[78] The Institutes, Part 2, 50-51 (1669).

[79] On the above see especially Justice Harlan's dissenting opinion in Hurtado v. California, 110 U.S. 516, 538 (1884); also Den ex dem. Murray v. Hoboken Land & Improvement Co., 18 How. 272, 280 (1856); Twining v. New Jersey, 211 U.S. 78 (1908); also Corwin, Liberty Against Government (Louisiana State University Press), chap. III.

[80] Scott v. Sandford, 10 How. 393, 450 (1857).

[81] Adkins v. Children's Hospital, 261 U.S. 525 (1923). See also Adair v. United States, 208 U.S. 161 (1908); and Lochner v. New York, 198 U.S. 45 (1905).

[82] Den ex dem. Murray v. Hoboken Land & Improvement Co., 18 How. 272, 276 (1856).

[83] Union P.R. Co. v. United States (Sinking Fund Cases), 99 U.S. 700, 719 (1879).

[84] Wong Wing v. United States, 163 U.S. 228, 238 (1896).

[85] United States v. Ju Toy, 198 U.S. 253, 263 (1905); cf. Quon Quon Poy v. Johnson, 273 U.S. 352 (1927).

[86] Wight v. Davidson, 181 U.S. 371, 384 (1901).

[87] Lovato v. New Mexico, 242 U.S. 199, 201 (1916).

[88] Public Utility Comrs. v. Ynchausti & Co., 251 U.S. 401, 406 (1920).

[89] Johnson v. Eisentrager, 339 U.S. 763 (1950); cf. In re Yamashita, 327 U.S. 1 (1946). Both decisions were reached by a divided Court. In the Yamashita Case, Justices Rutledge and Murphy dissented on the ground that the due process clause applies to every human being, including enemy belligerents.

[90] Davidson v. New Orleans, 96 U.S. 97, 102 (1878). Public Clearing House v. Coyne, 194 U.S. 497, 508 (1904).

[91] Ex parte Wall, 107 U.S. 265, 289 (1883).

[92] Interstate Commerce Commission v. Brimson, 154 U.S. 447, 489 (1894); Cooke v. United States, 267 U.S. 517, 537 (1925).

[93] Ex parte Wall, 107 U.S. 265 (1883).

[94] Reaves v. Ainsworth, 219 U.S. 296, 304 (1911). See also Ex parte Reed, 100 U.S. 13 (1879); Johnson v. Sayre, 158 U.S. 109 (1895); Mullan v. United States, 212 U.S. 516 (1909); United States ex rel. Creary v. Weeks, 259 U.S. 336 (1922).

[95] Kahn v. Anderson, 255 U.S. 1 (1921).

[96] Crain v. United States, 162 U.S. 625, 645 (1896).

[97] Hopt v. Utah, 110 U.S. 574, 579 (1884).

[98] Blackmer v. United States, 284 U.S. 421, 440 (1932).

[99] Hovey v. Elliott, 167 U.S. 409, 417 (1897).

[100] Beall v. New Mexico ex rel. Griffin, 16 Wall. 535 (1873).

[101] United Surety Co. v. American Fruit Product Co., 238 U.S. 140 (1915).

[102] Helis v. Ward, 308 U.S. 365 (1939).

[103] Fayerweather v. Ritch, 195 U.S. 276 (1904).

[104] Hanover Nat. Bank v. Moyses, 186 U.S. 181, 192 (1902).

[105] Parsons v. District of Columbia, 170 U.S. 45 (1898).

[106] Wright v. Davidson, 181 U.S. 371 (1901).

[107] Jones v. Buffalo Creek Coal & Coke Co., 245 U.S. 328 (1917).

[108] Luria v. United States, 231 U.S. 9 (1913).

[109] Yee Hem v. United States, 268 U.S. 178 (1925).

[110] Tot v. United States, 319 U.S. 463 (1943).

[111] Opp Cotton Mills v. Administrator, 312 U.S. 126, 152, 153 (1941).

[112] 321 U.S. 503 (1944).

[113] Ibid. 521.

[114] Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197 (1938).

[115] Central of Georgia R. Co. v. Wright, 207 U.S. 127, 136, 138, 142 (1907); Lipke v. Lederer, 259 U.S. 557, 562 (1922).

[116] Phillips v. Comr. of Internal Revenue, 283 U.S. 589 (1931). Cf. Springer v. United States, 102 U.S. 586, 593 (1881); and Passavant v. United States, 148 U.S. 214 (1893).

[117] Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950).

[118] Morgan v. United States, 304 U.S. 1, 18-19 (1938).

[119] National Labor Relations Board v. Mackay Co., 304 U.S. 333, 349-350 (1938).

[120] Western Paper Makers' Chemical Co. v. United States, 271 U.S. 268 (1926). See also United States v. Abilene & S.R. Co., 265 U.S. 274, 288 (1924).

[121] Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229-230 (1938).

[122] Londoner v. Denver, 210 U.S. 373 (1908).

[123] Federal Communications Commission v. WJR, 337 U.S. 265, 274-277 (1949).

[124] Ibid. 276. "The requirements imposed by the guaranty [of due process of law] are not technical, nor is any particular form of procedure necessary." Inland Empire Council v. Millis, 325 U.S. 697, 710 (1945). See Administrative Procedure Act, 60 Stat. 237 (1946); 5 U.S.C. Sec. 1001-1011.

[125] 298 U.S. 38 (1936).

[126] Ibid. 51-54. Justices Brandeis, Stone and Cardozo, while concurring in the result, took exception to this proposition.

[127] Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942); Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591 (1944).

[128] Federal Power Commission v. Hope Natural Gas Co., 320 U.S. 591, 602 (1944).

[129] 327 U.S. 1 (1946).

[130] 339 U.S. 103 (1950).

[131] Ibid. 111.

[132] 339 U.S. 703 (1950). Justices Black, Douglas and Burton dissented.

[133] United States v. Ju Toy, 198 U.S. 253, 263 (1905). See also Yamataya v. Fisher, 189 U.S. 86, 100 (1903). Cf. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950).

[134] Oceanic Steam Navig. Co. v. Stranahan, 214 U.S. 320 (1909).

[135] Kwock Jan Fat v. White, 253 U.S. 454, 457 (1920). See also Chin Yow v. United States, 208 U.S. 8 (1908).

[136] United States v. Sing Tuck, 194 U.S. 161 (1904). See also Quon Quon Poy v. Johnson, 273 U.S. 352, 358 (1927).

[137] Zakonaite v. Wolf, 226 U.S. 272 (1012).

[138] 339 U.S. 33 (1950).

[139] 60 Stat. 237 (1946); 5 U.S.C. Sec. 1001 et seq. (1946).

[140] United States ex rel. Vajtauer v. Comr. of Immigration, 273 U.S. 103, 106 (1927). See also Mahler v. Eby, 264 U.S. 32, 41 (1924).

[141] 198 U.S. 253 (1905).

[142] Ng Fung Ho v. White, 259 U.S. 276, 281 (1922).

[143] Ludecke v. Watkins, 335 U.S. 160 (1948). Three of the four dissenting Justices, Justices Douglas, Murphy and Rutledge, argued that even an enemy alien could not be deported without a fair hearing.

[144] Steward Machine Co. v. Davis, 301 U.S. 548, 584-585 (1937); Currin v. Wallace, 306 U.S. 1, 14 (1939); Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 401 (1940); Detroit Bank v. United States, 317 U.S. 329, 337, 338 (1943).

[145] Hill v. United States ex rel. Weiner, 300 U.S. 105, 109 (1937).

[146] District of Columbia v. Brooke, 214 U.S. 138 (1909).

[147] Panama R. Co. v. Johnson, 264 U.S. 375, 392 (1924).

[148] United States v. Rock Royal Co-operative, 307 U.S. 533, 562, 565 (1939).

[149] Currin v. Wallace, 306 U.S. 1 (1939).

[150] Detroit Bank v. United States, 317 U.S. 329 (1943).

[151] Hurd v. Hodge, 334 U.S. 24 (1948).

[152] Thiel v. Southern Pacific Co., 328 U.S. 217 (1946).

[153] 323 U.S. 192 (1944).

[154] Ibid. 198, 199.

[155] Ibid. 208, 209. Cf. the following sentence from the concurring opinion of Justice Jackson in Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112 (1949): "I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation."

[156] 208 U.S. 161, 174 (1908).

[157] 313 U.S. 177, 187 (1941).

[158] 261 U.S. 525, 546 (1923).

[159] 300 U.S. 379, 400 (1937).

[160] Addyston Pipe and Steel Co. v. United States, 175 U.S. 211, 229 (1899).

[161] Baltimore & O.R. Co. v. Interstate Commerce Commission, 221 U.S. 612 (1911); Wilson v. New, 243 U.S. 322 (1917); Ellis v. United States, 206 U.S. 246 (1907). See also United States v. Garbish, 222 U.S. 257 (1911).

[162] Patterson v. The "Eudora," 190 U.S. 169 (1903).

[163] Philadelphia, B. & W.R. Co. v. Schubert, 224 U.S. 603 (1912).

[164] Texas & N.O.R. Co. v. Brotherhood of Railway & S.S. Clerks, 281 U.S. 548 (1930); Virginian R. Co. v. System Federation, 300 U.S. 515, 559 (1937); National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

[165] Highland v. Russell Car & Snow Plow Co., 279 U.S. 253, 261 (1929); United States v. Rock Royal Co-operative, 307 U.S. 533 (1939); Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940); Bowles v. Willingham, 321 U.S. 503 (1944).

[166] Farrington v. Tokushige, 273 U.S. 284 (1927).

[167] Yu Cong Eng v. Trinidad, 271 U.S. 500, 525 (1926).

[168] Fleming v. Rhodes, 331 U.S. 100, 107 (1947).

