CONSTITUTIONAL LAW IN 1920-1921. I

THE CONSTITUTIONAL DECISIONS OF THE SUPREME COURT OF THE

UNITED STATES IN THE OCTOBER TERM, 1920

EDWARD S. CORWIN

Princeton University

The work of the court last term is chiefly notable for its amplification of certain important results of the preceding term. Thus, the final objection to the validity of the Eighteenth Amendment was refuted; the last great question touching the meaning of the word "income" in the Sixteenth Amendment was answered; the emergency powers of government in war time were brought into contact with more usual sources of public authority-this in the rent law cases; and some minor phases of the problem of freedom of speech and press were disposed of. However, in two cases, both of much interest to the political scientist, somewhat novel questions of national power were raised; and in neither was a certainly final solution offered. Questions of state power were again of decidedly subordinate significance and interest.

A. QUESTIONS OF NATIONAL POWER

I. REGULATION OF SENATORIAL AND CONGRESSIONAL ELECTIONS.

One of the two cases referred to above as of special interest to the political scientist was that of Newberry v. United States,1 in which the court set aside the conviction of Newberry, at present United States Senator from Michigan, and a hundred and thirty-four other defendants, for violation of section 8 of the federal Corrupt Practices Act of June 25, 1910. The act in question forbade any candidate for representative in congress or senator of the United States to give or cause to be given any sums in excess of certain designated amounts "in procuring his nomination and election." Five of the justices decided that the act, so far as it applied to the processes of nomination to office, exceeded the power of Congress in the year 1910, although Justice McKenna 1256 U.S. decided May 2.

reserved the question of the power of Congress under the Seventeenth Amendment, which has since been added to the Constitution. The other four justices asserted the power of Congress to govern nominations to the House of Representatives and Senate in the way attempted by the act, but were for setting the conviction aside on account of reversible errors in the trial judge's charge to the jury.

Justice McReynolds, in what is rather misleadingly called the "opinion of the court," bases his argument against the act upon three propositions: First, that the only possible source of the power claimed for Congress is Article 1, section 4;2 second, that the power thus conferred is the power to regulate the "manner of holding elections," not the power to regulate elections generally; third, that "election" in the sense of the Constitution means simply "the final choice of an officer by the duly qualified electors"-a proposition which is based on a careful collation of the passages of the Constitution in which the term is employed. That Congress may pass all laws "necessary and proper" for carrying its power to regulate "the manner of holding elections" into execution, Justice McReynolds of course admits; and as an instance of such a law he points to the Act of February 14, 1899, directing that voting for members of Congress be by written or printed ballot or by voting machine.3 But, he continues, even if it be "practically true that, under present conditions, a designated party candidate is necessary for an election-or preliminary thereto nevertheless his selection is in no real sense part of the manner of holding election. This does not depend upon the scheme by which candidates are put forward. Whether the candidate be offered through primary, or convention, or petition, or request of a few, or as a result of his own unsupported ambition, does not directly affect the manner of holding elections. Birth must precede, but is no part of either funeral or apotheosis."

Refutation of Justice McReynolds was essayed by both the Chief Justice and by Justice Pitney, the latter speaking also for Justices Brandeis and Clarke. "Why," asks Justice Pitney, plunging to the heart of the issue, "should 'the manner of holding elections' be so nar

2 "The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the place of choosing Senators."

For cases involving similar legislation, see Ex parte Siebold, 100 U. S. 371; ex parte Clarke, 100 U. S. 399; ex parte Yarborough, 110 U. S. 651; re Coy, 127 U.S.731; United States v. Mosley, 238 U. S. 383.

rowly construed?" It relates, he contends, not to a single isolated event, but to "a complex process," nothing less, indeed, "than the entire mode of procedure" by which the popular choice is finally arrived at-all of which is valid reasoning enough, even if not entirely persuasive. But a little later he shifts his position and, assuming the very point to be proved, namely, that Congress has the power to regulate elections generally, proceeds to argue that in view of their vital connection today, elections even in the sense of "the single and definitive step described as an election at the time" the Constitution was adopted, cannot be effectively regulated independently of the processes of nomination to offices, wherefore, under the "necessary and proper" clause taken in connection with Article 1, section 4, Congress may as to senators and representatives regulate both.

