by Gore Vidal
But the wild card in the federal apparatus proved not to be the predictable Congress and the equally predictable presidency whose twistings and turnings any reader of Plutarch might have anticipated. The wild card was the Supreme Court.
Lundberg calls attention to the following language of Article III of the Constitution.
The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
The preceding twelve words [he continues] are emphasized because they are rarely alluded to in discussions about the Court. They bring out that, under the Constitution, the Supreme Court is subject to regulation by Congress, which may make exceptions among the types of cases heard, individually or by categories. Congress, in short, is explicitly empowered by the Constitution to regulate the Court, not vice versa.
Certainly, the Court was never explicitly given the power to review acts of Congress. But all things evolve and it is the nature of every organism to expand and extend itself.
In 1800, the outgoing Federalist President John Adams made a last-minute appointment to office of one William Marbury. The incoming Republican President Jefferson ordered his secretary of state Madison to deny Marbury that office. Marbury based his right to office on Section 13 of Congress’s Judiciary Act of 1789. Federalist Chief Justice John Marshall responded with marvelous cunning. In 1803 (Marbury v. Madison) he found unconstitutional Section 13, the work of Congress; therefore, the Court was unable to go forward and hear the case. The partisan Jefferson was happy. The equally partisan Marshall must have been secretly ecstatic: he had set a precedent. In passing, as it were, Marshall had established the right of the Supreme Court to review acts of Congress.
The notion of judicial review of the Executive or of Congress was not entirely novel. Hamilton had brought up the matter in 1787 (Federalist Paper No. 78). “In a monarchy [the judiciary] is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and representations of the representative body.” But the other Framers did not accept, finally, Hamilton’s view of the Court as a disinterested umpire with veto power over the legislative branch. Yet Hamilton had made his case most persuasively; and he has been much echoed by subsequent upholders of judicial review.
Hamilton believed that the judiciary could never be tyrannous because it lacked real power; he does admit that “some perplexity respecting the rights of the courts to pronounce legislative acts void because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void must necessarily be superior to the one whose acts must be declared void.” Since this is true and since the Constitution that Hamilton is defending does not give judicial review to the Supreme Court, Hamilton does a most interesting dance about the subject. The Constitution is the “fundamental law” and derives from the people. If the legislative branch does something unconstitutional it acts against the people and so a disinterested court must protect the people from their own Congress and declare the act void.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both, and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.
This is breathtaking, even for Hamilton. He has now asserted that a court of life appointees (chosen from the rich and wellborn) is more interested in the rights of the people than the House of Representatives, the only more or less democratically elected branch of the government. But Hamilton is speaking with the tongue of a prophet who knows which god he serves. The future in this, as in so much else, was what Hamilton had envisaged, constitutional or not. Characteristically, by 1802, he had dismissed the Constitution as “a frail and worthless fabric.”
Marshall was most sensitive to the charge of judicial usurpation of congressional primacy; and during the rest of his long tenure on the bench, he never again found an act of Congress unconstitutional. But Marshall was not finished with republic-shaping. Although he shared the Framers’ passion for the rights of property, he did not share the admittedly subdued passion of certain Framers for the rights of the citizens. In 1833, Marshall proclaimed (speaking for a majority of his Court in Barron v. City of Baltimore) that the Bill of Rights was binding only upon the federal government and not upon the states. In order to pull off this caper, Marshall was obliged to separate the amendments from the Constitution proper so that he could then turn to Article VI, Paragraph 2, where it is written that this Constitution (pre–Bill of Rights) “shall be the supreme law of the land…any thing in the Constitution or laws of any state to the contrary not withstanding.” Apparently, the first ten amendments were not an integral part of “this Constitution.”
The result of Marshall’s decision was more than a century of arbitrary harassment of individuals by sheriffs, local police, municipal and state governing bodies—to none of whom the Bill of Rights was held to apply. As for the federal government, the Supreme Court was only rarely and feebly willing to enforce the rights of citizens against it. It is startling to think that the Supreme Court did not seriously begin to apply the Bill of Rights to the states until the 1930s despite the Fourteenth Amendment (1868), which had spelled out the rights of citizens. Gradually, over the last thirty years, an often grudging court has doled out to the people of the United States (including Mr. Brown) most of those rights which George Mason had wanted them to have in 1793.
Fifty-four years after Marbury v. Madison, the Supreme Court found a second act of Congress unconstitutional. In order to return property to its owner (the slave Dred Scott to his master Dr. Emerson), the Supreme Court declared unconstitutional the Missouri Compromise; and made inevitable the Civil War. It was ironic that the Court which Hamilton had so Jesuitically proposed as a defender of the people against a wicked legislature should, in its anxiety to protect property of any kind, have blundered onto a stage where it had neither competence nor even provenance. (Article IV: “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States….”) But the wild card had now been played. Judicial review was a fact. The Court was now ready—give or take a Civil War or two—to come into its unconstitutional own.
