The Constitution of the United States of America: Analysis and Interpretation
Chapter 1 : The Const.i.tution of the United States ofAmerica: a.n.a.lysis and Interpretation.by Edw

The Const.i.tution of the United States ofAmerica: a.n.a.lysis and Interpretation.

by Edward Corwin.

PREFACE.

By Honorable Alexander Wiley.

_Chairman, Senate Foreign Relations Committee_

To the Members and Committees of the Congress, the Const.i.tution is more than a revered abstraction; it is an everyday companion and counsellor.

Into it, the Founding Fathers breathed the spirit of life; through every subsequent generation, that spirit has remained vital.

In more than a century and a half of cataclysmic events, the Const.i.tution has successfully withstood test after test. No crisis--foreign or domestic--has impaired its vitality. The system of checks and balances which it sets up has enabled the growing nation to adapt itself to every need and at the same time to checkrein every bid for arbitrary power.

And meantime America itself has evolved dynamically and dramatically.

The humble 13 colonies, carved out of the wilderness in the 18th Century, emerged in the 20th Century as leader of earth--industrial--military--political--economic--psychological. Yet the broad outline of the Supreme Law remains today fundamentally intact.

It is small wonder that W.E. Gladstone described the Const.i.tution as "the most wonderful work ever struck off at a given time by the brain and purpose of man." He knew, as should we, that the Const.i.tution's words, its phrases, clauses, sentences, paragraphs, and sections still possess a miraculous quality--a mingled flexibility and strength which permits its adaptation to the needs of the hour without sacrifice of its essential character as the basic framework of freedom.

Congress has long recognized how necessary it is to have a handy working guide to this superb charter. It has sought a map, so to speak, of the great historical landmarks of Const.i.tutional jurisprudence--landmarks which mark the oft-times epic battles of clas.h.i.+ng legal interpretations.

A first step was taken toward meeting this need by publication of Senate Doc.u.ment 12, 63d Congress in 1913. Ten years later, in 1923 another volume was issued, Senate Doc.u.ment 96, 67th Congress, and it was followed in turn by Senate Doc.u.ment 154 of the 68th Congress.

In 1936, Congress authorized a further revision, this time by the Legislative Reference Service. Mr. Wilfred C. Gilbert, now the a.s.sistant Director of the Service, was the editor of this volume which became Senate Doc.u.ment 232, 74th Congress, and he has given counsel throughout the development of the present edition of this volume.

After another decade of significant and far-reaching judicial interpretation, the Senate Judiciary Committee reported out Senate Joint Resolution 69 of the 80th Congress calling upon the Librarian of Congress for the preparation of the new work. However, because of the increase in responsibilities of the Legislative Reference Service, it was no longer feasible for it to undertake this additional burden with its regular staff. The Director of the Service, Dr. Ernest S. Griffith, suggested therefore that Dr. Edward S. Corwin be engaged to head the project with a collaborating staff to be furnished by the Legislative Reference Service.

In my capacity at the time, as Chairman of the Senate Judiciary Committee, I was delighted to give my approval to this arrangement, for I recognized our particular good fortune in obtaining the services of an acknowledged authority for this highly significant and delicate enterprise.

I should like now to express our thanks and appreciation to Dr. Corwin and to his collaborators from the Service, Dr. Norman J. Small, a.s.sistant Editor, Miss Mary Louise Ramsey, and Dr. Robert J. Harris, for all their prodigious and skilled labors.

Moreover, for their considerable efforts in connection with the detailed legislative and printing arrangements for the publication of this volume, I should like to express appreciation to Mr. Darrell St. Claire, Staff Member for the Senate Rules Committee, as well as Chief Clerk for the Joint Committee on the Library of Congress; and Mr. Julius N. Cahn, previously Executive a.s.sistant to me when I was Chairman of the Judiciary Committee and now Counsel to the Senate Foreign Relations Committee.

