The New Star Chamber and Other Essays Elect the Federal Judges
by Edgar Lee Masters
One of the great political parties has already taken a conventional stand in favor of electing senators by a direct vote of the people. This question when recently brought to an acute point of discussion was met by Senator Lodge of Massachusetts by an astonishing objection. It was that the election of senators by the people would destroy the constitutional theory of senators as representing states. The essence of his objection, if he were correctly reported, consisted in regarding the senators as "Ambassadors of the states," which their popular election would un-character. It cannot be perceived how the manner of their election by a state would make them less the representatives of the state as such. But this objection made by an exponent of the school which has taught that the constitution was the product of the people of America, and not the people of the states of America seems incongruous.
A reform of equal, if not indeed of deeper moment, is the election of the members of the Federal judiciary for terms of moderate length. The reasons which were urged in favor of a Federal judiciary appointed for life were long ago discovered to be pretentious and unsound. The Federal courts have for so long a time pursued a course of systematic usurpation that doubt can no longer be maintained against the accumulating proof that these tribunals are today among the greatest enemies of justice and liberty.
Hamilton, in the 78th number of the Federalist made an examination of the constitutional provision for the Federal judiciary. He concluded that the judiciary was the weakest department of the government because it held neither the purse nor the sword; that it had neither force nor will, but merely judgment; that it could never attack the executive or legislative branches of the government; that the general liberty of the people could never be endangered by the judiciary. These are very sweeping declarations, which their author was content to express without demonstration of any sort. To what extent need they be respected? The Supreme Court may validate or invalidate revenue laws. Through custom and according to the suppositious logic of the constitution, as maintained by Hamilton himself in the Federalist, the Supreme Court has the power to construe the constitution with reference to any particular law, and to hold the latter void if repugnant to the constitution. But whether the law is so repugnant rests in the judgment of the Supreme Court to decide; and therefore, what that court says the constitution imports is the ultimate and unappealable formation of the constitution itself. Construction, therefore, of the constitution relating to appropriations relates to the purse itself, to which extent the court does hold the purse. While the court has altogether successfully protected what Hamilton called the property of the country. The inferior Federal courts may, and repeatedly have, done the same thing. And this is in no artificial sense a holding of the purse also.
The legislative and executive branches of the government are attacked when the court overthrows legislation which those branches have enacted. Their powers are utterly prostrated when they can no longer perform their functions. They are subdued to the "force and will" of another mind when what they choose to call the law is declared by the Supreme Court to be void and no law. The general liberty of the people is not only endangered but infringed upon by this course; and as historic fact this has occurred repeatedly. A system which begets in the popular mind, and to a degree in the legislative mind, the idea that a judgment of the Supreme Court between private parties is a rule of political action to which the country must settle down to tolerate, is pernicious beyond expression. So much nevertheless for theory respecting the character of these courts. It is proper to refer to Hamilton's arguments in the Federalist upon these subjects because they were addressed to the people of the United States at a time when grave doubts were entertained of certain features of the constitution which these arguments had a tendency to quiet. And because since his day nothing further of moment has been advanced in favor of the appointment of Federal judges for life.
Experience has demonstrated that the theory is wrong. The Federal courts today have few friends among impartial thinkers familiar with their practices; and abhorrence of them as the merciless and willing tools of special privilege is fast gaining ground.
