language of the dissenting opinion) their plain right to punish local acts of sedition, nominally directed against the United States.
It may be argued, perhaps, that the importance of the Nelson case has been over-inflated. Few of the forty-two States with anti-sedition acts ever had launched so much as a single prosecution under their laws. Yet from a broader standpoint, the importance of the majority opinion in the Nelson case scarcely can be overemphasized. In the very act of adopting their anti-sedition acts, the States had exercised some of the old and far-off prerogatives of sovereign States. The significance of the Nelson opinion is to be found in the fact that the Court recognized these stirrings of sovereign spirit, and set about to quash them. In the eyes of the Court majority, for the States to punish sedition would be for States to behave as States. And this, above all things, the States must never be permitted to do.
Just three weeks after the Nelson opinion came down, the cause of States rights was even more seriously crippled by the courts ruling in Griffin vs. Illinois.(55) Curiously, this far-reaching 5-4 decision of the Court claimed little attention. A more damaging blow against the concept of State sovereignty seldom has been struck.
Here the facts were that two men, Griffin and Crenshaw, had been convicted in Illinois of armed robbery. Immediately after their conviction, they had filed a motion in the trial court demanding that a stenographic transcript of the record be furnished them without cost. The State law on the subject limited such free transcripts to pauper defendants placed under sentence of death; in all other cases, State law permitted appeals to be taken simply on a narrative record of alleged errors in the trial, plus a complete bill of exceptions. The petitioners argued that lack of a stenographic transcript would prevent them from the equal protection of the law that might be enjoyed by wealthy defendants in the same position.
The court majority, speaking through Mr. Justice Black, sympathetically agreed. For the purposes of their decision, the majority assumed that the two felons, if only they had a transcript, could point to reversible error in the trial court proceedings. This was unthinkable: In criminal trials a State can no more discriminate on account of poverty than on account of religion, race or color. . . . There is no meaningful distinction between a rule which would deny the poor the right to defend themselves in a trial court and one which effectively denies the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance. . . . There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.
Four members of the Court concurred in that opinion, and Mr. Justice Frankfurter uneasily concurred in the result. It is a frequent device of Mr. Justice Frankfurter to join what he deems to be the right side, but for his own reasons. Here he pointed out that obviously, the State of Illinois could not be held responsible for the varying economic conditions of defendants in criminal trials. And of course, he said, a State in providing for appellate review, need not equalize economic conditions. After all, said Mr. Justice Frankfurter, thoughtlessly demolishing the whole spurious structure of his four colleagues opinion, a man of means may be able to afford the retention of an expensive, able counsel not within reach of a poor mans purse. These are contingencies of life which are hardly within the power, let alone the duty, of a State to correct or cushion.
Four members of the Court, to judge by the tone of their dissenting opinions, were sorely concerned at the majoritys palpable intrusion upon long-established prerogatives of the States. In a beautifully reasoned dissenting opinion, Mr. Justice Harlan pointed out, gravely, that the effect of the majoritys opinion would be to create a host of problems affecting the status of an unknown multitude of indigent convicts. The record, he insisted, was too obscure possibly to justify a decision of so sweeping an impact. Apart from this, he sharply attacked the majoritys plea that the poor and the rich must fare equally. This declaration, he said wryly, hardly sheds light on the true character of the problem confronting us here. What was the true character? Let Mr. Justice Harlan speak at length. What he has to say bears on many other constitutional problems under review in these
. . . no economic burden attendant upon the exercise of a privilege bears equally upon all, and in other circumstances the resulting differentiation is not treated as an invidious classification by the State, even though discrimination against indigents by name would be unconstitutional. Thus, while the exclusion of indigents from a free State university would deny them equal protection, requiring the payment of tuition fees surely would not, despite the resulting exclusion of those who could not afford to pay the fees. And if imposing a condition of payment is not the equivalent of a classification by the State in one case, I fail to see why it should be so regarded in another.
Thus, said Mr. Justice Harlan, the crucial point was not whether the State had created legal disabilities on the basis of a reasonable classification, but ratherand this is vitalwhether the State possibly could be condemned as unreasonable for failing to remove natural disabilities. (Emphasis supplied.) For his own part, Mr. Justice Harlan was not ready to label this discrimination on the part of Illinois.
Mr. Justice Harlan concluded by commenting that the legal matter at issue was primarily a question of the criminal procedure provided by Illinois in her own State courts. Whatever might be said were this a question of procedure in the Federal courts, he added, regard for our system of federalism requires that matters such as this be left to the States. He thought it beyond the province of the Court to tell Illinois that it must provide the procedures thought desirable by the majority.
