Half a Century of More of the Same

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On August 23, 1958, 46 Chief Justices from the Supreme Courts of the several states gathered together in Pasadena, California. The event drawing their presence was the Conference of Chief Justices, a regular forum for the highest judges in each state to meet and discuss important issues.

Their 1958 meeting, however, proved to be quite different from any of the other conferences. Ten chief justices had been previously assigned, as part of a committee, to produce a report and resolution to the entire conference for a vote. The subject: federalism.

36 chief justices ultimately voted in support of the resolution and report, which declared that the U.S. Supreme Court “has tended to adopt the role of policy maker without proper judicial restraint”. Eight voted against it, and two abstained.

The report spans several pages, as presented in the October 3, 1958 edition of the U.S. News and World Report (PDF), and until now, has nowhere been made available on the internet. Scanning the statement provides an interesting insight into the tenuous balance of federalism from half a century ago, and supports concern that things have not improved, now decades later.

It should be noted, first, that the chief justices, themselves products of the conventional legal system and general adherents to its philosophy, were not advocating federalism to the extent of more radical action, such as nullification. As one example, they state in their report:

Second, when we turn to the specific field of the effect of judicial decisions on federal-State relationships, we come at once to the question as to where power should lie to give the ultimate interpretation to the Constitution and to the laws made in pursuance thereof under the authority of the United States. By necessity and by almost universal common consent, these ultimate powers are regarded as being vested in the Supreme Court of the United States. Any other allocation of such power would seem to lead to chaos. (emphasis added)

Clearly, interposition and nullification were not even under consideration for these quasi-federalist chief justices. Nevertheless, they were quite concerned with an overreaching federal government whose accumulation of undelegated power seemingly knew no bounds. Here is the text of the resolution which received an overwhelmingly affirmative vote:

Resolved:

  1. That this Conference approves the Report of the Committee on Federal-State Relationships as Affected by Judicial Decisions submitted at this meeting.
  2. That, in the field of federal-State relationships, the division of powers between those granted to the National Government and those reserved to the State Governments should be tested solely by the provisions of the Constitution of the United States and the Amendments thereto.
  3. That this Conference believes that our system of federalism, under which control of matters primarily of national concern is committed to our National Government and control of matters primarily of local concern is reserved to the several States, is sound and should be more diligently preserved.
  4. That this Conference, while recognizing that the application of constitutional rules to changed conditions must be sufficiently flexible as to make such rules adaptable to altered conditions, believes that a fundamental purpose of having a written Constitution is to promote the certainty and stability of the provisions of law set forth in such a Constitution.
  5. That this Conference hereby respectfully urges that the Supreme Court of the United States, in exercising the great powers confided to it for the determination of questions as to the allocation and extent of national and State powers, respectively, and as to the validity under the Federal Constitution of the exercise of powers reserved to the States, exercise one of the greatest of all judicial powers—the power of judicial self-restraint—by recognizing and giving effect to the difference between that which, on the one hand, the Constitution may prescribe or permit, and that which, on the other, a majority of the Supreme Court, as from time to time constituted, may deem desirable or undesirable, to the end that our system of federalism may continue to function with and through the preservation of local self-government.
  6. That this Conference firmly believes that the subject with which the Committee on Federal-State Relationships as Affected by judicial Decisions has been concerned is of continuing importance, and that there should be committee appointed to deal with the subject in the ensuing year.

The proceeding report details several specific cases in which the balance of federalism had been pushed too far in favor of the federal government. Towards the end, the chief justices provide some compelling arguments as the foundation of their concerns:

It is strange, indeed, to reflect that, under a Constitution which provides for a system of checks and balances and of distribution of power between national and State governments, one branch of one government—the Supreme Court—should attain the immense and, in many respects, dominant power which it now wields. We believe that the great principle of distribution of powers among the various branches of government and between levels of government has vitality today and is the crucial base of our democracy.

We further believe that, in construing and applying the Constitution and laws made in pursuance thereof, this principle of the division of power based upon whether a matter is primarily of national or of local concern should not be lost sight of or ignored, especially in fields which bear upon the meaning of a constitutional or statutory provision, or the validity of State action presented for review. For, with due allowance for the changed conditions under which it may or must operate, the principle is as worthy of our consideration today as it was of the consideration of the great men who met in 1787 to establish our nation as a nation.

Further:

It has long been an American boast that we have a government of laws and not of men. We believe that any study of recent decisions of the Supreme Court will raise at least considerable doubt as to the validity of that boast. We find first that, in constitutional cases, unanimous decisions are comparative rarities and that multiple opinions, concurring or dissenting, are common occurrences.

We find next that divisions in result on a 5-to-4 basis are quite frequent. We find further that, on some occasions, a majority of the Court cannot be mustered in support of any one
opinion and that the result of a given case may come from the divergent views of justices who happen to unite on one outcome or the other of the case before the Court.

We further find that the Court does not accord finality to its own determinations of constitutional questions, or for that matter of others. We concede that a slavish adherence to stare decisis could at times have unfortunate consequences; but it seems strange that under a constitutional doctrine which requires all others to recognize the Supreme Court’s rulings on constitutional questions as binding adjudications of the meaning and application of the Constitution, the Court itself has so frequently overturned its own decisions thereon, after the lapse of periods varying from 1 year to 75, or even 95 years.

In this resolution and report we find chief justices from a majority of the states voicing concern about a dominating federal government—one to which they defer in all questions of supremacy and authority, despite brief references to the tenth amendment and domestic powers not delegated to the federal government. We find the justices “urging” the Supreme Court to exercise “judicial self-restraint” through “the power of persuasion”.

Outside of the formal resolution, one chief justice, M. T. Phelps of Arizona, vented his frustration thusly:

It is the design and purpose of the U.S. Supreme Court to usurp the policy-making powers of the nation…. By its own unconstitutional pronouncements, it would create an all-powerful, centralized government in Washington and subsequent destruction of every vestige of States Rights expressly and clearly reserved to the States under the Tenth Amendment of the Constitution.

I honestly view the Supreme Court with its present membership and predilection, a greater danger to our democratic form of government and the American way of life than all forces aligned against us outside our boundaries. (as quoted in Ernest L. Wilkinson, “The Changing Nature of American Government from a Constitutional Republic to a Welfare State”, Brigham Young University Devotional, April 21, 1966)

Half a century later, though, we enjoy more of the same—more theft of state sovereignty, more arrogation of powers nowhere delegated to the federal government, and more indifference in regards to the question of federalism and supposed “self-restraint”.

In short, asking “pretty please” to the thieves has proven almost entirely ineffective.

Nevertheless, the information here provided gives an interesting insight into the issue of federalism five decades ago, and shows how much of a failure the justices’ method of using “persuasion” has proven to be.

As with many other questions of political authority and sovereignty, rights must be asserted and claimed, not sought after through begging and allegedly persuasive pleas.

Connor Boyack is president of Libertas Institute. He is the author of Latter-day Liberty: A Gospel Approach to Government and Politics and Latter-day Responsibility: Choosing Liberty Through Personal Accountability.

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