Hamilton thought the people should have no voice in the making of Federal judges. If this matter should be committed to the people "there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the constitution and the laws." Let us see, then, what power outside of people can create these Judges. The president, according to the original theory, was to be elected by electors, the latter being generally chosen by the legislators. Now the legislators have always been chosen by popular vote, and so their temper and character depend upon the people from whom in fact they come. The electors were taken from the body of the people by the legislature, and these chose the president. How is it then that men competent to choose those upon whose choice depends the president, who appoints the judges, cannot directly choose the judges themselves? In the choice of judges, what indeed becomes of those select bodies known as the legislatures and the electoral college which, though of aristocratical standing, for the purpose of selecting the executive, have no will in the matter of selecting the judges? As to the senators, they are the creatures of legislatures which are the creatures of the people. It is a fallacious doctrine which attributes more rightful power to agents than the principals are alleged themselves to possess. The scheme of appointment of Federal judges by the president and the senate is conceived in distrust of human nature; and yet neither the president nor the senate is distrusted in the selection, and the judges when once installed are trusted to the utmost limit upon the ground that they need not reckon with the passions of the populace. The Federal courts are the fit product of such reasoning as this. As they are placed beyond the reach of the people they may successfully despise the wishes of the people both when they run counter to and when they run parallel with the constitution itself. They are the creatures of plutocracy and with few exceptions uniformly obey its mandates. So far then from being that body of ideal independence which a dissembling doctrine has made them out they have been slavishly attentive not to popular rights but to special privilege. It has been said that these courts follow the election returns, and if so the manner of their appointment and the tenure of their office have not made them independent. If so they do sometimes consult popularity instead of the constitution. But deeper consideration of the question will show that they do not always bow to the paramount party and that their apparent regard for the popular will is generally a regard for the will of plutocracy.
The judiciary so far as points of comparison exist is the strongest branch of the government. While the legislative power is in abeyance at intervals the judicial power never sleeps. It continues to accumulate the lex non scripta, by applying its own reason to facts as they come up and by filling up the interstices of the constitution with cement from the Bastile and the Tower. It may furnish laws for the executive to faithfully execute by issuing injunctions which the military may be called on to enforce. Thus the judges in no unscientific sense make the law. A line is drawn between making and interpreting the law; and while courts may not make the law they declare it. But before the law can be declared it must be ascertained, and its ascertainment involves a strong admixture of legislative action. Thus, to say that the judicial department is the weakest branch of the government, that it only interprets the law and does not make the law, is a plain overlooking of practical experience. That the judiciary should be created to be and to remain independent is well enough. But to make the judges independent of the people is something else. There is such a contrast between the refined idealism of the constitutional construction of the judiciary and the sordid use to which it has put itself that the suggestion is inevitable to give this human institution a human birth. The people have the practical and philosophic right to directly elect Federal judges, because they interpret and practically enact a large body of the laws which determine the rights and remedies of the people. The world has grown too practical to longer believe that any divinity hedges the judicial department of either the state or the Federal government. We are too far distant from the time when judges were the viceregents of the royal personage to be much affected by the attempt to perpetuate the atmosphere of royalty. There is no more reason for the judiciary to be independent than for the legislature or the executive to be independent; and there is no more reason to make it independent by appointing the judges for life than to make the executive or the Congress independent by appointing the executive or the Congress for life. The three departments of the government stand on a precise equality with reference to the end to be attained, and the means to attain those ends. The end of legitimate government is the establishment of justice. In the last analysis this depends upon the individual moral man. The fact that the man is independent of the people does not make him moral. If, when he becomes a judge he is moral he may become unjust by insidious influences and by a sense of absolute power, which make resistance to such influences unnecessary, except for the integrity of his own mind, an ideal not always strong enough for the purpose. The fact, however, that the man is made a judge by the people does not make him moral. In the latter case, though, if he turns out to be an enemy of liberty, the people have the remedy of putting him out of power, so that he may not be for his whole life an instrument of evil and tyranny. An elective judiciary which submits to popular impulse (e. g., which in doing so violates the law of justice) is no worse than a president or Congress which does so. The results are no more disastrous. Where the power is in the people to speedily correct their mistakes they may and frequently do correct them. Where mistakes are made by an absolute department of the government there is no remedy except that slow reformation in which either the excitative occasion of the evil passes away, or in which the minds of the wrong-doers become amenable to better influences or new powers take the place of the old. The truth is, however, that so-called popular impulse is neither so frequent