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EDWARD JOHN PHELPS

THE SUPREME COURT AND POPULAR
SOVEREIGNTY

[Address of Edward J. Phelps, lawyer, diplomatist, Minister to Great Britain, 1885-89 (born in Middlebury, Vt, July II, 1822; died in New Haven, Conn., March 9, 1900), delivered at the centennial anniversary of the organization of the Supreme Court of the United States, February 4, 1890, held at the Metropolitan Opera-House, New York City, under the auspices of the New York State Bar Association. Grover Cleveland, as Chairman of the Executive Committee, presided.]

Gentlemen :—But few words remain to be added to those so well spoken by my distinguished brethren in concluding, on the part of the bar, the expression which this occasion calls for. We have thought it well to mark in a manner thus significant and conspicuous, the centennial anniversary of our highest and greatest tribunal; to review so far as the flying hour allows, its eventful and interesting history; to recall some of its memories, cherished and imperishable; and to consider in the light of a century's experience, what has been, and what is like to be hereafter, its place and its influence as an independent constitutional power in the Federal government of this country.

We cannot forget that in its origin it was an experiment, untried and uncertain. Judicial history has not furnished another example of a court created by an authority superior to legislation and beyond the reach of executive power, clothed with a jurisdiction above the law it was appointed to administer, and charged, not merely with the general course of public justice, but with the limitation of the powers of political government, and the adjustment of the conflicting claims of sovereign States. The hundred years that now terminate have tested the value of all American institutions. Fortunate as they have been for the most part, it will yet be the judgment of dispassionate history that no other has so completely justified the faith of its authors, or fulfilled with such signal success the purpose of its foundation.

What was that purpose? Not the limited original jurisdiction of the Court, dignified and important, but rarely invoked. Not chiefly, even, its ordinary appellate jurisdiction, extensive and beneficent as it is, most desirable, yet perhaps not indispensable. Not for these objects, great though they are, was it placed, or did it need to be placed, on the singular eminence it occupies. Its principal and largest function was designed to be, as it has been, the defence and preservation of the Constitution that created it as the permanent fundamental law on which our system of government depends. Had that instrument been left only directory to the legislature, to be construed and given effect as the exigencies of party or the purposes of the hour might demand; had it been referred to the conflicting determination of various courts, with no supreme arbiter to correct their mistakes, or to harmonize their disagreements, so that its meaning might depend upon the State or the tribunal in which the questio'n happened to arise, it would speedily have become but the shadow of an authority that had no real existence, fruitful in a discord it was powerless to allay. American experience has made it an axiom in political science that no written constitution of government can hope to stand without a paramount and independent tribunal to determine its construction and to enforce its precepts in the last resort. This is the great and foremost duty cast by the Constitution, for the sake of the Constitution, upon the Supreme Court of the United States.

The jurisdiction of the Court over questions of this sort, and the dual sovereignty so skilfully divided between the States and the Federation, as they are the most striking are likewise the only entirely original features in the Constitution. All else found a precedent or at least a prototype, in previous institutions. In its other branches it is mainly the combination and adaptation of machinery that was known before. It was to be expected, therefore, that the earliest and most critical exercise of the new power conferred upon the Court would be displayed in dealing with the new form of sovereignty at the same time devised, and bringing into harmony those opposite forces that might so easily have resulted in conflict and disaster. The questions that have arisen in this field have been usually the most delicate, often the most difficult, always the most conspicuous of all that have engaged the attention of the Court. While it has been charged with the limitation of many other departments of governmental authority, here have been found hitherto its most permanent employment, and the most dangerful emergencies it has had to confront. Here have taken place its most celebrated judgments, the most signal triumphs of its wisdom, its foresight, as well as its moral courage— rarest of human virtues. It is to this sagacious judicial administration of the Constitution that we are principally indebted for the harmonious operation that has attended the Federal system, each party to it made supreme in its own sphere and at the same time strictly confined within it, neither transgressing nor transgressed. Looking back now upon this long series of determinations, it is easy to see how different American history might have been, had they proved less salutary, less wise, and less firm. The Court did not make the Constitution, but has saved it from destruction. Only in the one great conflict, generated by the single inherent weakness of the Constitution, and unhappily beyond judicial reach, has the Court failed to maintain inviolate all the borders and marches of contiguous jurisdiction and keep unbroken the peace of the Union.

