Source: The New York Daily Call, June 17th, 1911. Vol. 4, No. 168.
Public Domain: This work is free of any copyright restrictions.
Transcription and Markup: Bill Wright for marxists.org, August 2023.
MIA Editor’s Note: This is Louis B. Boudin’s response to a criticism by W. J. Ghent of his earlier article, A Serious Blunder. Boudin’s original article is linked here, and Ghent’s critique is likewise linked here.
Editor of the Call:
In The Call for June 12th, there appears an article by W. J. Ghent under the caption “The Constitution and the Courts,” wherein the writer takes exception to my article appearing in the International Socialist Review. It is a pity that Mr. Ghent should have seen fit to reply to my article in The Call, whose readers have not read my article, instead of the I. S. Review, whose readers have read it. This unfortunate circumstance compels me to begin with an explanation instead of going straight to the meat of the matter.
What Mr. Ghent calls my “attack on Representative Berger,” was a criticism of Comrade [Victor] Berger for what I believe to be a serious tactical blunder, in dealing with the power of the judiciary to annul federal legislation on the alleged ground of “unconstitutionality” as if it were a power actually given to the judiciary by the Constitution, instead of treating it as sheer usurpation. I made the point that by conceding that this right was granted by the Constitution to the judiciary we have at one stroke irretrievably given up our case against the courts. Our complaint is then against the Constitution: which, in my opinion, makes a big difference from a practical point of view.
Mr. Ghent says:
“So far as the practical issue is concerned, the curtailment of the powers of the judiciary is just about as feasible as the amendment of the Constitution.”
In this he is clearly mistaken. The powers of the judiciary can be curtailed whenever a majority of the people seriously want it. Provided, of course, they know that this power is not given by the Constitution. But the Constitution cannot be amended except by the consent of three-fourths of all the States, which is a practical impossibility to obtain, has never been obtained, and never will be by ordinary peace means. But that is not all. From the point of view of agitation and propaganda there is quite a difference, and a very practical one, between an agitation against the Constitution, on the theory that the founders of this Republic and the framers of that document were either knaves or fools, and one against the present judges, or usurping a power never granted to them by the Constitution. I have no objection to knocking the Constitution. But that knocking is, from a practical point of view, on quite a different footing from an agitation against the usurpations of the judiciary. And it is because Comrade Berger’s Constitutional amendment makes the Constitution “the main point” on this question, and desires to “focus attention” upon it, instead of on the judiciary, that I criticised it.
Of course, were the power in question really given to the judiciary by the Constitution, we could not help it, we would then be compelled to fight it out on the field now chosen by Comrade Berger. But it wasn’t. Mr. Ghent says, however, that that is merely my opinion: “that the consensus of views and opinions printed about the time of the Constitutional Convention tend to support” a contrary opinion; and that it is “like the States Rights question which kept two generations of Americans in turmoil.”
Mr. Ghent is in error on some of these points at least. To begin with, it is not merely my opinion. It is the opinion of every unbiased student of the subject.
Mr. Ghent is also in error on the question of “consensus of views,” etc. I naturally cannot go here into the evidence of the subject. (I have presented some of it in The Call before). I will therefore merely re-state here my conclusions as I stated them in an article on the subject published in the current issue of the Political Science Quarterly. I there said:
“There undoubtedly were some men in the convention who favored the investing of the federal judiciary with general revisory powers over legislation; but all attempts to make the judiciary part of the legislative power of the Federal Government failed signally and had to be abandoned by their sponsors. The provisions of the Constitution as they now stand contain no reference whatever to any such powers, either expressly or by implication. And there is ample historical proof that — whatever the points of some — from the complete silence of the document, as to possible future development — the great majority of the framers never suspected that a general power of the judiciary to control legislation could be interpreted into the Constitution. They evidently assumed that such an extraordinary power could not be exercised unless expressly granted. And it is equally certain that had the convention given to the courts that power, either expressly or by necessary implication, apparent to the ordinary mind, the Constitution would have been overwhelmingly rejected by the people. A careful examination of all the evidence on the subject now extant leads to the conclusion that the Constitution was adopted by the Philadelphia Convention and ratified by the people of the States without any belief, without even a suspicion on the part of the great majority of those voting for it, whether in or out of the Constitutional Convention, that it contained any such implication.”
It should be remember in this connection that the Quarterly is not only a magazine of high standing in the scientific world, but is extremely conservative, and would not print any attack on our judiciary from a militant Socialist, unless it could be backed up by uncontrovertible proof. This subject of the judiciary is an extremely ticklish one with the intellectuals of our ruling class. Most of our magazines therefore absolutely refuse to publish any “opinion” such as mine. They will publish anything you like, including proposed amendments, etc., but not the “opinion” that the Constitution does not give the judiciary any such power as is here discussed. And the more evidence one gives in support of such an “opinion,” the worse. And even our purely scientific publications fight shy of the subject, and when they do print such “opinions,” they will only publish them if they are so worded that absolutely nothing of any historical value can be presented against them by any reactionary. It is therefore clear that had there been any such “consensus of views” as Ghent speaks of, my “opinion” would never have found expression on the pages of the Political Science Quarterly.
The matter cannot even be considered fairly debatable among historians. It is true that our reactionaries try to instil a contrary belief to the ignorant. But that is not debate, that is intentional misrepresentation, except when it proceeds from the ignorant. There are many things that are being “debated” by some people in the pulpit and in the press, but that does not mean that they are “debatable” to us. Mr. Justice Lurton, of the United States Supreme Court, has recently attempted to uphold the opinion now advocated by Mr. Ghent (I sincerely hope that Comrade Berger disagrees with his secretary on this proposition). I disposed of him in the article published in the Political Science Quarterly mentioned above. But I was not debating with Mr. Justice Lurton: it was too much like taking candy from a baby.
But even assuming the point to be debatable, must we “debate” on the side of the reactionaries? And does that mean that we must give up the fight? But that is just what introducing an amendment on the subject means, as I have shown in my article in the International Socialist Review. Mr. Ghent says that the judiciary question “is like the States Rights question which kept two generations of Americans in turmoil.” Granted, for the sake of argument. But has Mr. Ghent ever heard of any responsible States Rights statesman proposing to solve the question by offering an amendment limiting the federal power? Why, no! And for the simple reason that as practical men the States Rights statesmen knew that such an offer on their part would be an admission that the Constitution as it stands is against them, and then their fight would be at an end. Did the abolitionists after the Dred Scott decision attempt to nullify its effect by offering an amendment giving Congress the power to deal with slavery in the Territories? No. That would have been giving away their case. Why should we then give our case away to Mr. Justice Lurton and the other reactionaries, when even the unbiased bourgeois scholarship is on our side?
In conclusion I desire to state that Mr. Ghent’s statement, by implication, that I am opposed to the agitation for a Constitutional Convention, or that my criticism of Comrade Berger implied any criticism on his stand for such a convention, is just the reverse from the true facts. In my article in the International Socialist Review I specifically praised Comrade Berger for his resolution on that subject, and criticised him for the Constitutional amendment as a step backward from that position.
L. B. Boudin.
New York, June 14, 1911.
Last updated on 4 August 2023