Initiated in the Republican 80th Congress, the project was undertaken With funds supplied by the succeeding Democratic 81st Congress, while the Democratic 82d Congress extended its coverage to include Supreme Court decisions through June 30, 1952. The doc.u.ment thus represents Congressional nonpartisan activity at its best, as should ever be the case in our fidelity to this great charter.

In the present volume, in addition to the annotations indicating the current state of interpretation, Dr. Corwin has undertaken to supply an historical background to the several lines of reasoning. It is our hope and expectation that this introduction will prove of immense benefit to users in understanding the trends of judicial const.i.tutional interpretation.

It is our further hope that this edition as a whole may serve a still larger purpose--strengthening our understanding of and loyalty to the principles of this republic.

In that way, the Const.i.tution will remain the blueprint for freedom. It will continue as an inspiration for us of this blessed land, and for men and women everywhere; for they look to these sh.o.r.es as the lighthouse of freedom, in a world where the darkness of despotism hangs so heavily.

_May 30, 1953._

[Ill.u.s.tration: Alexander Wiley signature]

PREFACE.

For many years the Congress has felt the need for a handy, concise guide to the interpretation of the Const.i.tution. An edition of the Const.i.tution issued in 1913 as Senate Doc.u.ment 12, 63d Congress, took a step in this direction by supplying under each clause, a citation of Supreme Court decisions thereunder. This was obviously of limited usefulness, leaving the reader, as it did, to an examination of cases for any specific information. In 1921 the matter received further consideration. Senate Resolution 151 authorized preparation of a volume to contain the Const.i.tution and its amendments, to January 1, 1923 "with citations to the cases of the Supreme Court of the United States construing its several provisions." This was issued as Senate Doc.u.ment 96 of the 67th Congress, and was followed the next year by a similar volume annotating the cases through the October 1923 Term of the Supreme Court. (Senate Doc.u.ment 154, 68th Congress.) Both of these volumes went somewhat beyond the mere enumeration of cases, carrying under the particular provisions of the Const.i.tution a brief statement of the point involved in the princ.i.p.al cases cited.

Thirteen years of Const.i.tutional developments led Congress in 1936 to authorize a revision of the 1924 volume, and under authority of Senate Concurrent Resolution 35 introduced by Senator Ashurst, Chairman of the Judiciary Committee, such a revision was prepared in the Legislative Reference Service and issued as Senate Doc.u.ment 232, 74th Congress.

This volume was, like its predecessors, dedicated to the need felt by Members for a convenient ready-reference manual. However, so extensive and important had been the judicial interpretation of the Const.i.tution in the interim that a very much larger volume was the result.

After another decade, in the course of which many of the earlier interpretations were reviewed and modified, the Senate again moved for a revision of the Annotations. Senate Joint Resolution 69 introduced by the then Chairman of the Judiciary Committee, Senator Alexander Wiley, again called upon the Library of Congress to undertake the work. The confidence thus implied was most thoroughly appreciated. To meet his responsibilities, the Librarian called upon Dr. Edward S. Corwin to head the project. The collaborating staff, supplied by the Legislative Reference Service, included Dr. Norman J. Small as a.s.sistant editor, Miss Mary Louise Ramsey, and Robert J. Harris.

This time, more than ever, the compilers faced a difficult task in balancing the prime requirement of a thorough and adequate annotation against the very practical desire to keep the results within convenient compa.s.s.

Work on the project was delayed until funds were made available. In consequence the annotations have been extended to a somewhat later date, covering decisions of the Supreme Court through June 30, 1952.

Ernest S. Griffith, _Director, Legislative Reference Service._

EDITOR'S FOREWORD

The purpose of this volume is twofold; first, to set forth so far as feasible the currently operative meaning of all provisions of the Const.i.tution of the United States; second, to trace in the case of the most important provisions the course of decision and practice whereby their meaning was arrived at by the Const.i.tution's official interpreters. Naturally, the most important source of material relied upon comprises relevant decisions of the Supreme Court; but acts of Congress and Executive orders and regulations have also been frequently put under requisition. Likewise, proceedings of the Convention which framed the Const.i.tution have been drawn upon at times, as have the views of dissenting Justices and occasionally of writers, when it was thought that they would aid understanding.