[169] Woods v. Stone, 333 U.S. 472 (1948).

[170] 332 U.S. 194, 203 (1947).

[171] Knox v. Lee, 12 Wall. 457, 551 (1871).

[172] Norman v. Baltimore & O.R. Co., 294 U.S. 240 (1935).

[173] 44 Stat. 1424 (1927), 33 U.S.C. 901 et seq. (1946).

[174] Paramino Lumber Co. v. Marshall, 309 U.S. 370 (1940).

[175] Mulford v. Smith, 307 U.S. 38 (1939).

[176] McFaddin v. Evans-Snider-Buel Co., 185 U.S. 505 (1902).

[177] Montoya v. Gonzales, 232 U.S. 375 (1914).

[178] Ochoa v. Hernandez y Morales, 230 U.S. 139 (1913).

[179] United States ex rel. Burnett v. Teller, 107 U.S. 64, 68 (1883).

[180] Oregon & C.R. Co. v. United States, 243 U.S. 549 (1917).

[181] Capital Trust Co. v. Calhoun, 250 U.S. 208 (1919).

[182] Frisbie v. United States, 157 U.S. 160 (1895); see also Margolin v. United States, 269 U.S. 93 (1925); Hines v. Lowrey, 305 U.S. 85 (1938).

[183] Wickard v. Filburn, 317 U.S. 111 (1942).

[184] Noble v. Union River Logging R. Co., 147 U.S. 165 (1893).

[185] Danzer Co. v. Gulf & S.I.R. Co., 268 U.S. 633 (1925).

[186] Lynch v. United States, 292 U.S. 571, 579 (1934). See also Perry v. United States, 294 U.S. 330 (1935).

[187] Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935).

[188] Wright v. Mountain Trust Co., 300 U.S. 440 (1937).

[189] Continental Illinois Nat. Bank & Trust Co. v. Chicago R.I. & P.R. Co., 294 U.S. 648 (1935).

[190] Kuehner v. Irving Trust Co., 299 U.S. 445 (1937).

[191] Re 620 Church Street Bldg. Corp., 299 U.S. 24 (1936).

[192] Lynch v. United States, 292 U.S. 571, 581 (1934).

[193] Dodge v. Osborn, 240 U.S. 118 (1916).

[194] Graham v. Goodcell, 228 U.S. 409 (1931).

[195] Anniston Mfg. Co. v. Davis, 301 U.S. 337 (1937).

[196] United States v. Heinszen & Co., 206 U.S. 370, 386 (1907).

[197] United States v. New York & C. Mail S.S. Co., 269 U.S. 304 (1925).

[198] United States v. Carolene Products Co., 304 U.S. 144 (1938); Carolene Products Co. v. United States, 323 U.S. 18 (1944).

[199] Kentucky Whip Collar Co. v. Illinois C.R. Co., 299 U.S. 334 (1937).

[200] Virginian R. Co. v. System Federation, 300 U.S. 515, 559 (1937); National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

[201] National Labor Relations Board v. Stowe Spinning Co., 336 U.S. 226 (1949).

[202] National Labor Relations Board v. Mackay Co., 304 U.S. 333 (1938).

[203] Woods v. Miller, 333 U.S. 138, 146 (1948). See also Bowles v. Willingham, 321 U.S. 503 (1944).

[204] Ex parte Jackson, 96 U.S. 727 (1878).

[205] Public Clearing House v. Coyne, 194 U.S. 497 (1904); sustained in Donaldson v. Read Magazine, 333 U.S. 178 (1948).

[206] 194 U.S. 497, 505-506.

[207] American School of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902).

[208] United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921).

[209] St. Joseph Stock Yards Co. v. United States, 298 U.S. 38 (1936); Denver Union Stock Yards Co. v. United States, 304 U.S. 470 (1938).

[210] 320 U.S. 591 (1944). The result of this case had been foreshadowed by the opinion of Justice Stone in Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942) to the effect that the Commission was not bound to the use of any single formula or combination of formulas in determining rates.

[211] 320 U.S. 591, 602, 605 (1944).

[212] American Telephone & Telegraph Co. v. United States, 299 U.S. 232 (1936); United States v. New York Telephone Co., 326 U.S. 638 (1946); Northwestern Electric Co. v. Federal Power Commission, 321 U.S. 119 (1944).

[213] Valvoline Oil Co. v. United States, 308 U.S. 141 (1939); Champlin Refining Co. v. United States, 329 U.S. 29 (1946).

[214] Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 146 (1937).

[215] St. Louis S.W. Ry. Co. v. United States, 245 U.S. 136, 143 (1917).

[216] Akron C. & Y.R. Co. v. United States, 261 U.S. 184 (1923).

[217] Dayton-Goose Creek R. Co. v. United States, 263 U.S. 456, 481, 483 (1924).

[218] Chicago, I. & L.R. Co. v. United States, 270 U.S. 287 (1926). Cf. Seaboard Air Line R. Co. v. United States, 254 U.S. 57 (1920).

[219] United States v. Berwind-White Coal Mine Co., 274 U.S. 564, 575 (1927).

[220] United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 405, 411, 415 (1909).

[221] United States v. Lowden, 308 U.S. 225 (1939).

[222] Louisville & N.R. Co. v. Mottley, 219 U.S. 467 (1911).

[223] Chicago, R.I. & P.R. Co. v. United States, 284 U.S. 80 (1931).

[224] Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 (1935).

[225] United States v. Bennett, 232 U.S. 299, 307 (1914).

[226] Cook v. Tait, 265 U.S. 47 (1924).

[227] Helvering v. Lerner Stores Corp., 314 U.S. 463, 468 (1941).

[228] Brushaber v. Union P.R. Co., 240 U.S. 1, 24 (1916).

[229] McCray v. United States, 195 U.S. 27, 61 (1904).

[230] Treat v. White, 181 U.S. 264 (1901).

[231] Flint v. Stone Tracy Co., 220 U.S. 107 (1911).

[232] National Paper & Type Co. v. Bowers, 266 U.S. 373 (1924).

[233] Billings v. United States, 232 U.S. 261, 282 (1914).

[234] Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937).

[235] Bromley v. McCaughn, 280 U.S. 124 (1929).

[236] Haavik v. Alaska Packers' Association, 263 U.S. 510 (1924).

[237] Alaska Fish Salting & By-Products Co. v. Smith, 255 U.S. 44 (1921).

[238] La Belle Iron Works v. United States, 256 U.S. 377 (1921).

[239] Helvering v. Northwest Steel Mills, 311 U.S. 46 (1940).

[240] Fernandez v. Wiener, 326 U.S. 340 (1945); cf. Coolidge v. Long, 282 U.S. 582 (1931).

[241] Untermeyer v. Anderson, 276 U.S. 440 (1928). See also Blodgett v. Holden, 275 U.S. 142 (1927); Nichols v. Coolidge, 274 U.S. 531 (1927).

[242] Heiner v. Donnan, 285 U.S. 312 (1932).

[243] United States v. Hudson, 299 U.S. 498 (1937). See also Stockdale v. Insurance Companies, 20 Wall. 323, 331, 341 (1874); Brushaber v. Union Pac. R.R., 240 U.S. 1, 20 (1916); Lynch v. Hornby, 247 U.S. 339, 343 (1918).

[244] Cooper v. United States, 280 U.S. 409 (1930); see also Reinecke v. Smith, 289 U.S. 172 (1933).

[245] Helvering v. Mitchell, 303 U.S. 391 (1938).

[246] Helvering v. Nat. Grocery Co., 304 U.S. 282 (1938).

[247] Patton v. Brady, 184 U.S. 608 (1902).

[248] Tyler v. United States, 281 U.S. 497 (1930); United States v. Jacobs, 306 U.S. 363 (1939).

[249] Reinecke v. Smith, 289 U.S. 172 (1933).

[250] Tiger v. Western Investment Co., 221 U.S. 286 (1911). See also Brader v. James, 246 U.S. 88 (1918); Williams v. Johnson, 239 U.S. 414 (1915); Lone Wolf v.. Hitchcock, 187 U.S. 553 (1903).

[251] Choate v. Trapp, 224 U.S. 665 (1912). See also English v. Richardson, 224 U.S. 680 (1912).

[252] Garfield v. United States, 211 U.S. 249 (1908). See also United States ex rel. Turner v. Fisher, 222 U.S. 204 (1911).

[253] Winton v. Amos, 255 U.S. 373 (1921).

[254] United States ex rel. Brown v. Lane, 232 U.S. 598 (1914).

[255] Walker v. McLoud, 204 U.S. 302, 309 (1907); Carpenter v. Shaw, 280 U.S. 363 (1930).

[256] United States v. Jones, 109 U.S. 513, 518 (1883); United States v. Carmack, 329 U.S. 230, 241 (1946).

[257] United States v. Lynah, 188 U.S. 445, 465 (1903).

[258] Kohl v. United States, 91 U.S. 367, 374 (1876).

[259] Chappell v. United States, 160 U.S. 499, 510 (1896).

[260] Oklahoma v. Atkinson Co., 313 U.S. 508, 534 (1941).

[261] United States v. Chemical Foundation, 272 U.S. 1, 11 (1926). See also Brown v. U.S., 8 Cr. 110 (1814); Page (Miller) v. United States, 11 Wall. 268, 304 (1871); Woodson v. Deutsche G. & S.S.V. Roessler, 292 U.S. 449 (1934); United States v. Dunnington, 146 U.S. 338 (1892); Cummings v. Deutsche Bank, 300 U.S. 115 (1937).

[262] Stoehr v. Wallace, 255 U.S. 239, 245 (1921).

[263] Silesian-American Corp. v. Clark, 332 U.S. 469 (1947); Becker Steel Co. v. Cummings, 296 U.S. 74 (1935).