In 1864, the Court struck down the income tax, denying Congress its absolute power to raise revenue; and not until the passage of the Sixteenth Amendment (1913) did Congress get back its right, in this instance, to raise taxes—which it can never not have had, under the Constitution. But as Lundberg says, “The Court had gained nearly eighteen years of tax-free bliss for its patrons although it was shown to be out of harmony with the thinking of the country as well as that of the framers, previous courts, and legal scholars—and the Constitution.”
From March 9, 1865 (when the management of the reigning Republican party became almost totally corrupt), to 1970, ninety acts of Congress were held void in whole or in part. Most of these decisions involved property, and favored large property owners. As of 1970, the Court had also managed to overrule itself 143 times. Plainly, the Constitution that the justices keep interpreting and reinterpreting is a more protean document than the Framers suspected. “The trouble with the Constitution of the United States,” wrote the London Chronicle a century ago, “is that nobody has ever been able to find out what it means.” Or, put another way, since everybody knows what it means, much trouble must be taken to distort the meaning in order to make new arrangements for the protection of property.
Lundberg takes the position that, by and large, the Court’s behavior is the result of a tacit consensus among the country’s rulers: that two percent of the population—or one p
ercent, or sixty families, or those active members of the Bohemian Club owns most of the wealth of a country that is governed by the ruler’s clients in the three branches of government. On those occasions when their Congress is forced by public opinion to pass laws that they do not want enacted, like the income tax of 1864, they can count either on their president’s veto or on the Court’s invocation of the Constitution to get Congress off the hook. The various courts are so devised, Lundberg writes, as to “rescue the legislatures and executives from their own reluctant acts.”
Except for the passing of the Sixteenth Amendment, Congress has made only two serious attempts to reclaim its constitutional primacy over the Court (as opposed to a lot of unserious attempts). The first was in 1868. The House Judiciary Committee, fearful that the Court would strike down a number of reconstruction acts, reported a bill requiring that two thirds of a court’s judges must concur in any opinion adverse to the law. This bill passed the House but died in the Senate. In the same year, the House did manage to pass a law (over presidential veto) to limit certain of the Court’s appellate powers. On March 19, 1869, the Court unanimously bowed to Congress, with a sideswipe to the effect that although the Constitution did vest them with appellate powers, the clause that their powers were conferred “with such exceptions and under such Regulations as Congress shall make” must be honored.
This is one of the few times that Congress has asserted directly its constitutional primacy over a Court that for the next seventy years took upon itself more and more the powers not only to review any and all acts of Congress but to make law itself, particularly when it came to preventing the regulation of corporations or denying rights to blacks. During the last forty years, although the Court has tended to stand aside on most economic matters and to intervene on racial ones, the Court’s record of self-aggrandizement has been equaled only by that of the Johnny-come-lately wild card, the president.
The first fifteen presidents adjusted themselves to their roomy constitutional cage and except for an occasional rattling of the bars (the Alien and Sedition Acts) and one break-out (the Louisiana Purchase) they were fairly docile prisoners of Article II. In 1860, the election of the sixteenth president caused the Union to collapse. By the time that Abraham Lincoln took office, the southern states had organized themselves into what they called a confederacy, in imitation of the original pre-Constitution republic. As Lincoln himself had declared in 1847, any state has the moral and, implicitly, constitutional right to govern itself. But permissive Congressman Lincoln was not stern President Lincoln. Firmly he put to one side the Constitution. On his own authority, he levied troops and made war; took unappropriated money from the Treasury; suspended habeas corpus. When the aged Chief Justice Taney hurled the Constitution at Lincoln’s head, the president ducked and said that, maybe, all things considered, Congress ought now to authorize him to do what he had already done, which Congress did.
Lincoln’s constitutional defense for what he had done rested upon the oath that he had sworn to “preserve, protect and defend the Constitution” as well as to see to it “that the law be faithfully executed.” Lincoln proved to be a satisfactory dictator; and the Union was preserved. But the balances within the constitution of the Second Republic had been forever altered. With the adoption of the Thirteenth, Fourteenth, and Fifteenth amendments extending the vote to blacks (and, by 1920, to women and, by 1970, to eighteen-to twenty-year-olds) while ensuring, yet again, that no state can “deprive any person of life, liberty, or property without the process of law; nor deny to any person within its jurisdiction the equal protection of the laws,” the Bill of Rights was at last, officially at least, largely applicable to the people who lived in the states that were again united.