Harlan then joined three other members of the Court (Burton, Minton, and Reed) in a separate dissenting opinion emphasizing further objections to the opinion of the majority. The four agreed that free stenographic transcripts in criminal proceedings may constitute a desirable social policy, butlet this be noted carefully
what may be good legislative policy is not necessarily required by the Constitution of the United States. Persons charged with crimes stand before the law with varying degrees of economic and social advantage. Some can afford better lawyers and better investigations of their cases. Some can afford bail, some cannot. Why fix bail at any reasonable sum if a poor man cant make it?
The Constitution requires the equal protection of the laws, but it does not require the States to provide equal financial means for all defendants to avail themselves of such laws.
Mr. Justice Blacks opinion . . . is an interference with State power for what may be a desirable result, but which we believe to be within the field of local option. [Emphasis supplied.]
Is it necessary, really, to add anything to this final sentence?
Brief review of two or three more cases will suffice to suggest the trend against the States. We may study with profit the Phillips case, decided June 7, 1954.(56) Here a majority of the Court seized from the Southwestern States the State control of natural-gas production and gathering which historically they had exercised. As Justices Clark and Burton emphasized pointedly in a dissenting opinion, the Natural Gas Act specifically provided that the act was not to apply to the production or gathering of natural gas. Language could not express a clearer command, they remarked, yet the majority had rendered the language almost entirely nugatory. And they added:
By todays decision, the Court restricts the phrase production and gathering to the physical activities, facilities, and properties used in production and gathering. Such a gloss strips the words of their substance. If the Congress so intended, then it left for State regulation only a mass of empty pipe, vacant processing plants and thousands of hollow wells with scarecrow derricks, monuments to this new extension of Federal power. It was not so understood.
Rather, said the dissenting justices, the legislative history of the act, the demonstrable interpretation placed upon the act by the Federal Power Commission, and the obvious prospect that Federal regulation would seriously interfere with State conservation practicesall these considerations established a clear intent on the part of Congress that production and gathering of gas should be exempt from Federal control. Observance of good faith with the States, said the minority, requires that we interpret this Act as it was represented at the time they urged its enactment, as its terms read, and as we have, until today, declared it, viz., to supplement but not to supplant State regulation.
It is a long jump from the natural gas fields of Texas and Oklahoma to the academic groves of Brooklyn College, New York City, but let us take it. On September 24, 1952, the Internal Security Subcommittee of the Senate Committee on the Judiciary held hearings in New York. One of the witnesses was Dr. Harry Slochower, associate professor of German. He had been identified by another witness as a member of the Communist party, prior to 1941. Dr. Slochower was asked about this. And Dr. Slochower declined to answer. He took the Fifth Amendment. He lost his job. He sued to regain it.
To understand the legal point at issue, it is necessary to look much farther back, to the time of the Samuel Seabury Report of 1932. That was an investigation into graft and corruption in the municipal government of New York City. During the course of that investigation, a number of city employees were summoned, only to assert before the frustrated Mr. Seabury that a truthful answer to the questions he propounded them might tend to incriminate them, and therefore they declined to answer. In his final report, Mr. Seabury recommended an ordinance that in 1938 became Section 903 of the Charter of the City of New York. It provided that whenever an employee of the city utilized the privilege against self-incrimination in order to avoid answering questions relating to his official conduct, his term or tenure of office or employment shall terminate and such office or employment shall be vacant. As the highest courts of New York were to interpret the provision, any employee who invoked the Fifth Amendment was to be deemed, as of that moment, to have tendered his resignation.
Thus when Dr. Slochower, in September of 1952, declined to answer questions concerning his membership in the Communist party in 1940 and 1941, Section 903 came into play. He had been twenty-seven years at Brooklyn College. Abruptly, his tenure terminated. It was the professors contention that this summary dismissal (for he did not agree that he had resigned) was an infringement upon his guarantee of due process of law. By a 5-4 division, the Supreme Court of the United States accepted his contention. In the eyes of Mr. Justice Clark and his colleagues on the majority, New York Citys Section 903 was a perversion of a constitutional right. The charter section, as they saw it, served to impute a sinister meaning to the exercise of the Fifth Amendment; it was as if New York City regarded this privilege as equivalent either to a confession of guilt or a conclusive presumption of perjury. Appalled at this thought, the majority denounced the heavy hand of New Yorks arbitrary statute, and ordered the lower court reversed.(57)
Reed, Burton, and Minton dissented in vigorous terms. They commented that the majoritys opinion strikes deep into the authority of New York to protect its local government institutions from influences of officials whose conduct does not meet the declared State standards for employment. Then they made clear what the majority had been strangely unable to seethat New Yorks Section 903 established not a judgment of disloyalty, but a standard of propriety. The city does have reasonable ground to require its employees either to give evidence regarding facts of official conduct within their knowledge or to give up the positions they hold. An employee who lacks candour, in the eyes of New York, is a person unfit to hold certain official positions. New York had decided it did not want that kind of public employees, and the dissenting three added: We think New York had that right.