[264] Russian Volunteer Fleet v. United States, 282 U.S. 481 (1931), followed in Guessefeldt v. McGrath, 342 U.S. 308 (1952).

[265] Shoemaker v. United States, 147 U.S. 282, 298 (1893).

[266] 327 U.S. 546 (1946).

[267] Ibid. 551.

[268] Ibid. 556-557; citing United States v. Gettysburg Electric R. Co., 160 U.S. 668, 680 (1896); Rindge Co. v. Los Angeles County, 262 U.S. 700, 709 (1923); Old Dominion Land Co. v. United States, 269 U.S. 55, 66 (1925); Cincinnati v. Vester, 281 U.S. 439, 446 (1930).

[269] 327 U.S. 546, 557-558.

[270] United States v. Gettysburg Electric R. Co., 160 U.S. 668 (1896).

[271] Brown v. United States, 263 U.S. 78 (1923).

[272] Monongahela Nav. Co. v. United States, 148 U.S. 312, 345 (1893).

[273] James v. Campbell, 104 U.S. 356, 358 (1882). See also Hollister v. Benedict & B. Mfg. Co., 113 U.S. 59, 67 (1885).

[274] Omnia Commercial Co. v. United States, 261 U.S. 502 (1923).

[275] International Paper Co. v. United States, 282 U.S. 399 (1931).

[276] Hannibal Bridge Co. v. United States, 221 U.S. 194, 205 (1911).

[277] Old Dominion Land Co. v. United States, 269 U.S. 55 (1925).

[278] United States v. Sponenbarger, 308 U.S. 256 (1939).

[279] 12 Wall. 457, 551 (1871).

[280] 331 U.S. 745 (1947).

[281] Ibid. 748.

[282] United States v. Causby, 328 U.S. 256 (1946).

[283] Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922). Cf. Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 1 (1919); Peabody v. United States, 231 U.S. 530 (1913).

[284] Richards v. Washington Terminal Co., 233 U.S. 546 (1914).

[285] Gibson v. United States, 166 U.S. 269, 271, 272 (1897).

[286] 10 Wall. 557 (1871).

[287] Ibid. 563.

[288] United States v. Appalachian Electric Power Co., 311 U.S. 377, 407, 409 (1940).

[289] Oklahoma v. Atkinson Co., 313 U.S. 508, 523 (1941).

[290] United States v. Commodore Park, Inc., 324 U.S. 386 (1945).

[291] Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U.S. 82 (1913).

[292] United States v. Chandler-Dunbar Co., 229 U.S. 53 (1913).

[293] United States v. Willow River Power Co., 324 U.S. 499 (1945).

[294] United States v. Appalachian Electric Power Co., 311 U.S. 377, 427 (1940).

[295] United States v. Lynah, 188 U.S. 445 (1903). See also Jacobs v. United States, 290 U.S. 13 (1933).

[296] United States v. Cress, 243 U.S. 316, 328, 329 (1917).

[297] United States v. Dickinson, 331 U.S. 745 (1947).

[298] United States v. Kansas City Ins. Co., 339 U.S. 799 (1950).

[299] United States v. Cress, 243 U.S. 316 (1917).

[300] Horstmann Co. v. United States, 257 U.S. 138 (1921).

[301] Bauman v. Ross, 167 U.S. 548 (1897); Sharp v. United States, 191 U.S. 341, 351-352, 354 (1903).

[302] United States v. Welch, 217 U.S. 333 (1910).

[303] Bauman v. Ross, 167 U.S. 548 (1897).

[304] Monongahela Nav. Co. v. United States, 148 U.S. 312, 326 (1893).

[305] Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932).

[306] Sharp v. United States, 191 U.S. 341 (1903).

[307] Monongahela Nav. Co. v. United States, 148 U.S. 312, 326 (1893).

[308] United States ex rel. T.V.A. v. Powelson, 319 U.S. 266, 281 (1943); United States v. Miller, 317 U.S. 369, 375 (1943).

[309] United States ex rel. T.V.A. v. Powelson, 319 U.S. 266, 275 (1943); United States v. New River Collieries Co., 262 U.S. 341 (1923).

[310] United States v. Miller, 317 U.S. 369, 374 (1943). See also Olson v. United States, 292 U.S. 246 (1934). Cf. Kimball Laundry Co. v. United States, 338 U.S. 1 (1949).

[311] Boom Co. v. Patterson, 98 U.S. 403 (1879); McCandless v. United States, 298 U.S. 342 (1936).

[312] United States v. Chandler-Dunbar Co., 229 U.S. 53 (1913).

[313] United States v. John J. Felin & Co., 334 U.S. 624 (1948).

[314] United States v. Commodities Trading Corp., 339 U.S. 121 (1950).

[315] United States v. Cors, 337 U.S. 325, 333 (1949). In United States v. Toronto Nav Co., 338 U.S. 396 (1949) the Court reversed a decision of the Court of Claims which based an award for an obsolete Great Lakes car ferry in part on a capitalization of its prior earnings, and in part on isolated sales of similar vessels used between Florida and Cuba.

[316] Mitchell v. United States, 267 U.S. 341 (1925).

[317] United States v. General Motors Corp., 323 U.S. 373, 379 (1945).

[318] Ibid. 382-384.

[319] United States v. Petty Motor Co., 327 U.S. 372 (1946).

[320] 338 U.S. 1 (1949).

[321] 341 U.S. 114 (1951).

[322] Danforth v. United States, 308 U.S. 271, 284 (1939).

[323] United States v. Klamath Indians, 304 U.S. 119, 123 (1938); Jacobs v. United States, 290 U.S. 13, 17 (1933).

[324] Albrecht v. United States, 329 U.S. 599 (1947).

[325] Henkels v. Sutherland, 271 U.S. 298 (1926). See also Phelps v. United States, 274 U.S. 341 (1927).

[326] Monongahela Nav. Co. v. United States, 148 U.S. 312, 327 (1893).

[327] United States v. Jones, 109 U.S. 513, 519 (1883).

[328] Bauman v. Ross, 167 U.S. 548, 593 (1897).

[329] United States v. Lee, 106 U.S. 196, 220 (1882).

[330] Jacobs v. United States, 290 U.S. 13 (1933); United States v. Great Falls Mfg. Co., 112 U.S. 645 (1884).

[331] Hurley v. Kincaid, 285 U.S. 95 (1932).

[332] Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 659 (1890).

[333] United States v. Russell, 13 Wall. 623 (1871).

[334] Shoemaker v. United States, 147 U.S. 282, 302 (1893).



AMENDMENT 6

RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS

Page Coverage of the amendment 877 Offenses against the United States 877 Trial by jury 878 Impartial jury 879 Place of trial 880 Definition of crime 881 Right of confrontation 884 Assistance of counsel 884

RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS

Amendment 6

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Coverage of the Amendment

Criminal prosecutions in the District of Columbia[1] and in incorporated territories[2] must conform to this amendment, but those in unincorporated territories need not.[3] For this purpose, Alaska was held to be an incorporated territory even before the organization of its territorial government.[4] In in re Ross[5] the requirements of this amendment were held to cover only citizens and others within the United States or who are brought to the United States for trial for alleged offenses committed elsewhere, not to citizens residing or temporarily sojourning abroad.[6] Accordingly, laws passed to carry into effect treaties granting extraterritorial rights were not rendered unconstitutional by the fact that they did not secure to an accused the right to trial by jury.

Offenses Against the United States

There are no common law offenses against the United States. Only those acts which Congress has forbidden, with penalties for disobedience of its command, are crimes.[7] As used in the Constitution the word "crime" embraces only offenses of a serious character. Petty offenses may be proceeded against summarily in any tribunal legally constituted for that purpose.[8] The nature of the act and the severity of punishment prescribed determine whether an offense is serious or petty. A penalty of $50 for a violation, not necessarily involving moral delinquency, of a revenue statute indicates only a petty offense.[9] The unlawful sale of the unused portion of railway excursion tickets without a license, is at most an infringement of local police regulations; and its moral quality is relatively inoffensive; it may therefore be tried without a jury.[10] But a charge of driving an automobile recklessly, so as to endanger life and property, is a "grave offense" for which a jury trial is requisite.[11] A conspiracy to invade the rights of another person also falls in that category.[12]

Actions to recover penalties imposed by act of Congress,[13] deportation proceedings[14] and contempt proceedings[15] for violation of an injunction have been held not to be criminal prosecutions. Only a prosecution which is technically criminal in its nature falls within the purview of Amendment VI.[16] The concept of a criminal prosecution is much narrower than that of a "criminal case" under the Fifth Amendment.[17]

Trial by Jury

The trial by jury required by the Constitution includes all the essential elements of jury trial which were recognized in this country and in England when the Constitution was adopted;[18] a jury must consist of twelve men, neither more nor less;[19] the trial must be held in the presence and under the superintendence of a judge having power to instruct the jurors as to the law and advise them in respect of the facts,[20] and the verdict must be unanimous.[21] But the requirement of a jury trial is not jurisdictional; it is a privilege which the defendant may waive with the consent of the Government and the approval of the court. There is no distinction between a complete waiver of a jury and a consent to be tried by less than twelve men.[22] When a person is charged with more than one crime, the right to a speedy trial does not require that he be first tried on the earliest indictment; no constitutional right is violated by removing him to another jurisdiction for trial on a later indictment.[23]

Impartial Jury

"* * *, the guarantee of an impartial jury to the accused in a criminal prosecution, * * *, secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offense charged. * * * To accord to the accused a right to be tried by a jury, in an appellate court, after he has been once fully tried otherwise than by a jury, in the court of original jurisdiction, and sentenced to pay a fine or be imprisoned for not paying it, does not satisfy the requirements of the Constitution."[24]

The qualification of government employees to serve on juries in the District of Columbia has been the principal source of controversy concerning the meaning of the phrase "impartial jury." In 1909, the Supreme Court decided, on common law grounds, that such employees were disqualified in criminal proceedings instituted by the Government.[25] As the proportion of public to private employees increased, this decision created difficulties in securing properly qualified jurors. To meet the situation, Congress removed the disqualification by statute in 1935. In United States v. Wood,[26] the act was held valid as applied in a criminal prosecution for theft from a private corporation. By a narrow majority the Court has subsequently held that government employees as a class are not disqualified by an implied bias against a person accused of violating the federal narcotics statutes,[27] nor against an officer of the Communist party charged with willful failure to appear before a Congressional committee in compliance with a subpoena.[28] In both cases, the way was left open for a defendant to establish the disqualification of federal employees by adducing proof of actual bias.

