to consider the example set by that wise and canny old patriot, Benjamin Franklin, when he avowed, at the close of the constitutional convention of 1787, that there were some things in the Constitution of which he did not wholly approve, but he was not certain that he should never be brought to approve of them, and that he was willing to doubt a little his own infallibility, and would sign the instrument because he did not believe that another convention could produce a better. Book Reviews THE DOCTRINE OF JUDICIAL REVIEW, ITS LEGAL AND HISTORICAL BASIS, AND OTHER ESSAYS. By Edward S. Corwin. Princeton University Press, 1914. To the mind of an old-fashioned lawyer, Professor Corwin's justification of the judicial review of legislative acts with reference to their constitutional validity is somewhat tenuous. His opinion is that "the power rests upon certain general principles thought by its framers to have been embodied in the Constitution." He finds no warrant for it in the text of the Constitution itself. He considers the decision in the case of Marbury against Madison to be erroneous and unconvincing, and moreover he believes that it proceeded, in part at least, from an unholy desire on the part of John Marshall to rap the knuckles of James Madison. At the same time he is perfectly correct in stating that "the question is not, what did the framers of the Constitution hope or desire with reference to judicial review, but what did they do with reference to it." It is surprising that he should have come so close to the answer without clearly perceiving it. For he discusses the provision of the second section of the third article of the Constitution, "the judicial power shall extend to all cases at law and in equity arising under this Constitution," etc., and rightly concludes that it contains no grant of power to measure the validity of acts of Congress by their conformity with the Constitution, but is a mere definition of jurisdiction, and yet the first section of the same article almost escapes his notice. But it is precisely in the words of this section that the authority is granted,-"the judicial power of the United States shall be vested in one supreme court," etc. What is judicial power? It is the power to hear and decide controversies properly brought by interested parties in the courts of justice, in accordance with the existing law. So to decide, the court must determine what the law is. It may be that there is no question about the applicable statute, but that its meaning is obscure or its language ambiguous. Then the court must construe or interpret it, as a step in the ascertainment of the rights of the parties. It may be that two statutes are produced, relating to the same subjectmatter, the later of which may or may not have repealed the earlier. To decide this question is then a necessary part of the court's duty. In precisely the same way a statute and the Constitution may be brought forward side by side, and an inconsistency between them alleged. In this event it is certainly within the "judicial power" to determine whether the statute is valid or not. This view of the matter also disposes of the notion that the act of a legislative body in enacting a statute is or should be a conclusive affirmation of its constitutionality. This idea accords with the theory of the Roman law, by which the legislator is both the maker and the interpreter of law, and the judge has nothing to do but to take what law he can find and try to fit it to the case before him. But it is not in harmony with American juristic theories. In fact, as one of our courts has said, "that which distinguishes a judicial from a legislative act is that the one is the determination of what the existing law is in relation to some existing thing already done or happened, while the other is a predetermination of what the law shall be for the regulation of all future cases falling under its provisions." Furthermore, the legislature makes only a general application of the statute to the class of persons (as yet unascertained) who may in the future come within its terms. The test The test of the validity of the law must come when it is sought to make a specific application of it to the rights or interests of some one individual. This application may be made, and often is made, in the first instance, by an administrative officer. But his decision is not final. One of the reasons why the courts are established is that the decision of the administrative officer may not be final. It is therefore only in the courts that an authoritative reply to the question can be given. And it is upon this ground that Professor Corwin ultimately rests his case. For his conclusion is that "judicial review rests upon the following propositions and can rest upon no others: (1) That the Constitution binds the organs of government; (2) that it is law in the sense of being known to and enforceable by the courts; (3) that the function of interpreting the standing law appertains to the courts alone, so that their interpretations of the Constitution as part and parcel of such standing law are, in all cases coming within judicial cognizance, alone authoritative, while those of the other demere expressions of partments are opinion.” The remaining essays which make up the volume are not without considerable interest and value. One deals with the decision in the case of Dred Scott, which the author denounces as "a gross abuse of trust by the body which rendered it." Another treats historically of the subjects of nullification and secession. Another is concerned with the explosion of what the author calls the "Pelatiah Webster myth," a theory, namely, put forward by Mr. Hannis Taylor, the historian, that the person so named, and whom Madison once described as "an able citizen of Philadelphia," and then on reconsideration struck out the adjective, was the real inventor of practically all the distinctive characteristics of the Constitution of the United States, his pamphlet suggesting a form of government having been published four years before the assembling of the constitutional convention. The concluding paper is entitled "Some Possibilities in the Way of Treaty-Making," and contains an argument upon the authority of the national government, if it chose to exercise it, to join with other powers in the internationalization of plans for the improvement of the condition of the laboring classes, such as laws restricting the labor of women and children, minimizing occupational diseases, insuring workmen against industrial accidents, and the like. THE SUPREME COURT AND THE CON STITUTION. By Charles A. Beard, The question which Professor Beard propounds for solution in this volume is this: "Did the framers of the Federal Constitution intend that the Supreme Court should pass upon the constitutionality of acts of Congress?" A very emphatic negative has lately been pronounced by a few writers of respect able authority and of more or less eminence in the legal world; and this "has put the sanction of some guild members on the popular notion that the nullification of statutes by the federal judiciary is warranted neither by the letter nor by the spirit of the supreme law of the land, and is therefore rank usurpation." One of the chief opponents of judicial review is the chief justice of a southern state, and it was the decision in the income-tax cases, rendered by a divided court in 1894, which seems principally to have aroused his ire. He inquires: "Of what avail shall it be if Congress shall conform to the popular