Philadelphia Reflections

The musings of a physician who has served the community for over six decades

1 Volumes

Chapter Ten: Chief Justice Marshall and the Third Branch of Government 1797-1860

Chapter Ten: Chief Justice Marshall and the Third Branch of Government 1797-1860

The Supreme Court Arrives, A Little Late

{Privateers}
Jefferson

Thomas Jefferson became President in the country's fourth Presidential election; John Marshall was the fourth Chief Justice of the United States. These two Virginians hated each other personally, and each hated what the other stood for. Jefferson had been aboard when the Constitution was written, and when he came home it was too late to change it. But it didn't suit him at all, whereas Marshall devoted his whole life to strengthening it. The Constitutional System had evolved pretty far in sixteen years, except for the Supreme Court. From the Moment Marshall administered the oath of office to Jefferson, the war over the Court was on. Marshall was precise, concise, and implacably logical. Jefferson issued great clouds of uplifting rhetoric that were often hard to follow. People of those two personality types almost always detest each other.

{John Adams}
John Adams

By this time, it was becoming clear that minority rights were most effectively protected by confronting the party in power with the near certainty of being soon out of power, hence soon exposed to retaliation. The problem this solution generated was then how to maintain national stability when power was constantly shifting. Marshall's solution was to have a semi-permanent judicial system, with the power to overrule both President and Congress on fundamental, Constitutional, issues. It is not clear whether this concept had always been in his mind, or whether the experience of seeing his Federalist party swept out of office made him cast about to find ways to preserve their will. It now scarcely matters, since outgoing President John Adams had made a whole pack of "midnight" appointments as he left office, and Jefferson promptly tried to throw them out. That, in essence, is what the famous case of Marbury v. Madison, was all about. When the smoke cleared, Marshall had established that the Supreme Court could overrule the other branches of government if it could find support in the Constitution. And the Constitution largely means whatever the Supreme Court says it means. That was a bitter pill for Jefferson, who had proclaimed and campaigned on the principle that the will of Congress was supreme.

{Burr}
Burr

The other sweeping concept which Marshall introduced into our system of government was to transform the Supreme Court from a mere tribunal into a pulpit for announcing fundamental principles of law. His method was to decide cases on the basis of wide ranging constitutional principles when the same decision could have been made on narrow technical points. In the famous trial of Aaron Burr,, Marshall could quite properly have refused to hang a former Vice President just because Jefferson hated the man, especially since the main witness against Burr was a notorious liar and scoundrel. Instead, these features gave Marshall the cover to expose weaknesses in the constitutional definition of treason, which contained muddled thinking but vexingly specific language. One man's legal clarification is another man's legislating from the bench, of course, but the innovation was nevertheless Marshall's. By holding the lower courts strictly to the letter, this approach concentrated interpretative latitude in one place, where it cannot escape public notice. The European Union, struggling to match the American model, will be hard put to match this particular unwritten subtlety.


REFERENCES


American Sphinx:The Character of Thomas Jefferson Joseph J. Ellis ISBN-13: 978-0679764410 Amazon

Parliamentary procedure(2)

Cartoon Fight

Although Parliamentary procedure started out as a way of reducing the number of cracked skulls in an angry group of arguing ruffians, it mainly did so by demonstrating how much more you get done, when you argue courteously. It really does work better if you have more logic on your side. Orderly, a courteous procedure is best. Furthermore, one topic at a time is also best, achieved only if the guys with other topics are confident the group will eventually get to their topic in its turn. And if you know the referee is neutral, will not allow a vote to be taken as long as someone still wants to speak. Or when the group is tired of the argument, it still can't quit until both sides have been heard, and the negative votes have been called for and counted. What emerges from these simple rules is an amazing discovery of the collective will of the whole group. If a large group of strangers convenes to discuss a topic, following these rules it is seldom that any doubt emerges of the collective opinion of the group. Right or wrong, the opinion of the group.

