation in the interest of human liberty. 8 It is not unthinkable that a bill of attainder might be passed in the United States. The framers of the Constitution thought it was necessary to guard against it. A bill of attainder was attempted by Missouri in 1865. As such it was pronounced invalid by the Supreme Court of the United States. Cummings v. Missouri, 4 Wall. 277. American lawyer, himself also once the choice of millions of his countrymen for the Chief Magistracy of the nation, would know the bill of attainder is void utterly, an act of indefensible usurpation and of indescribable tyranny. What could he do about it? He could not set up its invalidity at the trial of his client for there would be no trial; a bill of attainder is an act of legislative condemnation without trial. I suppose he would petition some United States District Judge for a writ of habeas corpus, unless Congress, in violation of the first of the existing limitations on its power, had suspended the privilege of that ancient writ. If the prisoner were produced (and he might not be produced) 9 the district judge would be reminded that he could not question the validity of the act of Congress. Perhaps the judge, bending his knee in obeisance and fear,10 would remand the prisoner to the custody of his jailer. The prisoner would appeal to the Supreme Court (if Congress had not deprived the Supreme Court of appellate jurisdiction in habeas corpus proceedings) .xl What would the Supreme Court say about this bill of attainder and about this statute depriving the district court of jurisdiction to question the validity of any statute? 9 Merryman was not produced although the Chief Justice of the United States issued the writ and ordered his production. Ex Parte Merryman, Fed. Cas. No. 9487. 10 One of the measures introduced (by Representative Monaghan of Montana) to protect the "prerogative" of Congress forbids a judge to declare any act of Congress unconstitutional and provides that if he does he shall be guilty of violating the constitutional requirement of "good behavior" and be removed from office. See United States News, January 27, 1936, page 3. In connection with this proposal it is interesting to note the contention of Senator McAdoo that Congress has authority to create a tribunal empowered to try judges for misbehavior and to remove them from office. See Report of Special (Senate) Committee to Investigate Administration of Justice, page 1649 ff. u Exactly that once was done by Congress. Act of March 27, 1868, 15 Stat. 44. The validity of the act waB sustained. Ex Parte McCarde, 7 Wall. 506. It will be strange if someone in Congress does not conclude from that decision that the Supreme Court also may be prevented from passing on the constitutionality of statutes by the simple process of withdrawing from it all appellate jurisdiction. I VENTURE to express the belief that the Supreme Court would say by the unanimous voices of its nine justices (perhaps there will be eleven then, perhaps one hundred and eleven then) ,12 by the unanimous voices of all its justices the Supreme Court would say: "Congress has the power to create inferior federal courts, but it cannot so exercise that power and the incidents thereof as to destroy the limitations and guaranties of the Constitution." And I doubt not that the Supreme Court would pronounce the same solemn and unanimous judgment even if some subterfuge had been resorted to in the hope of circumventing such a judgment, some such subterfuge as a provision for a newly created court, a single court, sitting in Washington (or Key West or Honolulu) to which alone the citizen might go, if he could get there, with the Constitution of his country in his hands. Yet, it can be done. The "prerogatives" can be protected from the courts, in at least the two radical and revolutionary ways I have suggested. But even so it could not constitutionally be done. The courts could not prevent it, but it could not constitutionally be done. THE chief executive, senators and representatives must violate their oaths to do this thing. They will not do that. The oath "to preserve, protect and defend the Constitution," the oath "to support the Constitution," these oaths were not prescribed for the preservation of the mere letter of the organic law. They were prescribed to the end that the great underlying concepts in the Constitution should endure fully and forever. None of those concepts is more fundamental 13 At least two bills have been introduced in Congress to increase the number of Supreme Court justices to the end that that court may be so "packed" as that even in that court the "prerogatives" of Congress may be protected." H. R. 10102, introduced by Mr. Quinn January 10, 1936, proposes an increase from nine to eleven. H. R. 10362, introduced by Mr. Lundeen January 17, 1936, proposes an increase from nine to fifteen. 10 than that the powers of Congress should be limited for the sake of the preservation of those "inalienable rights" of men with which, said Thomas Jefferson, they "are endowed by their Creator." Again he said, "Governments are instituted among men to make these rights secure." These immortal utterances of Jefferson were made the law, for rulers and the ruled, in the Constitution. One other concept is quite as fundamental. The limitations on the powers of Congress were intended to be real, to be capable of enforcement through the exercise of the judicial power, since otherwise they are but empty words. These two great concepts are joined together. The first cannot live unless the second lives. If the second is destroyed the first must perish with it. Who enact and who approve a statute which makes these fundamental concepts meaningless abstractions drive a knife into the very heart of the great charter. It can be done but, thank God, it will not be done. If there can be found some senator or some representative who will dare to introduce a biU to deprive citizens of the Republic of their prerogatives, of the protection of constitutional limitations and guaranties, by closing against them the doors of the court houses of the land, the overwhelming majority of his brethren will denounce and defeat his shameful treachery. They will need no aid. â€¢ But if they should need aid, Webster, the 1 "God-like Daniel," will come again to the sen-5 ate house to champion the charter of liberty â– that so ably, so nobly, he defended in tragic | days gone by. "Old Man Eloquent" will come ] again to the house of representatives once more "â– to battle for the rights of man. They and aU : the nation's heroic dead will come again to join ; the patriot living in defense of the citadel of ; liberty against the bold aggressor. 1 11 .1 J