demand and enact a rate-regulation bill, and the President shall approve it, if five lawyers, holding office for life and not elected by the people, shall see fit to destroy it, as they did the income-tax law? Is such a government a reasonable one, and can it be longer tolerated after 120 years of experience have demonstrated the capacity of the people for self-government? If five lawyers can negative the will of 100,000,000 of men, then the art of government is reduced to the selection of those five lawyers." One further quotation from this writer may be permissible, for the purpose of showing how utterly he misconceives the spirit in which conscientious judges approach the consideration of questions of constitutionality. and the severe rules by which they limit their inquiry. "Such methods of controlling the policies of a government," says the chief justice, “are no whit more tolerable than the conduct of the augurs of old, who gave the permission for peace or war, for battle or other public movements, by declaring from the flight of birds, the inspection of the entrails of fowls, or other equally wise devices, that the omens were lucky or unlucky, the rules of such divination being in their own breasts, and hence their decisions beyond remedy." Now this question is not one of political expedience; it is a question of law. The point to be determined is not whether we wish or desire, or think it an element of good government, that our judges should exercise this authority. The question is whether or not they rightfully possess it. And this And this must be decided upon a consideration of the text of the Constitution, a view of its spirit and purpose, and an historical study of the evidence as to the meaning and intention of those who framed it. It is to the latter branch of the argument that Professor Beard chiefly addresses himself. As he says, "while the desirability of judicial control over legislation may be considered by practical men entirely apart from its historical origins, the attitude of those who drafted the Constitution surely cannot be regarded as a matter solely of antiquarian interest. Indeed, the eagerness with which the views of the Fathers have been marshalled in support of the attack upon judicial control proves that they continue to exercise some moral weight, even if they are not binding upon the public conscience." Proceeding, therefore, to a close study of the men who composed the constitutional convention of 1787 and of their recorded utterances, our author shows conclusively and beyond peradventure, that there was a group of about twenty-five delegates whose character, force, and ability, as well as their constant attendance and diligence in the work of the convention made them the dominant element in its councils. Seventeen of these expressed themselves as in favor of the authority of the judges to pronounce upon the constitutional validity of acts of Congress, or at least showed, by their remarks in debate, that they assumed the existence of such an authority as a matter of course. The other members of the dominant group are not shown to have voiced any opinion on the question. The three members of the convention who distinctly avowed an opposite opinion were among those who exercised no special influence, contributed no constructive ideas, and assumed no position of leadership. In view of this, it is difficult to withhold assent from his conclusion that "it cannot be assumed that the convention was unaware that the judicial power might be held to embrace a very considerable control over legislation, and that there was a high degree of probability (to say the least) that such control would be exercised in the ordinary course of events." Nor can it be contended that the ratification of the Constitution was effected in the several state conventions under any misapprehension as to the scope of the judicial power and the occasions for its exercise which might arise. The convention in Virginia was enlightened on this specific point by no less a person that John Marshall himself. The Maryland convention had before it a letter of Luther Martin which could leave no doubts as to his opinion on the subject. If the members of the Pennsylvania convention had any doubts regarding the probable exercise of judicial control over legislation under the new Constitution, these must have been removed by the speeches of James Wilson in defense of the judiciary. It seems hardly likely that the New York convention could have been ignorant of Hamilton's views as expressed in the "Federalist." And it was the task of Oliver Ellsworth to make the matter perfectly plain, as he did, to the convention in Connecticut. So far, therefore, the evidence of history appears to be entirely incontrovertible. As to considerations drawn from the spirit, the purpose, and the general character of the Constitution, it is not possible here to follow Professor Beard into all the details of his interesting and instructive argument. But it is doubtless true, as he says, that the members of the constitutional convention "were not seeking to realize any fine notions about democracy and equality, but were striving with all the resources of political wisdom at their command to set up a system of government that would be stable and efficient, safeguarded on one hand against the possibilities of despotism and on the other against the onslaught of majorities." And it seems that few should hesitate to accede to his conclusion that the thoughtful and representative men of that day "must have rejoiced in the knowledge that an independent judiciary was to guard the personal and property rights of minorities against all legislatures, state and national." In this view, therefore, if it be true that Chief Justice Clark's hundred millions of men are bent upon acts of spoliation and of shredding the Constitution to bits, it is not deplorable on the contrary, it is profoundly well,—that five, or nine, or any number of upright judges should be found to thwart their unrighteous will. If the people are not satisfied with their Constitution they can amend it. But no good end of government can be promoted by accomplishing an act of ravishment upon the fundamental law. THE RECORDS OF THE FEDERAL CON- In compiling these three sumptuous volumes, Professor Farrand has admirably acquitted himself of a most laborious task, and has rendered a service to all students of the American constitutional system and to all future historians which deserves and will certainly receive their grateful appreciation. For he has here assembled all the available "source" material upon the constitutional convention of 1787, hitherto scattered through various printed volumes and some of it never before published, in what we must believe to be the final and definitive work on the subject, since it is highly improbable that any further combing of the original materials would yield items of any importance, and since it would hardly be possible to improve on Professor Farrand's use and arrangement of his documents. The "Debates" or "Jourtaking Madison, together with the offinal" kept by the industrious and painsJackson, must still remain our chief cial record of the secretary, William sions and resolutions of the convention. source of information as to the discus But the volumes before us also include much that is valuable from the notes kept by Yates, King, McHenry, Patterson, Hamilton, and other delegates, not omitting the sprightly and amusing comments of William Pierce of Georgia upon the personal and political |