{Privateers}
Shareholders

So if you want to determine what the medical profession thinks about abortion, or what the legal profession thinks about trial by jury, or what a whole nation thinks about going to war -- just choose representatives fairly, and let them conduct discussions according to Parliamentary Procedure. That's a democracy; that's a republic. That's a system many people have died to preserve.

However, during the 19th Century a different type of organization, the corporation, appeared. It gets things done, it makes prosperity, it is successful. But it has never adequately achieved a credible system for determining its own wishes. If every shareholder held one share and elected representatives democratically, the meetings of shareholders and directors might become little republics. But shareholders negotiate the price of their shares by bidding, and some people acquire many shares. If one person collects 51%of the shares, there is no further room for parliamentary dispute; the opinion of a majority of the shareholders is the opinion of one person. Because a corporation is a creation of government, it mirrors the process of government within what is called "corporate governance". We tend to follow the outward forms of parliamentary process even when in fact there is no substance to them. We thus can observe the amusing farce of the well dressed, well-mannered majority owner of a corporation -- smilingly and courteously listening to an angry shareholder with only one share, sometimes rising from the audience with a bull horn. Shout all you please, the man with the three-piece suit is going to have his way.

{Privateers}
Runnymede,King John,

But corporations have become so large and successful, that to raise adequate capital they sell thousands or even billions of ownership shares. In those situations, which very nearly run all that matters in the country, a shareholder of a fraction of one percent of the outstanding shares may be able to control the corporation. A dozen of such people can band together and act as though they own the company completely. Ownership through mutual funds or index funds makes shareholder control even more remote. Quite commonly the shareholders lose control entirely, and the hired managers exercise effective control. A system designed to determine the collective will of the shareholders thus eventually reaches the point where the will of the shareholders can be ignored by the people they hired. In effect, the number of voters and the number of shares has outgrown parliamentary rules and procedures, and in fact, continuing to use that format leads to mischief. The hired employees occasionally arrange for salaries for themselves of hundreds of millions, or they can turn the corporation into a private charity, or even ruin it as an economic entity by careless slothful management. The legal term for this process is "imperfect agency", and the country seems to be getting annoyed enough to want to make some changes. But if it is intended to determine the will of the owners, someone will have to devise an agreed way of finding out what the will of the owners really amounts to. If we don't, we are going to have to reconsider clubs, spears, and swords. Welcome to Runnymede, King John, we have a matter we wish to discuss with you.

Parliamentary Procedure (1)

{Privateers}
John Adams

The Constitution provides that the Vice President of the United States shall be the presiding officer of the Senate. Accordingly, during the Presidency of John Adams, from 1797 to 1801, Thomas Jefferson was the presiding officer of the U.S. Senate, down at 6th and Chestnut Streets. According to recent books by Ellis, McCullough and others, it must have been an exciting experience to preside over that particular Senate.

Just what was running through Jefferson's mind during that formative time of Senate procedure is largely left to conjecture. We hear it said that Senate debate was rambling, raucous, and sometimes physical. Since Jefferson himself was the most controversial person in the room, his rulings from the chair may well have been resisted. In any event, Jefferson proceeded to publish the first American Manual of Parliamentary Practice,

{Privateers}
Thomas Jefferson

patterned after the rules of procedure of the British parliament. An uncut copy of this book is still on the shelves of the Philadelphia Atheneum, a block away. Its contents can be summarized as sensible elaborations of two basic rules: the deliberative body only takes up one topic at a time (discussion of anything which wanders from that topic is ruled non-germane), and the rights of the minority are to be respected. Since America had just concluded an eight-year war with England, it is a little surprising that the behavior of the English Parliament would be considered something to imitate, and by Thomas Jefferson, of all people. It is vital for any deliberative body to have a set of rules, agreed in advance, about how to conduct debate and reach a conclusion. Controversy can get pretty heated at times, and it is then too late to be making rules which might favor one side or the other. Establishing rules in advance is if anything more important than what those rules say. Jefferson was thus quite right in publishing such rules, with the intention that the first act of any newly elected group would be to adopt the rules in the book as the agreed standard for whatever happens to come up later. The uncut version at the Atheneum is symbolic; you don't have to keep discussing procedure if the procedure is agreed.