The Constitution does not require Congress to allow peremptory challenge to jurors in criminal cases. Consequently the contention that several defendants being tried together on a charge of conspiracy were denied a trial by an impartial jury because each was not allowed the full statutory number of peremptory challenges was without merit.[29] It is good ground for challenge for cause that a juror has formed an opinion as to the issue to be tried. But every opinion which a juror may entertain does not necessarily disqualify him. Upon the trial of the issue of fact raised by such a challenge, the Court must determine whether the nature and strength of the opinion are such as in law necessary to raise the presumption of partiality.[30] A member of the Socialist party is not denied any constitutional right by being tried by a jury composed exclusively of members of other parties and of property owners.[31]

Place of Trial

An accused cannot be tried in one district under an indictment showing that the offense was committed in another;[32] the locality in which the offense is charged to have been committed determines the place and court of trial.[33] In a prosecution for conspiracy, the accused may be tried in any State and district where an overt act was performed.[34] Where a United States Senator was indicted for agreeing to receive compensation for services to be rendered in a proceeding before a government department, and it appeared that a tentative arrangement for such services was made in Illinois and confirmed in St. Louis, the defendant was properly tried in St. Louis, although he was not physically present in Missouri when notice of ratification was dispatched.[35] The offense of obtaining transportation of property in interstate commerce at less than the carrier's published rates,[36] or the sending of excluded matter through the mails,[37] may be made triable in any district through which the forbidden transportation is conducted. By virtue of a presumption that a letter is delivered in the district to which it is addressed, the offense of scheming to defraud a corporation by mail was held to have been committed in that district although the letter was posted elsewhere.[38] The Constitution does not require any preliminary hearing before issuance of a warrant for removal of an accused to the court having jurisdiction of the charge.[39] The assignment of a district judge from one district to another, conformably to statute, does not create a new judicial district whose boundaries are undefined nor subject the accused to trial in a district not established when the offense with which he is charged was committed.[40] For offenses against federal laws not committed within any State, Congress has the sole power to prescribe the place of trial; such an offense is not local and may be tried at such place as Congress may designate.[41] The place of trial may be designated by statute after the offense has been committed.[42]

Definition of Crime

The effect of the clause entitling an accused to know the nature and cause of the accusation against him commences with the statutes fixing or declaring offenses. It adopts the general rule of the common law that such statutes are not to be construed to embrace offenses which are not within their intention and terms. Under this clause it is necessary that a crime "be in some way declared by the legislative power"; it "cannot be constructed by the courts from any supposed intention of the legislature which the statute fails to state."[43] A criminal statute which is so vague that it leaves the standard of guilt to the "variant views of the different courts and juries which may be called on to enforce it"[44] cannot be squared with this provision. Thus it was held, in the United States v. Cohen Grocery Co.,[45] that a statute making it unlawful "for any person willfully * * * to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries" was unconstitutional because it was not "adequate to inform persons accused of violation thereof of the nature and cause of the accusation against them."[46] But a provision of the Immigration Act[47] which makes it a felony for an alien against whom a specified order of deportation is pending to "willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure" is not, on its face, void for indefiniteness.[48]

An important aspect of this problem was presented, but not definitely settled, in Screws v. United States.[49] There State law enforcement officers had been convicted of violating a federal law making it a crime for anyone acting under color of any law willfully to deprive anyone of rights secured by the Constitution of the United States.[50] The indictment charged that in beating to death a man whom they had just arrested, these officers had deprived him of life without due process of law. The defendant claimed that the statute was unconstitutional insofar as it made criminal acts in violation of the due process clause, because that concept was too vague to supply an ascertainable standard of guilt.[51] Four opinions were written in the Supreme Court, no one of which obtained the concurrence of a majority of the Justices. To "avoid grave constitutional questions" four members construed the word "willfully" as "connoting a purpose to deprive a person of a specific constitutional right,"[52] and held that such "requirement of a specific intent to deprive a person of a federal right made definite by decision or other rule of law saves the Act from any charge of unconstitutionality on the grounds of vagueness."[53] Justices Murphy and Rutledge considered the statute to be sufficiently definite with respect to the offense charged and thought it unnecessary to anticipate doubts that might arise in other cases.[54] However, to prevent a stalemate, Justice Rutledge voted with the four members who believed the case should be reversed to be tried again on their narrower interpretation of the statute. Justices Roberts, Frankfurter and Jackson found the act too indefinite to be rescued by a restrictive interpretation. With respect to the effect of the requirement of willfulness, they said: "If a statute does not satisfy the due-process requirement of giving decent advance notice of what it is which, if happening, will be visited with punishment, so that men may presumably have an opportunity to avoid the happening * * *, then 'willfully' bringing to pass such an undefined and too uncertain event cannot make it sufficiently definite and ascertainable. 'Willfully' doing something that is forbidden, when that something is not sufficiently defined according to the general conceptions of requisite certainty in our criminal law, is not rendered sufficiently definite by that unknowable having been done 'willfully.' It is true also of a statute that it cannot lift itself up by its bootstraps."[55] In Williams v. United States,[56] however, it was held by a sharply divided Court that Sec. 20 did not err for vagueness where the indictment made it clear that the constitutional right violated by the defendant was immunity from the use of force and violence to obtain a confession, and this meaning was also made clear by the trial judge's charge to the jury.[57]

Statutes prohibiting the coercion of employers to hire unneeded employees,[58] establishing minimum wages and maximum hours of service for persons engaged in the production of goods for interstate commerce,[59] forbidding undue or unreasonable restraints of trade,[60] making it unlawful to build fires near any forest or inflammable material,[61] banning the receipt of contributions by members of Congress from federal employees for any political purpose,[62] or penalizing the copying or taking of documents connected with the national defense, with intent, or reason to believe that they are to be used to the injury of the United States or to the advantage of a foreign nation,[63] have been held to be sufficiently definite to be constitutional. A provision penalizing excessive charges in connection with loans from the Home Owners Loan Corporation was not rendered indefinite by the exception of "ordinary fees for services actually rendered,"[64] nor was a statute forbidding misstatement of the quantity of the contents of a package wanting in certainty by reason of a proviso permitting "reasonable variations."[65]

The constitutional right to be informed of the nature and cause of the accusation entitles the defendant to insist that the indictment apprise him of the crime charged with such reasonable certainty that he can make his defense and protect himself after judgment against another prosecution on the same charge.[66] No indictment is sufficient if it does not allege all of the ingredients which constitute the crime. Where the language of a statute is, according to the natural import of the words, fully descriptive of the offense, it is sufficient if the indictment follows the statutory phraseology;[67] but where the elements of the crime have to be ascertained by reference to the common law or to other statutes, it is not sufficient to set forth the offense in the words of the statute; the facts necessary to bring the case within the statutory definition must also be alleged.[68] If an offense cannot be accurately and clearly described without an allegation that the accused is not within an exception contained in the statutes, an indictment which does not contain such allegation is defective.[69] Despite the omission of obscene particulars, an indictment in general language is good if the unlawful conduct is so described so as reasonably to inform the accused of the nature of the charge sought to be established against him.[70] The Constitution does not require the Government to furnish a copy of the indictment to an accused.[71]

Right of Confrontation

The right of confrontation did not originate in the Sixth Amendment; it was a common law right having recognized exceptions. The purpose of the constitutional provision was to preserve that right, but not to broaden it or wipe out the exceptions.[72] The amendment does not accord a right to be apprised of the names of witnesses who appeared before a grand jury.[73] It does not preclude the admission of dying declarations,[74] nor of the stenographic report of testimony given at a former trial by a witness since deceased.[75] An accused who is instrumental in concealing a witness cannot complain of the admission of evidence to prove what that witness testified at a former trial on a different indictment.[76] If the absence of the witness is chargeable to the negligence of the prosecution, rather than to the procurement of the accused, evidence given in a preliminary hearing before a United States Commissioner cannot be used at the trial.[77] A statute which declared that the judgment of conviction against the principal felons should be conclusive evidence, in a prosecution against persons to whom they had transferred property, that the property had been stolen or embezzled from the United States, was held to contravene this clause.[78]

Assistance of Counsel

The Sixth Amendment withholds from the federal courts, in all criminal proceedings, the power to deprive an accused of his life or liberty unless he has waived, or waives, the assistance of counsel.[79] Since deportation proceedings are not criminal in character, the admission of testimony given by the alien during investigation prior to arrest did not render the hearing unfair, despite the fact that he had not been advised of his right to have counsel or to decline to answer questions as to his alienage.[80] The right to counsel is violated where, over the defendant's objection, the court requires his counsel to represent a co-defendant whose interest may possibly conflict with his;[81] likewise where the trial judge decided, without notice to a defendant and without his presence, that the latter had consented to be represented by counsel who also represented another defendant in the same case.[82] The right may be waived by a defendant whose education qualifies him to make an intelligent choice.[83] A sentence imposed upon a plea of guilty is invalid if such plea was entered through deception or coercion of the prosecuting attorney, or in reliance upon erroneous advice given by a lawyer in the employ of the Government, where the defendant did not have the assistance of counsel and had not understandingly waived the right to such assistance.[84]

Notes

[1] Callan v. Wilson, 127 U.S. 540 (1888).