Mr. Justice Harlan, dissenting separately, boiled the bone of contention down still further: In effect, what New York has done is to say that it will not employ teachers who refuse to cooperate with public authorities when asked questions relating to official conduct. . . . I think that a State may justifiably consider that teachers who refuse to answers questions concerning their official conduct are no longer qualified for public school teaching, on the ground that their refusal to answer jeopardizes the confidence that the public should have in the school system.
But, again, the majority prevailed. As this is written, the supreme law of the land (which is to say, the Constitution, which is to say, the Constitution rewritten by the Supreme Court of the United States) thus limits a State in fixing the standards of propriety a State may demand of its own public servants in matters of their official conduct.
For a final case (and especially because of some things Mr. Justice Douglas had to say), we may consider the Courts unanimous action in ordering Robert L. Hanson, Horace A. Cameron, Harold J. Grau, and others, to join an AFL railway union in order to hold their jobs on the Union Pacific Railroad. Messrs. Hanson, Cameron, and Grau did not want to join the union. They regarded themselves not only as citizens of the United States, but also as citizens of Nebraska, and they pinned their faith in a provision of the Nebraska Constitution: No person shall be denied employment because of . . . nonmembership in a labor organization. But the Union Pacific entered into a union shop contract, and the objecting employees were ordered to join the union within sixty days or lose their jobs, their seniority, their pensions, and their other rights. The Nebraska Supreme Court held that they could not be forced into a labor organization against their willthat they had a right to work, under the Nebraska Constitution, which could not be denied them.
But the Supreme Court of the United States held otherwise. Speaking through Mr. Justice Douglas, the Court declared that Congress had acted within its powers in 1951, when it wrote a sanction for union shop contracts into the Railway Labor Act. The Court was careful to point out that its decision was directed to one narrow issue: If the objecting workers found their political freedom infringed, or other personal liberties denied them by union coercion, they might return to the courts for redress. But the union shop clause was an allowable provision for facilitating interstate commerce, and the court would not interfere.
Why would the Court not interfere? Let us pay close heed:
The question is one of policy with which the judiciary has no concern. . . . Congress, acting within its constitutional powers, has the final say on policy issues. If it acts unwisely, the electorate can make a change. The task of the judiciary ends once it appears that the legislative measure adopted is relevant or appropriate to the constitutional power which Congress exercises. The ingredients of industrial peace and stabilized labor-management relations are numerous and complex. They may well vary from age to age and from industry to industry. What would be needful one decade might be anathema the next. The decision rests with the policy makers, not with the judiciary.(58) [Emphasis supplied.]
A citizen of Virginia may perhaps be forgiven some bitterness, as he reads over this pious dictum from the Supreme Court of the United States. The question is one of policy with which the judiciary has no concern. For nearly ninety years, it has been universally understood that the maintenance of racially separated public schools was a matter of State policy; that the ingredients of this problem were numerous and complex; that they varied from age to age and from State to State; that what a State regarded as necessary in one decade it might abandon in the next. And all such decisions had been held to rest with the policy makers, not with the judiciary. For if the policy makers acted unwisely, the electorate could make a change. But the electorate cannot touch a supreme judiciary appointed for life.
We have come full circle, said Mr. Justice Frankfurter, concurring in the Hanson case. He was reflecting that in the Adair case (1908), the Court had upheld the right of railway companies to deny work to a union man. Now, in 1956, they had upheld the right of unions to deny work to a non-union man. From sanctioning the yellow dog contracts of the turn of the century, the Court had come to bless the union shop contracts of our own time. The former were now universally condemned. But the latter? The latter had become allowable. And no State could be permitted to say otherwise.