{http://www.philadelphia-reflections.com/images/genrobert.jpg}
General Henry M. Robert

General Henry M. Robert wrote a revised version of Jefferson's rules in 1876, familiarly known as Robert's Rules of Order, which now govern the U.S. Congress. The main difference was to accommodate the creation of expert committees--on Ways and Means (taxes), Foreign Relations, health, etc, as the business of Congress grew more complex, and Congress met for longer and longer periods of time. Roberts Rules have thus become a special-purpose rule-book, and bodies like the American Medical Association or the American Bar Association, which meet for short periods yearly, find it more appropriate to substitute the use of "reference" committees. A reference committee is sort of a jury, intended to be a representative sample of the larger body, which is selected by the presiding officer to sort out a large amount of business and facilitate debate by the larger group as a whole. A reference committee system is better addressed by rules of order written by Mrs. Sturgis or Dr. Davis, than the more famous one by General Robert.

Underlying these seemingly dry technical issues is the struggle of an overburdened large group

{http://www.philadelphia-reflections.com/images/AMA.jpg}
AMA

to learn what its own collective opinion is, and to see that it is properly stated. As the agenda grows, it is necessary to designate smaller reference committees to hear testimony and present it fairly to the full convention when it assembles later. The referenced committee makes recommendations, but the full body reserves the decision to itself. In this way, the American Medical Association can make several hundred complex decisions in a week, almost universally recognized as representing the current opinion of the whole Association. Every few years, a decision is reversed, but remarkably seldom .

Eventually, a complex agenda grows to the size where a deliberative body must delegate a certain amount of power to experts, and the

http://www.philadelphia-reflections.com/images/uscongresspa.jpg
U.S. Congress

U.S. Congress is well past that point already. It must consider an average of 25,000 bills per session. The typical state legislature considers an average of 10,000 bills; without a set of rules, nothing can be accomplished within such an overburdened agenda. No one surrenders power easily, and Congressmen are correct to insist that a republic elects the specific people it wants to see making the decisions, and lets them organize their own process. Therefore, General Robert describes the intentionally obscure rules which have evolved to govern the delegation by the elected members, of specific matters to specific committees of its own members. To put it bluntly, some handsome extrovert who happens to have got himself elected to Congress can be assigned to some unfamiliar topic and expected to learn what it is all about, with his power constrained until he does. Rule by seniority makes a lot of sense in such a situation, although obviously, some learn faster than others. Accordingly, the deliberative body must have rules which assist the process of weeding out chairmen who acquire seniority faster than they acquire expertise, while at the same time sympathizing with the difficulties all members regularly experience, publicly thrust into unfamiliar topics. Most smaller deliberative bodies do not need the rules which Robert's have evolved to manage seniority difficulties without opening the gates to ruthless power manipulators, unfortunately, but commonly an over-represented group in politics.

Woodrow Wilson

http://www.philadelphia-reflections.com/images/ww28.jpg
Woodrow Wilson

made himself a student of these arcane matters, and approved of the idea that, "Congress in Committee, is Congress at work" In recent decades, he would surely have been upset to see the degree to which the power of unelected experts has grown, at the expense of the power of home-made experts who none the less have been elected to exercise power in a general sense. The elected but amateur experts are in a constant struggle with experts provided by special- interest lobbyists, and experts in the bureaucracy who are provided by politicians in the executive branch. Lately, the executive branch is winning, and Congress had better look to its rules.

In this way, we begin to see how Parliamentary rules are different from Parliamentary procedure, although each influences the other. Parliamentary procedure is now a highly stylized, fast-moving game, greatly enjoyed by practiced players. Quick shots are applauded, and bumbling by presiding officers provokes instant indignation. Failure to call for votes in the negative was outlawed in 1604, there's no excuse for doing it this afternoon. Failure to call for debate of a proposal is an oversight too gauche to endure. Raucous "calling for the question" is as rude a form of behavior as taking off your shoe and pounding it on the table. Don't expect to get anywhere if you do things like this within an experienced group of players.