This clearly begs the question. The defect, however, is remedied when, passing from Article 1, section 4, he invokes the much broader power of the national government "to legislate through a Congress consisting of a Senate and House of Representatives chosen by the people, -in short, the power to maintain a law-making body representative in its character." He continues as follows: "The passage of the Act under consideration amounts to a determination by the law-making body that the regulation of primary elections and nominating conventions is necessary if the Senate and House of Representatives are to be, in a full and proper sense, representative of the people." In other words, he finally bases his case-and the same is true of Chief Justice Whiteupon what may be called the self-preservative powers of the government, although in this connection too he relies in part on the "necessary and proper" clause, remarking: "It would be tragic if that provision of the Constitution which has proved the sure defense of every outpost of national power should fail to safeguard the very foundation of the citadel."4

It may be argued perhaps, that the specific delegation of power made by Article 1, section 4, precludes the assumption of a broader power inherent in the national government. But the answer is that, in form, Article 1, section 4, is primarily a delegation of power, not to Congress, but to the states; and as both Chief Justice White and Justice Pitney point out, if Congress can not regulate the nomination and election of senators under Article 1, section 4, then, of course, neither can the states. Nor, Justice Pitney continues, can the states claim such power to be among their reserved powers. "The election of senators and representatives in Congress is a federal function; whatever the states do in the matter they do under authority derived from the Constitution of the United States. The reservation contained in the Tenth

Altogether, the merits of the question are somewhat divided. In his reading of Article I, section 4, Justice McReynolds remains unanswered and probably unanswerable. But his assumption that this is the exclusive basis of the power of Congress to enact laws touching the choice of senators and representatives seems untenable. The national government is after all the national government, with all that that imports; it is a government of the people, and it has the power to safeguard the purity of the wellsprings of its authority. It would be strange indeed if the government which is vested with the duty of guaranteeing a republican forin of government to the states could not adopt the measures which are necessary to guarantee itself the same kind of government.5

II. THE FEDERAL FARM LOAN ACT

There is an old saying about "the tail wagging the dog." It is well illustrated in the result arrived at in Smith v. the Kansas City Title and Trust Company," in which was sustained an act of Congress establishing

Amendment cannot properly operate upon this subject in favor of the state governments; they could not reserve power over a matter that had no previous existence; hence, if the power was not delegated to the United States, it must be deemed to have been reserved to the people, and would require a constitutional amendment to bring it into play,-a deplorable result of strict construction." Justice McReynolds, on the other hand, emphasizes the numerous points of contact of the national with the state government and the frequent dependence of the former upon the latter. But by way of comment, it should be pointed out that wherever this dependence exists it is specifically provided for by the Constitution. Chief Justice White seems to argue in one place that even if the act of 1910 was invalid when enacted, the defect had been cured by the subsequent adoption of the Seventeenth Amendment; but a careful examination of his language makes it probable that he was arguing only that the amendment should be regarded as interpretative of the original Constitution. The precise effect of the decision in the case at bar on the Corrupt Practices Act remains a matter of some doubt, especially in view of Justice McKenna's isolated position. It should be carefully noted, however, that the underlying principle of Justice McReynolds' opinion withholds from Congress not simply the right to govern nominations to the office of senator or representative in Congress, but all power concerning any of the preliminaries of the single definitive act of their election. 'Art. iv, sec. 4: "The United States shall guarantee to every State in this Union a republican form of government," etc.

255 U. S. 180. The case has some of the earmarks of a moot case, and Justice Holmes, in a dissenting opinion, in which Justice McReynolds concurred, contended that it was not one "arising under the Constitution or laws of the United States," within the meaning of section 24 of the Judicial Code, under which the

a system of banks for the purpose of loaning money to farmers on special terms and exempting them from taxation, federal, state, and municipal. One hundred years ago it was ruled in the famous case of McCulloch v. Maryland that the national government could incorporate a bank to act as its fiscal agent and exempt it from taxation, even though the capital stock of such bank was largely owned by private persons and its principal business was that of private banking; and this ruling was later availed of to justify the establishment of the national banking system, which quite recently was reorganized under the Federal Reserve Act of 1913. It was, however, alleged against the Federal Farm Loan Act, that far from establishing a fiscal agent for the government, with the functions of a private bank incidentally attached thereto, it did exactly the reverse. The court held, none the less, "that the creation of these banks and the grant of authority to them to act for the government as depositories of public moneys and purchasers of government bonds, brings them within the creative power of Congress, although they may (sic) be intended, in connection with other privileges and duties, to facilitate the making of loans upon farm security at low rates of interest."

The decision is beneficial, but rather insecurely grounded. The use made of the farm loan banks as fiscal agents of the national government is an obvious pretext, insufficient to hoodwink the fondest complacency. Nor is the court's answer that, "when Congress acts within the limits of its constitutional authority, it is not the province of the judicial branch of the government to question its motives," more than a technical evasion, since the question is whether Congress was acting within the limits of its constitutional authority. And in this connection we are reminded that in the very act of sustaining the national authority in McCulloch v. Maryland, Marshall gave warning that, "should Congress under the pretext of executing this power, pass laws for the accomplishment of objects not intrusted to the government, it would become the painful duty of this tribunal . . to say that such an act was not the law of the land." The court might have taken a somewhat broader view of the question raised by the Farm Loan Act. It might have considered the act, not

appeal was taken. Justice Day, speaking for the majority, answered with Marshall's definition of this phrase in Cohens v. Virginia, 6 Wheat. 264, 379: “A case may truly be said to arise under the Constitution or a law of the United States whenever its correct decision depends upon a construction of either." Justice Brandeis took no part in the consideration of the case.