[2] Reynolds v. United States, 98 U.S. 145 (1879). See also Lovato v. New Mexico, 242 U.S. 199 (1916).

[3] Balzac v. Porto Rico, 258 U.S. 298, 304-305 (1922).

[4] Rassmussen v. United States, 197 U.S. 516 (1905).

[5] 140 U.S. 453 (1891).

[6] Ibid. 464.

[7] United States v. Hudson & Goodwin, 7 Cr. 32, 33 (1812); United States v. Coolidge, 1 Wheat. 415 (1816); United States v. Britton, 108 U.S. 199, 206 (1883); United States v. Eaton, 144 U.S. 677, 687 (1892).

[8] Callan v. Wilson, 127 U.S. 540, 552 (1888).

[9] Schick v. United States, 195 U.S. 65, 68 (1904).

[10] District of Columbia v. Clawans, 300 U.S. 617 (1937).

[11] District of Columbia v. Colts, 282 U.S. 63 (1930).

[12] Callan v. Wilson, 127 U.S. 540 (1888).

[13] Oceanic Navigation Co. v. Stranahan, 214 U.S. 320 (1909); Hepner v. United States, 213 U.S. 103 (1909); United States v. Regan, 232 U.S. 37 (1914).

[14] United States ex rel. Turner v. Williams, 194 U.S. 279, 289 (1904); Zakonaite v. Wolf, 226 U.S. 272 (1912).

[15] In re Debs, 158 U.S. 564, 594 (1895); Gompers v. United States, 233 U.S. 604 (1914); Myers v. United States, 264 U.S. 95 (1924).

[16] United States v. Zucker, 161 U.S. 475, 481 (1896).

[17] Counselman v. Hitchcock, 142 U.S. 547, 563 (1892).

[18] Patton v. United States, 281 U.S. 276 (1930).

[19] Thompson v. Utah, 170 U.S. 343, 350 (1898); Rassmussen v. United States, 197 U.S. 518 (1905).

[20] Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899).

[21] Maxwell v. Dow, 176 U.S. 581, 586 (1900); Andres v. United States, 333 U.S. 740 (1948).

[22] Patton v. United States, 281 U.S. 276 (1930).

[23] Beavers v. Haubert, 198 U.S. 77 (1905).

[24] Callan v. Wilson, 127 U.S. 540, 557 (1888).

[25] Crawford v. United States, 212 U.S. 183 (1909).

[26] 299 U.S. 123 (1936).

[27] Frazier v. United States, 335 U.S. 497 (1948).

[28] Dennis v. United States, 339 U.S. 162 (1950).

[29] Stilson v. United States, 250 U.S. 583, 586 (1919).

[30] Reynolds v. United States, 98 U.S. 145 (1879).

[31] Ruthenberg v. United States, 245 U.S. 480 (1918).

[32] Salinger v. Loisel, 265 U.S. 224 (1924).

[33] Beavers v. Henkel, 194 U.S. 73, 83 (1904).

[34] Brown v. Elliott, 225 U.S. 392 (1912); Hyde v. United States, 225 U.S. 347 (1912); Haas v. Henkel, 216 U.S. 462 (1910).

[35] Burton v. United States, 202 U.S. 344 (1906).

[36] Armour Packing Co. v. United States, 209 U.S. 56 (1908).

[37] United States v. Johnson, 323 U.S. 273, 274 (1944).

[38] Hagner v. United States, 285 U.S. 427, 429 (1932).

[39] Hughes v. Gault, 271 U.S. 142 (1926). Cf. Tinsley v. Treat, 205 U.S. 20 (1907); Beavers v. Henkel, 194 U.S. 73, 84 (1904).

[40] Lamar v. United States, 241 U.S. 103 (1916).

[41] Jones v. United States, 137 U.S. 202, 211 (1890); United States v. Dawson, 15 How. 467, 488 (1853).

[42] Cook v. United States, 138 U.S. 157, 182 (1891). See also United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 250-254 (1940); also United States v. Johnson, 323 U.S. 273 (1944).

[43] United States v. Potter, 56 F. 83, 88 (1892). See also Viereck v. United States, 318 U.S. 236 (1943); Kraus Bros. v. United States, 327 U.S. 614, 621 (1946).

[44] United States v. Cohen Grocery Co., 264 F. 218, 220 (1920), affirmed 255 U.S. 81 (1921).

[45] 255 U.S. 81 (1921).

[46] Ibid. 89.

[47] 8 U.S.C. Sec. 145 (c).

[48] United States v. Spector, 343 U.S. 169 (1952).

[49] 325 U.S. 91 (1945).

[50] Section 20 of the Criminal Code; 18 U.S.C. Sec. 242.

[51] 325 U.S. 91, 94, 95.

[52] Ibid. 101.

[53] Ibid. 103.

[54] Ibid. 113, 135.

[55] Ibid. 154.

[56] 341 U.S. 97 (1951).

[57] See also Koehler et al. v. United States, 342 U.S. 852 (1951).

[58] United States v. Petrillo, 332 U.S. 1 (1947).

[59] United States v. Darby, 312 U.S. 100, 125 (1941).

[60] Nash v. United States, 229 U.S. 373 (1913).

[61] United States v. Alford, 274 U.S. 264 (1927).

[62] United States v. Wurzbach, 280 U.S. 396 (1930).

[63] Gorin v. United States, 312 U.S. 19 (1941).

[64] Kay v. United States, 303 U.S. 1 (1938).

[65] United States v. Shreveport Grain & Elevator Co., 287 U.S. 77 (1932).

[66] United States v. Cruikshank, 92 U.S. 542, 544, 558 (1876); United States v. Simmons, 96 U.S. 360 (1878); Bartell v. United States, 227 U.S. 427 (1913); Burton v. United States, 202 U.S. 344 (1906).

[67] Potter v. United States, 155 U.S. 438, 444 (1894).

[68] United States v. Carll, 105 U.S. 611 (1882).

[69] United States v. Cook, 17 Wall. 168, 174 (1872).

[70] Rosen v. United States, 161 U.S. 29, 40 (1896).

[71] United States v. Van Duzee, 140 U.S. 169, 173 (1891).

[72] Salinger v. United States, 272 U.S. 542, 548 (1926).

[73] Wilson v. United States, 221 U.S. 361 (1911).

[74] Kirby v. United States, 174 U.S. 47, 61 (1809); Robertson v. Baldwin, 165 U.S. 275, 282 (1897).

[75] Mattox v. United States, 156 U.S. 237, 240 (1895).

[76] Reynolds v. United States, 98 U.S. 145, 160 (1879).

[77] Motes v. United States, 178 U.S. 458 (1900).

[78] Kirby v. United States, 174 U.S. 47 (1899).

[79] Johnson v. Zerbst, 304 U.S. 458, 463 (1938).

[80] United States ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923).

[81] Glasser v. United States, 315 U.S. 60 (1942).

[82] United States v. Hayman, 342 U.S. 205 (1952).

[83] Adams v. United States, 317 U.S. 269 (1942).

[84] Walker v. Johnston, 312 U.S. 275 (1941); Von Moltke v. Gillies, 332 U.S. 708 (1948). See also United States ex rel. McCann v. Adams, 320 U.S. 220 (1943).



AMENDMENT 7

CIVIL TRIALS

Page Trial by jury in civil cases 891 Origin and purpose of the amendment 891 Trial by jury, elements of, preserved 891 To what courts and cases applicable 892 Cases not governed by the amendment 893 Restrictive force of the amendment 894 Judge and jury 895 Line drawn by the common law 895 Directed verdicts 896 Waiver of right of trial by jury 897 Appeals from State courts to the Supreme Court 897

CIVIL TRIALS

Amendment 7

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Trial by Jury in Civil Cases

ORIGIN AND PURPOSE OF THE AMENDMENT

Late in the Federal Convention it was moved that a clause be inserted in article III, section 2 of the draft Constitution to read "* * * and a trial by jury shall be preserved as usual in civil cases." The proposal failed when it was pointed out that the make-up and powers of juries differed greatly in different States and that a uniform provision for all States was impossible.[1] The objection evidently anticipated that in cases falling to their jurisdiction on account of the diversity of citizenship of the parties, the federal courts would conform their procedure to the laws of the several States.[2] The omission, however, raised an objection to the Constitution which "was pressed with an urgency and zeal * * * well-nigh preventing its ratification."[3] Nor was the agitation assuaged by Hamilton's suggestion in The Federalist that Congress would have ample power, in establishing the lower federal courts and in making "exceptions" to the Supreme Court's appellate jurisdiction, to safeguard jury trial in civil cases according to the standards of the common law.[4] His argument bore fruit, nevertheless, in the Seventh Amendment, whereby, in the words of the Court, the right of trial by jury is preserved as it "existed under the English common law when the amendment was adopted."[5]

TRIAL BY JURY, ELEMENTS OF, PRESERVED

"Trial by jury," in the sense of Amendment VII, "is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts and (except in acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence."[6] A further requisite is "that there shall be a unanimous verdict of the twelve jurors in all federal courts where a jury trial is held."[7] Assuming such a jury, the amendment has for its primary purpose the preservation of "* * * the common law distinction between the province of the court and that of the jury, whereby, in the absence of express or implied consent to the contrary, issues of law are resolved by the court and issues of fact are to be determined by the jury under appropriate instructions by the court."[8] But the amendment "does not exact the retention of old forms of procedure" nor does it "prohibit the introduction of new methods of ascertaining what facts are in issue * * *" or new rules of evidence.[9]