Now, modifying Parliamentary rules is something else. Changing or deliberately violating the rules of an organization is something only experts attempt, and usually with evil intent. Politicians sometimes can't be trusted with their own rules. The citizenry will be very sorry if, at a bare minimum, at least members of newsmedia editorial boards don't get more sophisticated about parliamentary rules, instantly sensing that something is up when someone wants to "modernize" them. The most egregious proposals of all are the ones which blandly propose to "bring the rules into conformity with current practice." Reflecting on such purring argument for a moment, it emerges that someone has been violating the rules for some time, and wishes to be condoned for it.

In one very important respect, Parliamentary procedure is accidentally mismatched to our legislative system. We elect a President or a Governor or a Mayor for a set period of time, and only remove him from office for egregious misbehavior, and in the case of Presidents only once in our history. In a Parliamentary system of government, by contrast, every Prime Minister expects to be removed by a vote of lack of confidence, which is a possibility every single day he is in office. The strategy of springing a trap could well underlie every proposal or budget measure; every move by the opposition could turn out to be a move in a chess game whose goal is to overturn the government. Consequently, Parliamentary debates are remarkably snide and uncivil in a Parliamentary system; no one dares to give an inch. In the American system, disorderly and mean-spirited remarks by the opposition are simply a nuisance, best ignored by the party in control. After two hundred years, our own legislative bodies have been slipping back a little into the savage reckless language heard in Parliaments abroad. Since the most important unwritten word in the Constitution is "compromise", one looks forward to the day when the voting public inflicts an unmistakable punishment for legislative intransigence. As Winston Churchill once growled, it's "Half foreign, and thoroughly reprehensible."

Owen Roberts: A Switch in Time

{Privateers}
Owen Roberts

To this day, no one knows quite what to make of Owen J. Roberts, founder of one of Philadelphia's largest law firms. He was Prosecutor of the Teapot Dome scandal, Dean of the University of Pennsylvania Law School, Republican appointee to the U.S. Supreme Court. But then, he abruptly became the source of one of the most radical revisions of our system of government since the Declaration of Independence. Nothing in his prior career and nothing afterward in his subsequent civic-minded retirement from the Court seemed to suggest any radical turn of character had taken place. He has been compared with a famous baseball pitcher who threw right-handed or left-handed at will, unexpectedly, capriciously, who knows why.

The issue went far beyond one clause in the Constitution, but the commerce clause was the focus point. Under the limited and enumerated powers allowed to Congress by the Constitution was :

The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

That used to be called the interstate commerce clause until the Supreme Court announced its decision in the case of Wickard v. Filburn. When linked with the Tenth Amendment, granting to the States the power to regulate everything not specifically granted to the Federal government, this clause in the Constitution was universally taken to mean that the States had control of commerce within their borders, while Congress would control interstate commerce. Wickard v. Filburn took all that power from the states and gave it to Congress, which henceforth would regulate commerce. John Marshall had certainly triumphed over the hated state legislatures, but the Supreme Court suddenly lost its power to overrule Congress, too. One side had won the old argument, by silencing the umpire. No wonder Franklin Roosevelt started annual celebrations called Jefferson-Jackson Day dinners.

To describe the background: The 1929 stock market crash was quickly followed by the economic Depression of the 1930s. Nothing of this magnitude had been seen before, and there was a stampede to try new and untested solutions. Even government action which actually worsened economic conditions was felt justified if it conveyed to the frightened public the image that its leaders were taking firm action. Since Socialism and Communism were among the solutions grasped for, many unfortunate actions were felt justified as a way to control the Bolshevik threat. Many of these New Deal actions were declared unconstitutional by the Supreme Court since they involved sweeping revisions in the way all commerce, internal to the States as well as interstate, was conducted.