nor so dangerous as anti-republican alarmists have made out. It is not so much to be feared or warded against as those studied and incessant machinations done in secret against justice and liberty by those who wish an absolute judiciary to keep down great reactions of the people produced by wrongs long endured. Whatever makes for injustice, whether through popular impulse or through secret encroachment, should be avoided. But it is an unphilosophic if not dishonest system, which so far takes account of popular impulse as to give secret encroachment the absolute mastery of the situation. Whether for good or for evil the people have the undoubted right to directly control the selection of the Federal judges, both for the supreme and inferior courts. This is not the same thing as the rule of the majority right or wrong; but if it were, the principle which justifies popular control as to any branch of the government from the necessity of the case justifies it as to all departments. There is no higher rightful power than the people in this or any other government. A few men who have become empowered to create the incumbents of one department of the people's government, will not be attentive to the general interest in their selections. Each appointment of a Federal judge has shown that the questions considered were politics, and the influence of railroads or other corporations. Men of learning and ability have not been appointed because they were men of learning or ability, but because first and chiefly they have leaned toward special privilege or that economic philosophy which unjustly distributes the wealth of the country, or seeks to keep it so distributed. The independence which the Federal judiciaries have manifested is a mere absolutism in favor of plutocracy, with a fearless disregard of what the people think or desire. They have shown no greater judicial ability than the state judges, outside of a few distinguished exceptions; while their stability has consisted in adhering to the interests of their creators in further consideration of distinguished favors and social attentions from those who control the wealth of the land. If the Supreme Court or the inferior Federal Courts may invalidate an act of Congress, a state constitution or a state law, or if it may, as recently suggested, even assume to invalidate an amendment to the Federal Constitution itself because not constitutionally passed, it follows that it is the ultimate and most powerful body in the structure of our government, and that its members ought either to be elected by the people for terms of moderate length, say six years, or else it should be deprived of the power to sit in judgment upon the validity of these acts of the people. The danger to free institutions from these extraordinary powers cannot otherwise be avoided. It is a novel system under which the people may exert their whole energies to place in power a Congress to pass a particular law conceived by the people to be needful, only to have the law when passed set aside by the vote of one man, that is, by a vote of five to four in the court. And it is the more novel when it is considered that the people who ratified the Federal Constitution did not directly confer the power. It has been derived through the adjudication of the very court which exercises it. The necessity for the power was determined by the court which uses the power. Thus, to determine the necessity for the power to be in the court, which so determines and uses the power, and to use it to overthrow the legislative will are not acts of the weakest branch of the government. In theory the Constitution is the direct expression of the people themselves and an act of Congress is the representative expression of the people. But the sequence to these propositions is not that the Supreme Court may authoritatively say when the law conforms to and when it conflicts with the Constitution. That power ought to be expressly conferred upon the court to be exercised by it, and not metaphysically deduced by the court, which assumes this supreme function.
Even the interpretation of the law does not extend to the invalidation of the law. The court could give its opinion that the law is unconstitutional, as the attorney general frequently does, and this would be interpretation. The Congress very frequently considers the constitutionality of proposed legislation before passing upon it, and this is interpretation. The English courts interpret the law, but they may not invalidate an Act of Parliament. The invalidation of an act of congress is something more than interpretation; it is the binding judgment following interpretation. What would have been the consequence if the Supreme Court at the beginning had adopted the practice of giving its interpretation instead of its judgment upon the theory that the several branches of the government are independent, and that it is no more the guardian of the Constitution than either of the other branches? Manifestly in due season the sober intellect of the country would have enforced the repeal of unconstitutional legislation; or if not, would the final result have been worse than the revolutionary judgments which the Supreme Court has rendered at intervals of time, such as McCulloch vs. Maryland and Downes vs. Bidwell? Have not the bulk of these decisions, which invalidated national laws, state laws and municipal ordinances, led straight to the intrenchment of special privilege? Have not the several clauses of the Constitution restraining state action been construed to cripple the people in their defense against organized wealth? If the Supreme Court judges had been responsible to the people at large every six years would they have been favorable to special interests? Out of the historic origin of courts as the emanations of royal authority, out of the maxim that courts interpret the law, out of the axiom that a lower law is less law than a higher law has grown the dangerous system that the Supreme Court ought to be independent of the people and revered as a sacred fountain of authority, and may solely adjudge the invalidity of a law; and that such a judgment even in a suit between private parties becomes a rule of political action. A people which pretends to be free and self-governing may well wake up to the necessity, and for these reasons alone, of placing the Federal judiciaries, both supreme and inferior, under popular control.