TO WHAT COURTS AND CASES APPLICABLE

Amendment VII governs only courts which sit under the authority of the United States,[10] including courts in the territories[11] and the District of Columbia.[12] It does not apply to a State court even when it is enforcing a right created by federal statute.[13] Its coverage is "* * * limited to rights and remedies peculiarly legal in their nature, and such as it was proper to assert in courts of law and by the appropriate modes and proceedings of courts of law."[14] The term "common law" is used in contradistinction to suits in which equitable rights alone were recognized at the time of the framing of the amendment and equitable remedies were administered.[15] Hence it does not apply to cases where recovery of money damages is incident to equitable relief even though damages might have been recovered in an action at law.[16] Nor does it apply to cases in admiralty and maritime jurisdiction, in which the trial is by a court without a jury.[17] Nor does it reach statutory proceedings unknown to the common law, such as an application to a court of equity to enforce an order of an administrative body.[18]

CASES NOT GOVERNED BY THE AMENDMENT

Omission of a jury has been upheld in the following instances on the ground that the suit in question was not a suit at common law within the meaning of the Seventh Amendment;

(1) Suits to enforce claims against the United States.[19]

(2) Suit authorized by Territorial law against a municipality, based upon a moral obligation only.[20]

(3) Suit to cancel a naturalization certificate for fraud.[21]

(4) Order of deportation of an alien.[22]

(5) Assessment of damages in patent infringement suit.[23]

(6) Longshoremen's and Harbor Workers' Compensation Act.[24]

(7) Jurisdiction of bankruptcy court to examine into reasonableness of fees paid by person for legal services in contemplation of bankruptcy.[25]

(8) Final decision of customs appraisers in regard to value of imports.[26]

It has been further held that there was no infringement of the constitutional right to trial by jury in the following circumstances:

(1) A territorial statute requiring specific answers to special interrogations, in addition to a general verdict.[27]

(2) A rule of a District of Columbia court authorizing judgment by default in an action ex contractu, on failure to show by affidavit a good defense.[28]

(3) A federal court's observance of a State statute making a certified copy of a coroner's verdict prima facie evidence of the facts stated.[29]

(4) A federal statute (24 Stat. 379) giving prima facie effect to findings of the Interstate Commerce Commission.[30]

(5) An order of a District of Columbia court appointing an auditor in a law case to examine books and papers, make computations, hear testimony, and render a report which will serve as prima facie evidence of the facts found and conclusions reached, unless rejected by the court.[31]

(6) A decree of the Supreme Court enjoining, in the exercise of its original jurisdiction, the State of Louisiana from continuing to trespass upon lands under the ocean beyond its coasts and requiring the State to account for the money derived from that area.[32]

RESTRICTIVE FORCE OF THE AMENDMENT

But the absolute right to a trial of the facts by a jury may not be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of the legal action or during its pendency. Such aid in the federal courts must be sought in separate proceedings.[33] Federal statutes from Revised Statutes (Sec. 723) through the Judicial Code (Sec. 267), prohibiting courts of the United States to sustain suits in equity where the remedy is complete at law, serve to guard the right of trial by jury, and should be liberally construed.[34] So also should Equity Rule 30, requiring the answer to a bill in equity to state any counterclaim arising out of the same transaction; such rule was not intended to change the line between law and equity, and must be construed as referring to equitable counterclaims only.[35] Nor may the distinction between law and equity, so far as federal courts are concerned, be obliterated by State legislation.[36] So, where State law, in advance of judgment, treated the whole proceeding upon a simple contract, including determination of validity and of amount due, as an equitable proceeding, it brought the case within the federal equity jurisdiction on removal. Ascertainment of plaintiff's demand being properly by action at law, however, the fact that the equity court had power to summon a jury on occasion did not afford an equivalent of the right of trial by jury secured by the Seventh Amendment.[37] But where State law gives an equitable remedy, such as to quiet title to land, the federal courts will enforce it if it does not obstruct the rights of the parties as to trial by jury.[38] An order of the Court of Claims attempting to reinstate a dismissed case in violation of plaintiff's right to dismiss violates the latter's right to trial by jury and may be corrected by mandamus.[39]

Judge and Jury

LINE DRAWN BY THE COMMON LAW

As was noted above, the primary purpose of the amendment was to preserve the historic line separating the province of the jury from that of the judge, without at the same time preventing procedural improvement which did not transgress this line. Elucidating this formula, the Court has achieved the following results: It is constitutional for a federal judge, in the course of trial, to express his opinion upon the facts, provided all questions of fact are ultimately submitted to the jury;[40] to call the jury's attention to parts of the evidence he deems of special importance,[41] being careful to distinguish between matters of law and matters of opinion in relation thereto;[42] to inform the jury when there is not sufficient evidence to justify a verdict, that such is the case;[43] to direct the jury, after plaintiff's case is all in, to return a verdict for the defendant on the ground of the insufficiency of the evidence;[44] to set aside a verdict which in his opinion is against the law or the evidence, and order a new trial;[45] to refuse defendant a new trial on the condition, accepted by plaintiff, that the latter remit a portion of the damages awarded him;[46] but not, on the other hand, to deny plaintiff a new trial on the converse condition, although defendant accepted it.[47]

DIRECTED VERDICTS

In 1913 the Court held, in Slocum v. New York Life Insurance Company,[48] that where upon the evidence a federal trial court, sitting in New York, ought to have directed a verdict for one party but the jury found for the other contrary to the evidence, the amendment rendered it improper for a federal appeals court to order, in accordance with New York practice, the entry of a judgment contrary to the verdict; that the only course open to either court was to order a new trial. While plainly in accordance with the common law as it stood in 1791, the decision was five-to-four and was subjected to a heavy fire of professional criticism urging the convenience of the thing and the theory of the capacity of the common law for growth.[49] It has, moreover, been impaired, if not completely undermined by certain more recent holdings. In the first of these,[50] in which the same Justice spoke for the Court as in the Slocum Case, it was held that a trial court had the right to enter a judgment on the verdict of the jury for the plaintiff after overruling a motion by defendant for dismissal on the ground of insufficient evidence. The Court owned that its ruling was out of line with some of its expressions in the Slocum Case.[51] In the second case[52] the Court sustained a United States district court in Arkansas, in an action between parties of diverse citizenship, in rejecting a motion by defendant for dismissal and peremptorily directing a verdict for the plaintiff. The Supreme Court held that there was ample evidence to support the verdict and that the trial court, in following Arkansas procedure, had acted consistently with the Federal Conformity Act.[53] In the third case,[54] which involved an action against the Government for benefits under a war risk insurance policy which had been allowed to lapse, the trial court directed a verdict for the Government on the ground of the insufficiency of the evidence and was sustained in so doing by both the circuit court of appeals and the Supreme Court. Three Justices, speaking by Justice Black, dissented in an opinion in which it is asserted that "today's decision marks a continuation of the gradual process of judicial erosion which in one-hundred-fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment."[55] That the Court should experience occasional difficulty in harmonizing the idea of preserving the historic common law covering the relations of judge and jury with the notion of a developing common law is not surprising.

WAIVER OF RIGHT OF TRIAL BY JURY

Parties have a right to enter into a stipulation waiving a jury and submitting the case to the court upon an agreed statement of facts, even without any legislative provision for waiver.[56] "* * * Congress has, by statute, provided for the trial of issues of fact in civil cases by the court without the intervention of a jury, only when the parties waive their right to a jury by a stipulation in writing. Revised Statutes sections 648, 649."[57] This statutory provision for a written stipulation, however, does not preclude other kinds of waivers.[58] But every reasonable presumption should be indulged against a waiver.[59] None is to be implied from a request for a directed verdict.[60]

APPEALS FROM STATE COURTS TO THE SUPREME COURT

The last clause of Amendment VII is not restricted in its application to suits at common law tried before juries in United States courts. It applies equally to a case tried before a jury in a State court and brought to the United States Supreme Court on appeal.[61]

Notes

[1] 2 Farrand, Records, 628.

[2] See Federal Conformity Act, 28 U.S.C.A. Sec. 724.

[3] 2 Story, Commentaries on the Constitution, Sec. 1763.

[4] Federalist, Nos. 81 and 83.

[5] Baltimore & C. Line v. Redman, 295 U.S. 654, 657 (1935); Parsons v. Bedford, 3 Pet. 433, 446-448 (1830).

[6] Capital Traction Co. v. Hof, 174 U.S. 1, 13, 14 (1899). Here it was held that a civil trial before a justice of the peace in the District of Columbia, although by a jury of twelve men, was not a jury trial in the sense of Amendment VII.

[7] Maxwell v. Dow, 176 U.S. 581, 586 (1900). See also American Publishing Co. v. Fisher, 166 U.S. 464 (1897); Springville v. Thomas, 166 U.S. 707 (1897); Andres v. United States, 333 U.S. 740, 748 (1948).

[8] Baltimore & C. Line v. Redman, 295 U.S. 654, 657 (1935); Walker v. New Mexico, & S.P.R. Co., 165 U.S. 593, 596 (1897); Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 497-499 (1931); Dimick v. Schiedt, 293 U.S. 474, 476, 485-486 (1935).

[9] Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 498 (1931); Ex parte Peterson, 253 U.S. 300, 309 (1920).

[10] Pearson v. Yewdall, 95 U.S. 294, 296 (1877). See also Edwards v. Elliott, 21 Wall. 532, 557 (1874); Justices of the Sup. Ct. v. United States ex rel. Murray, 9 Wall. 274, 277 (1870); Walker v. Sauvinet, 92 U.S. 90 (1876); St. Louis & K.C. Land Co. v. Kansas City, 241 U.S. 419 (1916).

[11] Webster v. Reid, 11 How. 437, 460 (1851); Kennon v. Gilmer, 131 U.S. 22, 28 (1889).