The Depression and financial panic continued through the 1936 Presidential election, which Roosevelt won in a landslide. Immediately after the start of the new term, he announced a plan to increase the number of Justices on the Supreme Court, appointing new ones more to his liking. He was at pains to point out that seven of the nine life incumbents had been appointed by Republican Presidents. This was, of course, the restraint intended by the Constitutional Convention, and the idea of packing the Court with new appointees was exactly what Jefferson and Jackson had tried to do.

{http://www.philadelphia-reflections.com/images/955pres10.gif}
Franklin Roosevelt

In the meantime, the case of Filburn, a dairy farmer, came up. One of the New Deal agencies had assigned him a quota of 200 bushels of wheat he could grow on the side, as part of an effort to raise wheat prices by reducing supply. Filburn had raised 400 bushels, but consumed the extra wheat for his own personal use, hardly a matter of interstate commerce. The Court had repeatedly declared laws like this to exceed the interstate commerce limitation and were thus unconstitutional for the Congress to enact.

Well, Owen Roberts changed his position, Filburn lost his case. Forever afterward, this change of position was referred to as the switch in time, that saved nine. Since that time, the Court has rarely had the courage to rule any action of Congress unconstitutional, even though it is true that Congress promptly and resoundingly rejected the court-packing proposal.

And furthermore, the power of the state legislatures has shriveled because all commerce (except insurance and real estate) is federally regulated, with a corresponding vast increase in the size of the Federal bureaucracy, as Congress relentlessly pushes to intervene in commerce among the several states, formerly known as the Interstate Commerce Clause. Franklin Roosevelt had a certain right to gloat at Jefferson-Jackson Day dinners.

A few weeks before he died, Owen Roberts had all his papers burned. Apparently, we will never know whether the present outcome was the result he had in mind. Since he was later the author of Alfred Barnes' will, which strenuously sought to prevent the transfer of the Barnes art collection to Philadelphia County, anything written by a lawyer can apparently be reversed by other lawyers. One would have supposed that either the Original Intent would govern, or else the opinion of the Supreme Court on what the Constitution means, would prevail. Franklin Roosevelt showed us there is a third possibility: the President can overrule the Court by intimidating it.

Quakers From the Indian Point of View

{William Penna and indians}
William Penna and Indians

The following property of the Nicholson family has been presented to the Haddonfield Friends Meeting in replica form. Although signed by John Haines, it is not readily apparent why this member of a very old New Jersey Quaker family was being addressed, just what it means that he signed it, or possibly whether John Haines was a name adopted by Corn Planter. Very likely, however, Haines was acting as public scribe, a common profession in all illiterate societies. As a matter of fact, there have been so many Joseph Nicholsons that it takes some tracing to identify just which one he was, too.

------------- To the Children of the friends of Onas, who first settled in Pennsylvania:

The request of the Corn Planter a Chief of the Seneca Nation --

Brothers, The Seneca Nation see, that the greater Spirit intends that they shall not continue to live by hunting, and they look round on every side and inquire who it is that shall teach them what is best for them to do. Your fathers have dealt fairly and honestly with our fathers, and they have charged us to remember it and we think it right to tell you, that we wish our Children to be taught the same principles by which your Fathers were guided in their Councils.

Nicholsons

Brothers, We have too Little wisdom among us, we cannot teach our Children what we perceive their situation requires them to know, and we, therefore, ask you to instruct some of them -- we wish them to be instructed to read and to write and such other things as you teach your own Children, and especially to teach them to love peace.

Brothers, We desire of you to take under your care two Seneca boys and teach them as your own, and in order that they may be satisfied to remain with you and be easy in their minds that you will take with them the son of our interpreter and teach him also according to his desire.

Brothers, You know that it is not in our power to pay you for the education of these three boys, and therefore you must, if you do this thing look up to God for your reward.

Brothers, You will consider this request, and let us know what you determine to do -- If your Hearts are inclined toward us, and you will afford our Nation this great advantage, I will send my son as one of the boys to receive your instruction and at the time which you shall appoint.