But it still remains to be observed that the service of preserving, through the Constitution, the Union of the States, great and distinguished as it is, and vital as it is, has been wrought upon the machinery of government, not upon its essence. Beyond and above the question how a political system shall be maintained, lies the far larger question, Why should it be maintained at all? The forms of free government are valuable only as they effect its purpose. They may defend liberty, but they do not constitute it, nor necessarily produce it. Their ultimate permanence, therefore, among the men of our race, must depend, not on themselves, but on their results.

The true analysis of the function of the Supreme Court as the conservator of the Constitution involves, consequently, the further inquiry, What is the value of the Constitution to those who dwell under the shadow of its protection?

It rests upon the foundation stone of popular sovereignty. The true definition of that familiar and muchabused phrase is not always kept in view. The sovereignty of the people is not the arbitrary power or blind caprice of the multitude any more than of an aristocracy or a despot. It is not the right of any class, small or great, high or low, to wrong or oppress another. It is not a struggle between classes at all. It is simply recognition of the natural and equal rights of men as a basis of a government formed for their protection by its people, and regulated by law. A system under which every citizen, in the peace of God and of the State, shall be assured by indefeasible right and not by favor or sufferance, in the enjoyment of his life, his liberty, his property in all its forms, his home, his family relations, his freedom of conscience and of speech. The powers of government, in all their extent and elaboration, come down at last to this ultimate purpose. For this they exist, and on this foundation is raised all that renders social life desirable. "In my mind," said Lord Brougham, "he was guilty of no error, he was chargeable with no exaggeration, he was betrayed by his fancy into no metaphor, who once said that all we see about us, Kings, Lords, and Commons, the whole machinery of the State, all the apparatus of the system and its varied workings, end in simply bringing twelve good men into a box."

The world has seen empires and dynasties without number based upon arbitrary power. But for the most part it has seen them perish. They have illuminated the page of history, but with the light of the comet and the meteor, not of the stars. The civilization they have brought forth has been as transient as themselves. Neither government nor civilization contained any element of permanence, until they came to be founded upon the principles of civil and religious liberty. Magna Charta was therefore the starting-point, not merely of free institutions, but of the only civilization that ever did or ever could survive political systems and pass on unimpaired from the ruins of the construction of another. Its striking and memorable language no rhetoric has been able to improve, no casuistry to obscure. When it broke upon the world it proclaimed a new era, the dawning of a better day for humanity, in which the rights of man became superior to government, and their protection the condition of allegiance. The great thought matured with a slow but certain growth. Battles enough were fought for it, but never in vain, until at last it came to be established forever upon English soil, and among the English race on every soil. And the highest eulogy upon the British constitution was spoken when Chatham said: "The poorest man may in his cottage bid defiance to all the forces of the crown; it may be frail, its roof may be shaky, the wind may blow through it; the storm may enter, the rain may enter, but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenant." But the great orator could go no further; he could not say that the British Parliament might not enter the home of the subject, for all the judges of England are powerless in the face of an Act of Parliament, whatever it may be. It was reserved for the American Constitution to extend the judicial protection of personal rights, not only against the rulers of the people, but against the representatives of the people.

The history of the Saxon race exhibits few changes more striking than the succession of power. First, in the king; then when royal supremacy became intolerable, in the hands of the barons, who struck the earliest blow for freedom, and long stood between the throne and the people, the supporters of the one, the protectors of the other. When in the course of time that oligarchy had in its turn abused its authority, it passed to the Parliament chosen by the people. And when at last the founders of our Constitution, driven to revolution by Parliamentary oppression, had learned that even representative government cannot always be depended upon by those it represents, they placed the protection of personal rights beyond

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