Startling Doctrine

MAJORITY RULE AND MINORITY RIGHTS --Henry Steele Commager--Oxford ($1.50).

Most Americans take for granted the fact that the U.S. Constitution has outlived practically every other written constitution of the past two centuries. But you would never know it to read the books written by the intellectuals of 1942 and 1943. Charles Beard (The Republic), Peter Drucker (The Future of Industrial Man), Hamilton Basso (Mainstream), Herbert Agar (A Time for Greatness), Henry Wallace (The Century of the Common Man), James Truslow Adams (The American), Walter Lippmann (whose The Good Society, originally published in 1937, has just been reissued with a new preface), and Isabel Paterson (The God of the Machine) have all taken part in what might be called a new constitutional convention of the spirit. They have been busy conducting such an argument about "rights," "powers," "duties," the nature of a federal system, and what not, that if Jimmy Madison, Long Tom Jefferson and Alec Hamilton were to return to earth they would feel themselves right at home. It is not too much to say that U.S. intellectuals in 1943 went out and ratified the Constitution all over again. But some of them had semantic reservations.

Latest ratifier is Columbia University's Henry Steele Commager (The Growth of the American Republic, The Heritage of America), whose Majority Rule and Minority Rights contains a surprising reservation (about the U.S. Supreme Court), a surprising admiration (for Congress). Professor Commager is an unabashed small-"d" democrat who believes in the right of the majority to do what it pleases. Not that Professor Commager would contemplate with equanimity the extinction of 49% of the population by a tyrannical 51%. He knows that democracies have sometimes utilized the franchise to vote their own demise. But Professor Commager has an unbounded trust in the good sense of the American and the British peoples. He thinks it extremely unlikely that any U.S. or British small-"d" democrat would ever trifle with the historic rights of minorities or individuals.

Marshall v. Jefferson. Professor Commager's book is subtitled "a study in Jeffersonian democracy and judicial review." For the most part it is an attack aimed at the Supreme Court. In his distrust of judges, Professor Commager echoes Thomas Jefferson's opinion that Chief Justice Marshall was "a crafty chief judge who sophisticates the law to his mind, by the turn of his own reasoning." When Jefferson became President, one of the first things he did was to nullify the Alien and Sedition Acts, which he regarded as unconstitutional. Professor Commager thinks that Jefferson was quite within his powers in thus assuming a prerogative that most people would reserve to the judiciary. For, so Professor Commager argues, if the government of the U.S. is a government by equal and coordinate powers, any one of the tripartite branches, whether legislative, executive or judiciary, has the right to pass judgment on the constitutionality of an act performed by any other.

No doubt this is startling doctrine. A Huey Long in the President's chair might utilize it to subvert most things that free men call desirable. But Professor Commager notes that over the course of the years legislatures have generally had their way. The Supreme Court has often declared a law unconstitutional only to have the sovereign people cancel out the "judicial nullification" by amendment, or by new law, or by judicial reversal obtained by the appointment of new judges, or by political pressure from the White House.

Court v. Congress. Professor Commager might admit that the bogey remains: representatives of the people might threaten the integrity of the Bill of Rights. But the Professor does not trust the Supreme Court to protect freedom. The record of history, he says, "reveals no instance (with the possible exception of the dubious Wong Wing case) where the Court has intervened on behalf of the underprivileged--the Negro, the alien, women, children, workers, tenant-farmers.* It reveals, on the contrary, that the Court has effectively intervened again and again to defeat congressional efforts to free slaves, guarantee civil rights to Negroes, to protect workingmen, outlaw child labor, assist hard-pressed farmers, and to democratize the tax system. From this analysis the Congress, and not the courts, emerges as the instrument for the realization of the guarantees of the Bill of Rights."

In his paean to the good sense of Congressional majorities, Professor Commager says they have been, "to a remarkable extent, stable, law-abiding, and conservative. They have not justified any of the doleful jeremiads of Adams or Hamilton or their successors. They have not taxed wealth out of existence--there are and have long been more great fortunes here than elsewhere in the world; they have not crushed minorities; they have not set up dictatorships; they have not been hostile to education or to science."

His fellow historians would probably endorse Professor Commager's reading of U.S. history. But Professor Commager does not excel as a logician. He barely recognizes the value of the Supreme Court as a repository of what might be termed "sleeping" power. By the very fact of its existence the Court compels Congress to be careful of the phraseology of bills. And in a federal system, a Supreme Court is necessary as a tacit reminder to keep the legislatures of the 48 States from nullifying the powers of the Government in Washington. Conversely, a Supreme Court is also needed to protect the 48 States against overriding federal law. Professor Commager assumes that State legislatures will not do radically unconstitutional things, though he admits that there have been occasional departures by the States from high standards of constitutional integrity. But if two States were to quarrel over the right to tax the estate of an individual, what then? Professor Commager is not concerned with hypothetical cases. But if there were no system of judicial review, many hypothetical cases might become reality.

*Wong Wing v. United States held invalid a statute granting authority to a U.S. Commissioner rather than to a jury to try Chinese alleged to be unlawfully in the country.

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