Signed February 10. 1791 -- in the presence of Joseph Nicholson

his Corn X Planter Mark

John Haines

The Supreme Court Gets Fed Up With Professors

{Supreme Court}
Supreme Court

In March 2006, years later, the Supreme Court, like a sleeping alligator, suddenly clamped its jaws on the whole Ivy League. Unanimously and without explanation, the Court told Universities they could not block the U.S. Armed Forces from recruiting on their campuses. A number of Ivy League Universities, in this case, the Yale Law School, had turned away Army recruiters because the Professors were offended by the Army's "don't ask, don't tell" policy on homosexual soldiers. The Supreme Court didn't even consider the reasons for the University's' policies, although private opinions of the Court conservatives could readily be imagined. The Court would not even dignify the matter with the thunderous phrases about first principles which otherwise might have seemed tempting. The Chief Justice signed the order, the Court unanimously agreed, and that's as final as you are going to get, for a show of power.

About a month earlier, things had seemed to be going the other way. The Harvard Faculty had forced out their president, Lawrence Summers because he violated their idea of politically correct speech. Quite significantly, two-thirds of the students took the side of Summers in the dispute, a warning that the faculty was getting itself into an isolated position. And if you look back, the nation had divided when it twice elected the younger George Bush, support for East Coast urban elitism was likely coming to the end of a fifty-year dominance of American life. Not to put too fine a point on it, the country was getting tired of the bitter-end Vietnam War protesters, now entrenched in academic strongholds like Robert the Bruce. It may well be that the country was irked by expensive gasoline, French disloyalty, and Middle East intransigence, while the Legal profession was having a private quarrel. Clever of the Chief Justice to allow people to think what they pleased. The Constitution directs the Armed Forces to defend us; interfering with recruitment is at best impertinent, at worst imperils the nation.

The Supreme Courts of the various states and the U.S. Supreme Court within the federal court system retain the power of administration of all the courts which report to them, but they rarely exercise that power actively. As the number of judges has increased significantly in the past thirty years, public oversight of the selection or election of judges has been stretched to the vanishing point. The result has been a strengthening of political control over the courts, a lessening of the quality of the judges themselves, and a growth of the influence of law schools. The same parade of professors keep appearing as friends of the court, the metropolitan newspapers can always count on them for Op-Ed pieces on difficult topics. Their opinions begin to surface as their graduates start to enter law practice. Slowly and relentlessly, the viewpoints of faculty members of the five prestige law schools have come to challenge, and sometimes to up-end, the rigidly organized opinions, right or wrong, of judge-made law. When it reaches the point where law schools can blithely block the ability of the armed forces to defend the country from foreign attack, it is past time to do something about it.

Some things never change. But this is going to change, and soon.

New York Times: Splendid Idea for Old Age

The New York Times devoted an entire issue of its Sunday News of the Week in Review on April 7, 2019, to variations of the theme that "Elderly People Have Surplus Spare Time." Although I have several personal connections with the editors of the Times by marriage, and other connections to the newspaper through Columbia's College of Physicians and Surgeons, I seldom agree with its New Yorkerish hunt for evil from greedy enemies. But this particular attack struck me as right on the mark. Sympathy with downtrodden unions has led to commercial forces preferring fragile cheap products needing to be replaced when broken, discouraging home repairing and the ultimately of the population's ability to repair. At the same time, a lot of old folks have time on their hands and limited opportunities to supplement their retirement income, even ultimately leading to the disappearance of the needed skills to make simple repairs. The Times doesn't suggest the two unfortunate curable ends of the Industrial Revolution could cancel each other out, but it seems to me they might fit if coaxed.