These cases (and countless others could be cited) define a trend: The deification of the Federal government, and the steady stultification of the States. They point to a problem, a great and difficult constitutional problem. It certainly is not a new one. It existed in Jeffersons day, and in Calhouns, and for that matter, in Teddy Roosevelts also. It is to preserve unto the States, for good or ill, that which is rightfully the States, and to guard with equal jealousy that which is the proper function of the Federal government. Yet to an ominous degree, the problem now is far more acute than it has ever been before. When Jefferson and Calhoun were protesting most furiously, enormous areas of public administration remained to the States; even at the turn of the century, States rights still held some meaning. Now, month by passing month, the States steadily are being stripped of the last of their sovereign powersnot by their own wish, as expressed through constitutional amendmentbut by judicial usurpation. Those who had conceived the Constitution itself to be the supreme law of the land are now told, imperiously, that todays opinions of the Court, however palpably in violation of the Constitution these mandates may be, are supreme above all things. We are told to bow and fawn before a judicial oligarchy which has asserted unto itself powers as arrogant as those of any tyrant: This is compassionate, says the Court, therefore it is constitutional. This, in the Courts view, is socially desirable; therefore the Court will make it the law. And to resist, as in Clinton, is to travel in handcuffs to Knoxville, there to face prosecution for contempt.
The end of this process is the corruption of a constitutional Union, by judicial fiat, into a consolidated government in which the States are mere political dependencies. The end is a centralization of all meaningful powers in the hands of Federal authority. And so long as the constructions placed by the Court upon the Constitution are agreeable to one-third of the House of Representatives, plus one, timely remedy cannot even be found in constitutional amendment.
The remedy liesit must liein drastic resistance by the States, as States, to Federal encroachment. If those who voluntarily created the system cannot be trusted to preserve it, asked Calhoun, who can? The checking and controlling influence of the people, exerted as of old, through their States, can indeed preserve the constitutional structure. The right to interpose the will of the sovereign people, in order that the evils of encroachment may be arrested, once more can be exerted toward the preservation of a Union and the dignity of States.
A long time ago, a great Virginian had this to say: So far as our [Federal] government is concerned, I venture to predict that it will become absolute and irresponsible, precisely in proportion as the rights of the States shall cease to be respected and their authority to interpose for the correction of Federal abuses shall be denied and overthrown.(59)
Abel Parker Upshurs prediction of 1840 has been grimly fulfilled. The American people have lost sight of the old concept that the States, as such, form the balance wheelin Upshurs term, the only effectual check upon Federal encroachments. We have lived to see the truth of his prophecy, that the danger to constitutional separation of powers is not that the States will interpose too often, but that they will rather submit to Federal usurpations, than incur the risk of embarrassing the government, by any attempts to check and control it.
The States have submitted too long to Federal usurpations. At their grave peril, they can submit no longer. Through every device of interposition they can bring to bearpolitical, legislative, judicialonce more they must invoke their sovereign powers to insist that Federal encroachments be restrained. Thankfully, half-a-dozen Southern StatesAlabama, Georgia, Mississippi, North Carolina, South Carolina, Virginiahave spoken through their legislatures against the Court. The people of Texas and Arkansas, by referendum, have approved the doctrine of interposition. Southerners in Congress have made their position clear in a ringing Manifesto, denouncing judicial legislation. The Supreme Court of Georgia has not hesitated to rebuke the Supreme Court in Washington: We will not supinely surrender sovereign powers of this State.(60) This awakening of State sovereignty, met at first with mockery and ridicule, will be met next with all the hostility and force that centralists can bring to bear. If this force is to be overcome, the conservatives of this Republicthose who believe in limited government and in individual responsibilitymust be prepared to risk those sacrifices which the hour demands. Others have risked them beforea Matthew Lyon in Vermont, a Michael Bright in Pennsylvania, a Troup in Georgia, a Calhoun in South Carolina, a Booth in Wisconsin, a Sullivan in Ohio, a Young in Minnesota. These and many others, strong in their convictions, have dared to hold their ground when lesser men surrendered.
Yet there is one thing more that also must be done. The States, for their own preservation, must insist upon shouldering those proper responsibilities they too often have abandoned by default. The people will not let the States sink into the insignificance of mere administrative suburbs if the great value and wisdom of local government can be impressed upon them.
The peoples highest interest, said Upshur, is at home; their palladium is their own State governments. They ought to know that they can look nowhere else with perfect assurance of safety and protection. Let them then maintain those governments, not only in their rights, but in their dignity and influence. Make it the interest of their people to serve them: an interest strong enough to resist all the temptations of Federal office and patronage. Then alone will the voice [of the States] be heard with respect at Washington; then alone will their interposition avail to protect their own people against the usurpations of the great central power. It is vain to hope that the federative principle of our government can be preserved, or that any thing can prevent it from running into the absolutism of consolidation, if we suffer the rights of the States to be filched away, and their dignity and influence to be lost, through our carelessness or neglect.
Thus Abel Parker Upshur ended his essay in 1840. And thus, well over a century later, this one ends also.