[12] Capital Traction Co. v. Hof, 174 U.S. 1, 5 (1899).

[13] Minneapolis & St. L.R. Co. v. Bombolis, 241 U.S. 211 (1916), which involved The Federal Employers Liability Act of 1908. The ruling is followed in four other cases in the same volume. See ibid. 241, 261, 485 and 494.

[14] Shields v. Thomas, 18 How. 253, 262 (1856).

[15] Parsons v. Bedford, 3 Pet. 433, 447 (1830); Barton v. Barbour, 104 U.S. 126, 133 (1881).

[16] Clark v. Wooster, 119 U.S. 322, 325 (1886); Pease v. Rathbun-Jones Eng. Co., 243 U.S. 273, 279 (1917).

[17] Parsons v. Bedford, above; Waring v. Clarke, 5 How. 441, 460 (1847). See also The "Sarah," 8 Wheat. 390, 391 (1823), and cases there cited.

[18] Labor Board v. Jones & Laughlin, 301 U.S. 1, 48 (1937). See also Interstate Commerce Commission v. Brimson, 154 U.S. 447, 488 (1894); Yakus v. United States, 321 U.S. 414, 447 (1944).

[19] McElrath v. United States, 102 U.S. 426, 440 (1880). See also Galloway v. United States, 319 U.S. 372, 388 (1943).

[20] Guthrie Nat. Bank v. Guthrie, 173 U.S. 528, 534 (1899). See also United States v. Realty Co., 163 U.S. 427, 439 (1896); Jefferson City Gaslight Co. v. Clark, 95 U.S. 644, 653 (1877).

[21] Luria v. United States, 231 U.S. 9, 27 (1913).

[22] Gee Wah Lee v. United States, 25 F. (2d) 107 (1928); certiorari denied, 277 U.S. 608 (1928).

[23] Filer & S. Co. v. Diamond Iron Works, 270 F. 489 (1921); certiorari denied, 256 U.S. 691 (1921).

[24] Crowell v. Benson, 285 U.S. 22, 45 (1932).

[25] In re Wood and Henderson, 210 U.S. 246 (1908).

[26] Auffmordt v. Hedden, 137 U.S. 310, 329 (1890).

[27] Walker v. New Mexico & S.P.R. Co., 165 U.S. 593, 598 (1897).

[28] Fidelity & D. Co. v. United States, 187 U.S. 315, 320 (1902).

[29] Jensen v. Continental Life Ins. Co., 28 F. (2d) 545 (1928), certiorari denied, 279 U.S. 842 (1929).

[30] Meeker v. Lehigh Valley R. Co., 236 U.S. 434, 439 (1915).

[31] Ex parte Peterson, 253 U.S. 300 (1920).

[32] United States v. Louisiana, 339 U.S. 699 (1950).

[33] Scott v. Neely, 140 U.S. 106, 109 (1891). See also Bennett v. Butterworth, 11 How. 669 (1850); Hipp v. Babin, 19 How. 271, 278 (1857); Lewis v. Cocks, 23 Wall. 466, 470 (1874); Killian v. Ebbinghaus, 110 U.S. 568, 573 (1884); Buzard v. Houston, 119 U.S. 347, 351 (1886).

[34] Schoenthal v. Irving Trust Co., 287 U.S. 92, 94 (1932).

[35] American Mills Co. v. American Surety Co., 260 U.S. 360, 364 (1922). See also Stamey v. United States, 37 F. (2d) 188 (1929).

[36] Thompson v. Central Ohio R. Co., 6 Wall. 134 (1868).

[37] Whitehead v. Shattuck, 138 U.S. 146 (1891); Buzard v. Houston, 119 U.S. 347 (1886); Greeley v. Lowe, 155 U.S. 58, 75 (1894).

[38] Clark v. Smith, 13 Pet. 195 (1839); Holland v. Challen, 110 U.S. 15 (1884); Reynolds v. Crawfordsville First Nat. Bank, 112 U.S. 405 (1884); Chapman v. Brewer, 114 U.S. 158 (1885); Cummings v. Merchants Nat. Bank, 101 U.S. 153, 157 (1880); United States v. Landram, 118 U.S. 81 (1886); More v. Steinbach, 127 U.S. 70 (1888). Cf. Re Simons, 247 U.S. 231 (1918).

[39] Ex parte Skinner & Eddy Corp., 265 U.S. 86, 96 (1924).

[40] Vicksburg & M.R. Co. v. Putnam, 118 U.S. 545, 553 (1886); United States v. Reading Railroad, 123 U.S. 113, 114 (1887).

[41] 118 U.S. 545; where are cited Carver v. Jackson ex dem. Astor et al., 4 Pet. 1, 80 (1830); Magniac v. Thompson, 7 Pet. 348, 390 (1833); Mitchell v. Harmony, 13 How. 115, 131 (1852); Transportation Line v. Hope, 95 U.S. 297, 302 (1877).

[42] Games v. Dunn, 14 Pet. 322, 327 (1840).

[43] Sparf v. United States, 156 U.S. 51, 99-100 (1895); Pleasants v. Fant, 22 Wall. 116, 121 (1875); Randall v. Baltimore & Ohio R.R. Co., 109 U.S. 478, 482 (1883); Meehan v. Valentine, 145 U.S. 611, 625 (1892); Coughran v. Bigelow, 164 U.S. 301 (1896).

[44] Treat Mfg. Co. v. Standard Steel & Iron Co., 157 U.S. 674 (1895); Randall v. Baltimore & Ohio R.R. Co., 109 U.S. 478, 482 (1883) and cases there cited.

[45] Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899).

[46] Arkansas Land & Cattle Co. v. Mann, 130 U.S. 69, 74 (1889).

[47] Dimick v. Schiedt, 293 U.S. 474, 476-478 (1935).

[48] 228 U.S. 364 (1913).

[49] See Austin Wakeman Scott, Fundamentals of Procedure in Actions at Law (1922), 103 and articles there cited.

[50] Baltimore & C. Line v. Redman, 295 U.S. 654 (1935).

[51] Ibid. 661.

[52] Lyon v. Mutual Benefit Assn., 305 U.S. 484 (1939).

[53] 28 U.S.C.A. Sec. 724.

[54] Galloway v. United States, 319 U.S. 372 (1943).

[55] Ibid. 397. As a matter of fact, the case being a claim against the United States need not have been tried by a jury except for the allowance of Congress.

[56] Henderson's Distilled Spirits, 14 Wall. 44, 53 (1872). See also Rogers v. United States, 141 U.S. 548, 554 (1891); Parsons v. Armor, 3 Pet. 413 (1830); Campbell v. Boyreau, 21 How. 223 (1859).

[57] Baylis v. Travelers' Ins. Co., 113 U.S. 316, 321 (1885), holding it error for a judge, in absence of any waiver, to find the facts and render judgment thereon.

[58] Duignan v. United States, 274 U.S. 195, 198 (1927), holding jury trial waived by an appearance and participation in the trial without demanding a jury.

[59] Hodges v. Easton, 106 U.S. 408, 412 (1883).

[60] Aetna Insurance Co. v. Kennedy, 301 U.S. 389 (1937).

[61] See Justices of the Sup. Ct. v. United States ex rel. Murray, 9 Wall. 274 (1870); Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 242 (1897).



AMENDMENT 8

BAIL, FINES, AND OTHER PUNISHMENT FOR CRIME

Page Excessive bail 903 Excessive fines 904 Cruel and unusual punishments 904

PUNISHMENT FOR CRIME

Amendment 8

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

When the Bill of Rights was being debated in Congress, two members took exception to this proposal. One "objected to the words 'nor cruel and unusual punishment,' the import of them being too indefinite."[1] Another leveled a similar criticism at the entire amendment; "What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind."[2]

Excessive Bail

A United States District Court fixed the bail of twelve persons who were arrested on charge of conspiring to violate the Smith Act[3] at $50,000 each. This was on the theory advanced by the Government that each petitioner was a pawn in a conspiracy and in obedience to a superior would flee the jurisdiction, a theory to support which no evidence was introduced. The Court held that bail set before trial at a figure higher than reasonably calculated to assure the presence of defendant at his trial is "excessive" in the sense of the Eighth Amendment, and that the case of each defendant must be determined on its merits. Bail of larger amount than that usually fixed for serious crimes must be justified by evidence to the point.[4] But the power of the Attorney General, under Sec. 23 of the Internal Security Act of 1950,[5] to hold in custody without bail, at his discretion, pending determination as to their deportability, aliens who are members of the Communist Party of the United States, is not unconstitutional.[6]

Excessive Fines

The Supreme Court has had little to say with reference to excessive fines or bail. In an early case it held that it had no appellate jurisdiction to revise the sentence of an inferior court, even though the excessiveness of the fine was apparent on the face of the record.[7] In a dissenting opinion in United States ex rel. Milwaukee Publishing Co. v. Burleson,[8] Justice Brandeis intimated that the additional mailing costs incurred by a newspaper to which the second-class mailing privilege had been denied constituted, in effect, a fine for a past offense which, since it was made to grow indefinitely each day, was an unusual punishment interdicted by the Constitution.[9]

Cruel and Unusual Punishments

The ban against "cruel and unusual punishment" has received somewhat greater attention. In Wilkerson v. Utah[10] the Court observed that: "Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted, but it is safe to affirm that punishments of torture, ... and all others in the same line of unnecessary cruelty, are forbidden by that Amendment to the Constitution."[11] Shooting as a mode of executing the death penalty was sustained over the objection that it was cruel and unusual.