Needless to say, the Supreme Court, often witty if seldom wise, promptly interpreted the word “person” to mean not only a human being but a corporate entity as well. During the next fifty years, the Court continued to serve the propertied interests against any attack from the other branches of government while ignoring, as much as possible, the rights of actual persons. Any state that tried to curb through law the excesses of any corporation was sure to be reminded by the Court that it had no such right.
But the Third Republic had been born; the electorate had been expanded; and civil rights were on the books if not engraved in letters of fire upon the hearts of the judiciary. Although the presidents pretty much confined themselves to their constitutional duties, the memory of Lincoln was—and is—a constant stimulus to the ambitious chief magistrate who knows that once the nation is at war his powers are truly unlimited, while the possibilities of personal glory are immeasurable.
At the turn of the century Theodore Roosevelt nicely arranged a war for his president, McKinley, who did not particularly want one. In 1917 Wilson arranged a war which neither Congress nor nation wanted. Since then the presidents have found foreign wars irresistible. With the surrender of Japan in 1945, the last official war ended. But the undeclared wars—or “police actions”—now began with a vengeance and our presidents are very much on the march. Through secret organizations like the CIA, they subvert foreign governments, organize invasions of countries they do not like, kill or try to kill foreign leaders while spying, illegally, on American citizens. The presidents have fought two major wars—in Korea and Vietnam—without any declaration of war on the part of Congress.
Finally, halfway through the executive’s war in Vietnam, the sluggish venal Congress became alarmed—not to mention hurt—at the way they had been disregarded by Johnson Augustus. The Senate Committee on Foreign Relations began to ask such questions as, by what inherent right does a president make war whenever he chooses? On March 8, 1966, the president (through a State Department memorandum) explained the facts of life to Congress: “since the Constitution was adopted there have been at least 125 instances in which the President has ordered the armed forces to take action or maintain positions abroad without obtaining prior Congressional authorization, starting with the ‘undeclared war’ with France (1798–1800)….” Congress surrendered as they had earlier when the inexorable Johnson used a murky happening in the Tonkin Bay to ensure their compliance to his war. It was not until many thousands of deaths later that Congress voted to stop funds for bombing the Indochinese.
How did the president break out of his cage? The bars were loosened by Lincoln, and the jimmy that he used was the presidential oath, as prescribed by the Constitution: “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.” Lincoln put the emphasis on the verb “defend” because he was faced with an armed insurrection. Later presidents, however, have zeroed in on the verb “execute”—as broad a verb, in this context, as any president on the loose could wish for. From this innocuous-seeming word have come the notions of inherent executive power and executive privilege, and that astonishing fact with which we have been obliged to live for half a century, the executive order.
Congress and Court can be bypassed by an executive order except on very odd occasions such as Truman’s unsuccessful seizure of the steel mills. When Wilson’s request to arm merchant American ships was filibustered to death by the Senate in 1917, Wilson issued an executive order, arming the ships. Later, still on his own, Wilson sent troops to Russia to support the czar; concluded the armistice of 1918; and introduced Jim Crow to Washington’s public places. In 1936 Franklin Roosevelt issued a secret executive order creating what was later to become, in World War II, the OSS, and then in peacetime (sic) the CIA. This vast enterprise has never been even moderately responsive to the Congress that obediently funds it. The CIA is now the strong secret arm of the president and no president is about to give it up.
For all practical purposes the Third Republic is now at an end. The president is a dictator who can only be replaced either in the quadrennial election by a clone or through his own incompetency, like Richard Nixo
n, whose neurosis it was to shoot himself publicly and repeatedly in, as they say, the foot. Had Nixon not been helicoptered out of the White House, men in white would have taken him away. The fact that we are living in an era of one-term presidents does not lessen, in any way, the formidable powers of the executive.
The true history of the executive order has yet to be written. As of December 31, 1975, the presidents had issued 11,893 executive orders. The Constitution makes no allowances for them. In fact, when an order wages war or spends money, it is unconstitutional. But precedents can always, tortuously, be found for the president to “execute his office.” In 1793, Washington proclaimed that the United States was neutral in the war between England and France, in contravention of the treaty of 1778 which obliged the United States to come to France’s aid. In 1905 the Senate declined to approve a treaty that Theodore Roosevelt wanted to make with Santo Domingo. Ever brisk and pugnacious, TR made an agreement on his own; and a year later the Senate ratified it. In 1940 Franklin Roosevelt gave England fifty destroyers that were not his to give. But three years earlier, the Supreme Court had validated the principle of the executive agreement (U.S. v. Belmont); as a result, the executive agreement and the executive order are now for the usurper president what judicial review has been for the usurper Court.