But, perhaps the most fruitful source of jurisdiction for the Federal Courts arises out of the enlargement of controversies between citizens of different states. Corporations, when in a confidential mood, make the boast that the Federal Courts always have and always will take care of the property of the country, which means the people who have property. Specific data could be obtained of the cases lost and won by the railroads which remove their cases to the Federal Courts in Chicago. But it may be sufficient to say that the attorney of one of these railroads recently stated that he had never lost a case for his company in these courts. Federal judges take a specific oath to do justice between the rich and the poor alike, and it is not perceived what claim property as such can legitimately make upon the attention of these courts. But it is a notorious fact that the jurisdiction of the state courts are set aside by the removal acts and all corporations, which can use the Federal jurisdictions. The Constitution itself provides that the Federal Courts shall have jurisdiction of controversies between citizens of different states. For the purposes of removal corporations are held to be citizens of the state of their creation, because conclusively presumed to be composed of citizens of that state, and these removals have been and often are made in the face of facts which overcame that presumption if it ever should have obtained.
Thus, a number of men residing in Chicago, and who are citizens of Illinois, procure the incorporation of a company under the laws of New Jersey. These men own the stock of the company, the business property may all be located in Illinois. These men demand the protecting powers of the state authorities for their New Jersey company. Yet, if the company is sued in the courts of Illinois, by a citizen of Illinois, the company removes the cause to the Federal Court on the ground that there is a controversy between citizens of different states. The point is, a corporation is not a citizen. A citizen is a person. For a corporation is an artificial body, and a modern corporation is not the persons who procure the charter. They are not empowered as incorporators and their successors to exercise certain chartered powers. The theory of controversies between citizens of different states, entitling the Federal Courts to take jurisdiction, is exceedingly simple. As the states were independent republics it was naturally supposed that there might be local prejudice against a citizen of a different state, who should come or be brought in a state court; and that a citizen of the state in which the suit was brought would have an advantage over the citizen of another state in the local courts. The Federal Courts being inter-state tribunals, were thought to be the safest forums for the adjustment of controversies between citizens of different states. But how is there a controversy between such citizens when the chief, if not all the parties in interest in a New Jersey corporation, are citizens of Illinois, and the adverse party to the suit is a citizen of Illinois? Thus, such a New Jersey corporation can, under the system which has grown up, try its suits in the Federal Courts in every state in the Union, except New Jersey. As all the great corporations are chartered in some one of these states which has recognized the "logic of monopoly," it follows that they are independent of the state laws and the state courts. All the great railroads and all the great corporations thus seek the shelter of the Federal Courts whose independence from popular passions makes the law sure and smooth for them. It is a notorious fact, too, that the rules of the Federal Courts are so drawn that the poor have the barest chance of success. The way is bestrewn with complex technicalities, with arbitrary rulings. There is not, in fact, the right of trial by jury in these courts; there is only the favor of such a trial upon the consent of the judge. For the judge can withdraw any case from the jury, and the practice of doing so is notoriously common. The court passes on the facts, the court instructs the jury orally, and sums up the facts, emphasizing what it chooses. If the jury returns a verdict for a poor man, the court may set it aside. And if this is done the expense and labor of another trial are peculiarly heavy. If one is rendered for a corporation it likely will not be set aside. But if it is, the corporation can serenely await the second trial. The case may be diverted upon some collateral point. A ruling of a court of appeal requires a great deal of money, for the rules of the court impose such onerous burdens upon those who appeal, such as requiring the record to be printed, that appeals are impossible to the poor. Candid consideration of the practice and the rules of these courts will convince any one that they are the courts of plutocracy; and that the poor, the maimed, the oppressed can expect neither pity nor justice in them. Of course, there are exceptions, and exceptional judges. No condemnation upon a subject of this kind can be all inclusive. Also it ought to be said that in a suit between corporations of equal power, between individuals of equal standing, or of equally indifferent standing, or between an individual and an obscure corporation as to some subject not suggestive of the sanctity of property and ordinarily in a criminal cause, a trial in a Federal Court may be fair. Nevertheless, the general condemnation that they are the courts of plutocracy cannot be successfully assailed. What excuse can men have who take a specific oath provided by law to do justice to the rich and the poor alike, so to build up a practice and a jurisprudence that the courts are accessible only to those who have money? The peculiar constitution of the Federal Courts has made this evolution easier than it would have been with them if the judges had been elective. A deep laid plan of imperial consolidation has promoted the enlargement of the jurisdiction of these courts by casuistical reasoning and ill-concealed usurpation until their jurisdiction is practically boundless.