That the Const.i.tution has possessed capacity for growth in notable measure is evidenced by the simple fact of its survival and daily functioning in an environment so vastly different from that in which it was ordained and established by the American people. Nor has this capacity resided to any great extent in the provision which the Const.i.tution makes for its own amendment. Far more has it resided in the power of judicial review exercised by the Supreme Court, the product of which, and hence the record of the Court's achievement in adapting the Const.i.tution to changing conditions, is our national Const.i.tutional Law.

Thus is explained the attention that has been given in some of these pages to the development of certain of the broader doctrines which have influenced the Court in its determination of const.i.tutional issues, especially its conception of the nature of the Federal System and of the proper role of governmental power in relation to private rights. On both these great subjects the Court's thinking has altered at times--on a few occasions to such an extent as to transcend Tennyson's idea of the law "broadening from precedent to precedent" and to amount to something strongly resembling a juridical revolution, bloodless but not wordless.

The first volume of Reports which issued from the Court following Marshall's death--11 Peters (1837)--signalizes such a revolution, that is to say, a recasting of fundamental concepts; so does 100 years later, Volume 301 of the United States Reports, in which the National Labor Relations Act [The "Wagner Act"] and the Social Security Act of 1935 were sustained. Another considerable revolution was marked by the Court's acceptance in 1925 of the theory that the word "liberty" in the Fourteenth Amendment rendered the restrictions of the First Amendment upon Congress available also against the States.

In the preparation of this volume constant use has been made of "The Const.i.tution of the United States of America Annotated," which was brought out under the editors.h.i.+p of Mr. W.C. Gilbert in 1938. Its copious listing of cases has been especially valuable. Its admirable Tables of Contents and Index have furnished a model for those of the present volume. If this model has been approximated the contents of this volume ought to be readily accessible despite its size. The coverage of the volume ends with the cases decided June, 1952.

A personal word or two must be added. The Editor was invited to undertake this project by Dr. Ernest S. Griffith, Director of the Legislative Reference Service of the Library of Congress, and his constant interest in the progress of our labors has been a tremendous source of encouragement. To his able collaborators the Editor will not attempt to express his appreciation--they share with him the credit for such merits as the work possesses and responsibility for its short comings. And I am sure that they join me in thanking Miss Evelyn K.

Mayhugh for her skill and devotion in aiding us at every step in our common task.

Edward S. Corwin.

INTRODUCTION

It is my purpose in this Introduction to the _Const.i.tution of the United States, Annotated_ to sketch rapidly certain outstanding phases of the Supreme Court's interpretation of the Const.i.tution for the ill.u.s.tration they may afford of the interests, ideas, and contingencies which have from time to time influenced the Court in this still supremely important area of its powers and of the comparable factors which give direction to its work in the same field at the present time.

As employed in this country, Const.i.tutional Law signifies a body of rules resulting from the interpretation by a high court of a written const.i.tutional instrument in the course of disposing of cases in which the validity, in relation to the const.i.tutional instrument, of some act of governmental power, State or national, has been challenged. This function, conveniently labelled "Judicial Review," involves the power and duty on the part of the Court of p.r.o.nouncing void any such act which does not square with its own reading of the const.i.tutional instrument.

Theoretically, therefore, it is a purely juristic product, and as such does not alter the meaning. To those who hold this theory, the Court does not elaborate the instrument, as legislative power might; it elucidates it, bringing forth into the light of day, as it were, what was in the instrument from the first.

In the case of judicial review as exercised by the Supreme Court of the United States in relation to the national Const.i.tution, its preservative character has been at times a theme of enthusiastic encomium, as in the following pa.s.sage from a speech by the late Chief Justice White, made shortly before he ascended the Bench:

... The glory and ornament of our system which distinguishes it from every other government on the face of the earth is that there is a great and mighty power hovering over the Const.i.tution of the land to which has been delegated the awful responsibility of restraining all the coordinate departments of government within the walls of the governmental fabric which our fathers built for our protection and immunity.[1]