Apple seems to be the biggest offender, substituting unnecessary cheap electrical connectors for successive versions of expensive machinery. When you need to replace a thousand-dollar computer for its broken ten-cent plastic connector, the commercial motive is obvious to the consumer, and pretty annoying, too. A broken plastic connector isn't worth its twenty-dollar markup, but the expensive computer would justify its connector markup, which ultimately becomes a one-dollar markup for a Chinese imitator. The situation in the computer industry was explained to me in person by Michael Dell. When he had his nineteenth birthday, his mother gave him an expensive IBM portable computer. He took it to his bedroom with a screwdriver and found that not a single component was actually manufactured by IBM. He wrote each individual manufacturer for prices and discovered he could make an imitation (but identical) computer, selling it profitably and ultimately driving IBM out of the portable computer business. Substituting Chinese names for Michael Dell you get quite a different story, which paints quite a different description, about excessive markups by greedy Americans. Nevertheless, the moral I draw is the ultimately self-defeating nature of excessive markups, for commercial unfair motives. Smaaart when you reveal them to friends, but unwise, in the long run.

But buried in all this petty maneuvering is a solid truth. We once had a population which took woodshop in the seventh grade and metal shop in the eighth. for boys. And the girls were learning how to cook and sew in separate rooms. This system needs a little updating, but the point is that these abbreviated courses were adequate to teach the essentials of home repairing to whole generations of the population. You wouldn't need to buck the unions, who proved able to destroy the whole vocational school system of fresh competitors, in order to restore simple home repair to the whole population. The old retired folk could repair the broken plastic widgets in their simple lives. The ladies could cook a little instead of continuing plastic-wrapped dinners they now have more than enough time to play around with. Hardware stores would reappear to satisfy the need for widgets. And the retirees wouldn/t need to sit around for lack of simple things to do. It's a brilliant idea, even if it did come from the New York Times.

Owen Roberts

To this day, no one knows quite what to make of Owen J. Roberts, founder of one of Philadelphia's largest law firms, Prosecutor of the Teapot Dome scandal, Dean of the University of Pennsylvania Law School, Republican appointee to the U.S. Supreme Court. But then-- the source of one of the most radical revisions of our system of government since the Declaration of Independence. Little in Roberts' earlier career seemed to lead up to this action, and nothing in his subsequent civic-minded retirement from the Court seemed to indicate any particularly radical turn of character had taken place. He has been compared with a famous baseball pitcher who threw right-handed or left-handed at will, and unexpectedly, capriciously, who knows why.

{http://www.philadelphia-reflections.com/images/955pres10.gif}
Franklin Roosevelt

The issue went far beyond one clause in the Constitution, but the commerce clause was the focus point. Under the limited and enumerated powers allowed to Congress by the Constitution was :

The Congress shall have the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

That used to be called the " Interstate Commerce clause" until the Supreme Court announced its decision in the case of Wickard v. Filburn. When linked with the Tenth Amendment, granting to the States the power to regulate everything not specifically granted to the Federal government, this clause in the Constitution was universally taken to mean that the States had control of commerce within their borders, while Congress would control interstate commerce. Wickard v. Filburn took all that power from the states and gave it to Congress, which henceforth would regulate commerce. John Marshall had triumphed again over the hated state legislatures, but the Supreme Court had suddenly lost much of its power to overrule Congress, too. One side had won the argument, by threatening the umpire. The umpire came away less powerful, too. No wonder the jaunty Franklin Roosevelt started annual celebrations called Jefferson-Jackson Day dinners. All three presidents disliked the Supreme Court intensely.

{http://www.philadelphia-reflections.com/images/CENTURY-DEPRES.jpg}
Depression of the 1930s

To describe the background, the 1929 stock market crash was quickly followed by the economic Depression of the 1930s. No financial panic of this magnitude had been seen before, and there was a political stampede to try new and untested solutions. Even government action which actually worsened economic conditions was felt justified if it conveyed to the frightened public the image that its leaders were taking firm action. Since Socialism and Communism were among the solutions being toyed with by the public, many unfortunate actions were felt justified as a way to control the Bolshevik threat, by pre-empting its promises. Many such New Deal actions were declared unconstitutional by the Supreme Court since they involved sweeping federal revisions in the way all commerce, internal to the States as well as interstate, was conducted.