"Depend upon it," wrote Alexander H. Stephens, "there is no difference between consolidation and empire; no difference between centralism and imperialism." When the 14th amendment was added to the Constitution they were poor judges of human nature who supposed that its apparent principles of liberty were in safer hands for being centrally administered than they would have been with the states themselves. And so the brave men who went through the terrible conflict of 1861, and who are yet living, have seen an interpretation put upon its results, which, if anticipated before the war, would have prevented the firing of a shot. A union of men or of states based upon affection is a different thing from a union bound together by force, and whose units are disciplined as to matters of the purest local interest by the appointive judiciary of a consolidated government.
The war abolished the avowed and visible slavery of the negro; but, accurately speaking, what does it amount to in the face of the use to which the 14th amendment has been put?
The 14th amendment is very easily dodged so far as the negro is concerned. And this is done without much objection and generally with applause. While this magna charta of the general government has produced perennial benefits to those whom the abolitionists could scarcely have dreamed would have derived anything out of a glorious war for liberty. The 14th amendment has committed to the care of the Federal Courts every special interest. The states may tax corporations, but the Federal Courts may invalidate the taxation, all sorts of local regulations as to railroads, street railways and what not are invalidated under it. There seems to be no subject of state action which is not covered by the 14th amendment. The result is that the states may do only what the Federal Courts decide the 14th amendment does not prohibit. Philosophically and in truth what was, what could be gained when the power of securing the equal protection of the laws and equal rights for all involved the creation of a virtual empire? What a paradox this is, which purports to secure liberty by destroying the only sources of liberty known then or now, namely, the rule of the people and the supremacy of local government in local affairs. The last few years have seen diabolical constructions placed upon the war of 1861 by the party which claims the glories of that war, and which has been paramount since the war.
If the constitutional sequence of that war is the right to subjugate weaker people and tax them without representation; if as one of its results the military can be supreme at will; if as another of its results the crime of sedition has been created, and freedom of the press and of speech and a right to use the mails have been curtailed or placed at the disposal of the government, then the mere fact that the negro was emancipated in the course of the war does not prevent the conclusion that the deeper impulse projected to this day with studied care was the creation of an empire robed for effect in the apparel of a republic. The Panama episode is good proof that secession of itself is not nearly so reprehensible as the republican party pretended in the days when it inveighed against secession as the embodiment of treason. The powers which have been coaxed from the plausible surface of the 14th amendment, and through which organized wealth has its way in the Federal Courts, is one of the criteria of the meaning of the war of 1861.
The task of taking these courts in hand now devolves upon the people. There is no place in a republic for courts so constituted. Time has fully shown that the reasons advanced in their favor when the constitution was pending before the people were such as men might advance, whose motives were sinister, or such as men might advance from the recesses of the mind, based upon insufficient data and without that experience, which in all matters of policy, is necessary to true knowledge. Jefferson uttered a great truth when he said that better results might be obtained by appointing the judges, but it was doubtful, and in such a case principle should be consulted. The principle was, of course, that the people are the source of government, and necessarily of all of its departments, and that the judges should hold their commissions from the people themselves. Progress points the way to this end. Despotism and retrogression, its accompaniment, look to the perpetuation of the present system.