A partially successful effort has been made to enlarge the concept of unusual punishment to cover penalties which shock the sense of justice by their absolute or relative severity. Justice Field pointed the way for this development in his dissenting opinion in O'Neil v. Vermont,[12] wherein the majority refused to apply the Eighth Amendment to a State. With the concurrence of two other Justices he wrote that the amendment was directed "against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged."[13] Eighteen years later a divided Court condemned a Philippine statute prescribing fine and imprisonment of from twelve to twenty years for entry of a known false statement in a public record, on the ground that the gross disparity between this punishment and that imposed for other more serious fines made it cruel and unusual, and as such, repugnant to the Bill of Rights.[14] No constitutional infirmity was discovered in a measure punishing as a separate offense each act of placing a letter in the mails in pursuance of a single scheme to defraud.[15]

Notes

[1] 1 Annals of Congress 754 (1791).

[2] Ibid.

[3] 18 U.S.C. Sec. 371, 2385.

[4] Stack v. Boyle, 342 U.S. 1 (1951).

[5] 8 U.S.C.A. Sec. 156 (a) (1); 64 Stat. 1011.

[6] Carlson v. Landon, 342 U.S. 524 (1952).

[7] Ex parte Watkins, 7 Pet. 568, 574 (1833).

[8] 255 U.S. 407 (1921).

[9] Ibid. 435.

[10] 99 U.S. 130 (1879).

[11] Ibid. 135.

[12] 144 U.S. 323 (1892).

[13] Ibid. 339, 340.

[14] Weems v. United States, 217 U.S. 349, 371, 382 (1910).

[15] Badders v. United States, 240 U.S. 391 (1916). Cf. Donaldson v. Read Magazine, 333 U.S. 178, 191 (1948).



AMENDMENT 9

RIGHTS RETAINED BY THE PEOPLE

Amendment 9

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The only right which the Supreme Court has explicitly acknowledged as protected by this amendment is the right to engage in political activity. That recognition was accorded by way of dictum in United Public Workers v. Mitchell, where the powers of Congress to restrict the political activities of federal employees was sustained.[1] An argument that the competition of the TVA in selling electricity at rates lower than those previously charged by private companies serving the area amounted to an indirect regulation of the rates of those companies and a destruction of the liberty said to be guaranteed by the Ninth Amendment to the people of the States to acquire property and employ it in a lawful business, was summarily rejected.[2] Previously the Court had upheld the right of the TVA to sell electricity, saying that the Ninth Amendment did not withdraw the right expressly granted by section 3 of article IV to dispose of property belonging to the United States.[3]

Notes

[1] 330 U.S. 75, 94 (1947).

[2] Tennessee Electric Power Co. v. T.V.A., 306 U.S. 118, 143, 144 (1939).

[3] Ashwander v. T.V.A., 297 U.S. 288, 330, 331 (1936). See also the language of Justice Chase in Calder v. Bull, 3 Dall. 386, 388 (1798); and of Justice Miller for the Court in Loan Asso. v. Topeka, 20 Wall. 655, 662-663 (1874).



AMENDMENT 10

RESERVED STATE POWERS

Page Scope and purpose 915 The taxing power 916 The commerce power 917 Police power 918 State activities and instrumentalities 919

RESERVED STATE POWERS

Amendment 10

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Scope and Purpose

"The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified * * *."[1] That this provision was not conceived to be a yardstick for measuring the powers granted to the Federal Government or reserved to the States was clearly indicated by its sponsor, James Madison, in the course of the debate which took place while the amendment was pending concerning Hamilton's proposal to establish a national bank. He declared that: "Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States."[2] Nevertheless, for approximately a century, from the death of Marshall until 1937, the Tenth Amendment was frequently invoked to curtail powers expressly granted to Congress, notably the powers to regulate interstate commerce, to enforce the Fourteenth Amendment and to lay and collect taxes.

The first, and logically the strongest, effort to set up the Tenth Amendment as a limitation on federal power was directed to the expansion of that power by virtue of the necessary and proper clause. In McCulloch v. Maryland,[3] the Attorney-General of Maryland cited the charges made by the enemies of the Constitution that it contained "* * * a vast variety of powers, lurking under the generality of its phraseology, which would prove highly dangerous to the liberties of the people, and the rights of the states, * * *" and he cited the adoption of the Tenth Amendment to allay these apprehensions, in support of his contention that the power to create corporations was reserved by that amendment to the States.[4] Stressing the fact that this amendment, unlike the cognate section of the Articles of Confederation, omitted the word "expressly" as a qualification of the powers granted to the National Government, Chief Justice Marshall declared that its effect was to leave the question "whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument."[5]

The Taxing Power

Not until after the Civil War was the idea that the reserved powers of the States comprise an independent qualification of otherwise constitutional acts of the Federal Government actually applied to nullify, in part, an act of Congress. This result was first reached in a tax case—Collector v. Day.[6] Holding that a national income tax, in itself valid, could not be constitutionally levied upon the official salaries of State officers, Justice Nelson made the sweeping statement that "* * * the States within the limits of their powers not granted, or, in the language of the Tenth Amendment, 'reserved,' are as independent of the general government as that government within its sphere is independent of the States."[7] In 1939, Collector v. Day was expressly overruled.[8] Nevertheless, the problem of reconciling State and national interests still confronts the Court occasionally, and was elaborately considered in New York v. United States,[9] where, by a vote of six-to-two, the Court upheld the right of the United States to tax the sale of mineral waters taken from property owned by a State. Speaking for four members of the Court, Chief Justice Stone justified the tax on the ground that "The national taxing power would be unduly curtailed if the State, by extending its activities, could withdraw from it subjects of taxation traditionally within it."[10] Justices Frankfurter and Rutledge found in the Tenth Amendment "* * * no restriction upon Congress to include the States in levying a tax exacted equally from private persons upon the same subject matter."[11] Justices Douglas and Black dissented, saying: "If the power of the federal government to tax the States is conceded, the reserved power of the States guaranteed by the Tenth Amendment does not give them the independence which they have always been assumed to have."[12]

The Commerce Power

A year before Collector v. Day was decided, the Court held invalid, except as applied in the District of Columbia and other areas over which Congress has exclusive authority, a federal statute penalizing the sale of dangerous illuminating oils.[13] The Court did not refer to the Tenth Amendment. Instead, it asserted that the "* * * express grant of power to regulate commerce among the States has always been understood as limited by its terms; and as a virtual denial of any power to interfere with the internal trade and business of the separate States; except, indeed, as a necessary and proper means for carrying into execution some other power expressly granted or vested."[14] Similarly, in the Employers' Liability Cases,[15] an act of Congress making every carrier engaged in interstate commerce liable to "any" employee, including those whose activities related solely to intrastate activities, for injuries caused by negligence, was held unconstitutional by a closely divided Court, without explicit reliance on the Tenth Amendment. Not until it was confronted with the Child Labor Law, which prohibited the transportation in interstate commerce of goods produced in establishments in which child labor was employed, did the Court hold that the State police power was an obstacle to adoption of a measure which operated directly and immediately upon interstate commerce. In Hammer v. Dagenhart,[16] five members of the Court found in the Tenth Amendment a mandate to nullify this law as an unwarranted invasion of the reserved powers of the States. This decision was expressly overruled in United States v. Darby.[17]

During the twenty years following Hammer v. Dagenhart, a variety of measures designed to regulate economic activities, directly or indirectly, were held void on similar grounds. Excise taxes on the profits of factories in which child labor was employed,[18] on the sale of grain futures on markets which failed to comply with federal regulations,[19] on the sale of coal produced by nonmembers of a coal code established as a part of a federal regulatory scheme,[20] and a tax on the processing of agricultural products, the proceeds of which were paid to farmers who complied with production limitations imposed by the Federal Government,[21] were all found to invade the reserved powers of the States. In Schechter Poultry Corporation v. United States[22] the Court, after holding that the commerce power did not extend to local sales of poultry, cited the Tenth Amendment to refute the argument that the existence of an economic emergency justified the exercise of what Chief Justice Hughes called "extraconstitutional authority."[23]

In 1941 the Court came full circle in its exposition of this amendment. Having returned to the position of John Marshall four years earlier when it sustained the Social Security[24] and National Labor Relations Acts,[25] it explicitly restated Marshall's thesis in upholding the Fair Labor Standards Act in United States v. Darby.[26] Speaking for a unanimous Court, Chief Justice Stone wrote: "The power of Congress over interstate commerce 'is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.' * * * That power can neither be enlarged nor diminished by the exercise or non-exercise of state power. * * * It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. * * * Our conclusion is unaffected by the Tenth Amendment which * * * states but a truism that all is retained which has not been surrendered."[27]

Police Power

But even prior to 1937 not all measures taken to promote objectives which had traditionally been regarded as the responsibilities of the States had been held invalid. In Hamilton v. Kentucky Distilleries Co.,[28] a unanimous Court, speaking by Justice Brandeis, upheld "War Prohibition", saying: "That the United States lacks the police power, and that this was reserved to the States by the Tenth Amendment, is true. But it is none the less true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power."[29] And in a series of cases, which today seem irreconcilable with Hammer v. Dagenhart, it sustained federal laws penalizing the interstate transportation of lottery tickets,[30] of women for immoral purposes,[31] of stolen automobiles,[32] and of tick-infested cattle.[33] It affirmed the power of Congress to punish the forgery of bills of lading purporting to cover interstate shipments of merchandise,[34] to subject prison made goods moved from one State to another to the laws of the receiving State,[35] and to regulate prescriptions for the medicinal use of liquor as an appropriate measure for the enforcement of the Eighteenth Amendment.[36] But while Congress might thus prevent the use of the channels of interstate commerce to frustrate State law, it could not itself, the Court held, undertake to punish a violation of that law by discriminatory taxation; and in United States v. Constantine,[37] a grossly disproportionate excise tax imposed on retail liquor dealers carrying on business in violation of local law was held unconstitutional.