The Depression and financial panic continued through the 1936 Presidential election, which Roosevelt won "in a landslide". He took this election to mean the public would support him in anything. Immediately after the start of his new term, Roosevelt announced a plan to increase the number of Justices on the Supreme Court, appointing new ones more to his liking until he achieved a majority. He was at pains to point out that seven of the nine life incumbents had been appointed by Republican Presidents. This was, of course, the restraint intended by the Constitutional Convention, almost immediately faced by Thomas Jefferson in John Marshall's court. The idea of packing the Court with new appointees was exactly what Jefferson and Jackson had tried to do. In the meantime, the case of Filburn, a dairy farmer, came up. One of the "New Deal" agencies had assigned him a quota of 200 bushels of wheat he could grow on the side, as part of an effort to raise wheat prices by reducing the supply of it. Filburn had raised 400 bushels, but consumed the extra wheat for his own personal use, hardly a matter of interstate commerce. The Court had repeatedly declared laws like this to exceed the interstate commerce limitation and were thus unconstitutional for the Congress to enact.

Well, Owen Roberts changed his position, and Filburn lost his case. But public outcry was resounding, so Congress overwhelmingly defeated Rosevelt's court-packing proposal. Although the Court would thus have won its struggle with the Executive branch if it had remained steadfast, Interstate commerce became All-commerce by the declaration of its most dedicated opponent. Forever afterward, this change of position was referred to as "the switch in time, that saved nine." and the cuteness of that cartoon caption obscured that Roosevelt had been dealt a public slap in the face. Nevertheless, since that time, the Court has rarely had the courage to rule any action of Congress unconstitutional. Furthermore, the power of the state legislatures has shriveled because all commerce (except insurance and real estate) is regulated out of the District of Columbia, with a corresponding vast increase in the size of the Federal bureaucracy, as Congress relentlessly pushed to intervene in commerce. One important footnote to this uproar was that the insurance industry was intensely displeased with the prospect of federal regulation, and within six weeks lobbied through the McCarran Ferguson Act, restoring the "business of insurance" to state regulation. This act skirted the confrontation between Congress and the Supreme Court by prohibiting federal agencies from engaging in insurance regulation, although the pretense was maintained that the executive branch was free to regulate if it could invent a way to do it.

A few weeks before he died, Owen Roberts had all his papers burned, So, we will never know whether all this uproar was the result he had in mind.

 

Please Let Us Know What You Think

 
 

(HTML tags provide better formatting)
 

8 Blogs

The Supreme Court Arrives, A Little Late
The third branch of government took a generation to establish its place, and John Marshall made it happen. If you love the Supreme Court, you probably hate Thomas Jefferson.

Parliamentary procedure(2)
Parliament once was the model for civil discourse, but the corporate model supplanted it. Now, it's all the lengthened shadow of one man, the CEO. King George III learned what happens when you annoy Americans with that style.

Parliamentary Procedure (1)
Presiding over the Senate at Sixth and Chestnut, Vice President Thomas Jefferson observed pretty earthy behavior. So he wrote a book praising the rules of the British Parliament. Things must have been pretty bad if he, of all people, chose that model.

Owen Roberts: A Switch in Time
His old law firm devotes a reception room in his name, but not everyone is pleased with his writing the documents establishing the Barnes Foundation, or his capitulation to Franklin Roosevelt's threat to pack the US Supreme Court.

Quakers From the Indian Point of View
The Iroquois were fierce warriors, but they could see they would need better education to survive in a new world.

The Supreme Court Gets Fed Up With Professors
The interpretation of American law belongs to Judges, not to law schools, and administration of the courts is controlled by the U.S. Supreme Court. Period. What the two subjects have to do with each other was not explained, but Washington DC has a way of circulating rumors. The opinion was a warning.

New York Times: Splendid Idea for Old Age
New blog 2019-04-09 16:12:52 description

Owen Roberts
His old law firm devotes a reception room to his name, but not everyone is pleased with either his writing the documents establishing the Barnes Foundation, or his capitulation to Franklin Roosevelt