Undermining The Constitution


By Thomas James Norton



Another form of attack by Congress on the courts of the Constitution was in legislation directing them how to try cases.

In 1910 it passed an act forbidding the issue of an injunction against the operation of a law of a State except in a specified way.

In 1913 it passed a similar law forbidding the restraint by injunction of an order of the Interstate Commerce Commission except on conditions laid down.

And in 1932 Congress enacted the Norris-LaGuardia Act for denying injunctive relief to an employer, except under annoying conditions which might deny relief, where a labor question is involved.

Those invasions of the rights of litigants and the liberties of the American will be examined.

Constitutional Convention forbade Congressional dictation to courts

Prefatory to a discussion of the three intrusive acts of Congress mentioned, a quotation should be made from



the record of the Constitutional Convention (Formation of the Union, p. 625) of August 27, 1787, only twenty-three days before the signing, when there was under consideration "the Judicial power":
"The following motion was disagreed to, to wit, to insert 'In all other cases before mentioned the Judicial power shall be exercised in such manner as the Legislature [The Congress] shall direct.'"

So the Constitutional Convention explicitly refused to authorize the Congress to "direct" the judicial power in any respect whatever. How Congress has lawlessly directed it, nevertheless, and how the courts have lawlessly submitted to the forbidden dictation, are to be seen.

The act of 1910 forbade the courts of the United States to grant an interlocutory injunction "restraining the enforcement ... of any statute law of a State," or of any order made thereunder by a board, "upon the ground of the unconstitutionality" of such statute, "unless the application" be "heard and determined by three judges, of whom at least one shall be a justice of the Supreme Court or a Circuit Judge, and the other two may be circuit or district judges, and unless a majority of the said three judges shall concur in granting such application."

States objected to constitutional restraints

Some of the States had felt wounds in their dignity when a citizen who believed a tax law, for example, was intended to effect what President Coolidge later termed "legalized larceny," went into a court of the United States asking a restraining order upon the officers executing the law until there could be a full hearing on evidence. In addition to that, those were field days for the alien minded


who omitted no opportunity to "go after" the Judiciary, which Von Holst rightly called the keystone of the American arch.

Of course, the Fourteenth Amendment forbids the State to "deprive any person of life, liberty or property without due process of law." That is, he must have a hearing when he asks it before his property is taken by taxation or otherwise. It was the constitutional intent that the legislature should not take property by fiat. And that was imbedded in the Constitution 46 years before the confiscation of private property was begun by Government through the "graduated" income taxes of Communism.

Article III, establishing the Judiciary, "extends" the "judicial power" to all cases arising under the Constitution, under the laws of the United States, under treaties; to cases affecting ambassadors, other public ministers, consuls; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between a State or the citizens thereof and foreign states, citizens or subjects.

Thus, ample provision was made for the States to use the courts of the Nation. But in the foregoing recital the States are ranked as litigants on the level with ambassadors, consuls, and citizens. No thought was entertained that a State as a litigant should be regarded as any higher than a man. Why should the creature, the State, be above the man, who created it?

Preference of State against Man not authorized

Since the Constitution left the State as a litigant on a level with the man, as it clearly did, where did Congress get the power to change that arrangement of the Consti-


tution and put the State above the man? Only the people, by amendment, could make that change. Yet the courts submitted to the lawless dictation. The first judge appealed to under the meddling act should have refused to call two other judges, should have heard the application, granted or denied a restraining order or injunction, and let the losing party make a test of the law in the Supreme Court of the United States, which would then be in a position to sustain the Judiciary "in all its dignity and vigor," as President Cleveland sustained the Executive Department against encroachment by the Senate, and as Hamilton said in The Federalist that each Department would take pride in maintaining its prerogatives against one or both of the others.

Act of Congress interference with procedure

The act forbade that the application for a restraining order or injunction "be heard or determined before at least five days' notice of the hearing has been given to the Governor and to the Attorney General of the State, and such other persons as may be defendants in the suit." But if it should appear that irreparable loss or damage would result unless a temporary restraining order be granted, then one judge should give that relief.

As Article III set up the Supreme Court and then authorized Congress to "ordain and establish" such "inferior courts" as might be necessary, it was within the competence of the Legislative Department, probably, to establish a three-judge court. In 1891, to take from the Supreme Court part of its load, Congress established nine (now eleven) Circuit Courts of Appeals of three judges each. But to establish courts to meet the needs of the people is


quite another thing from trying, or partially trying, cases in them.

"The judicial power of the United States" to try and adjudge cases, the Constitution put in "one Supreme Court and such inferior courts" as might be needed. That forever fixed judicial power until the people determine that it should be withdrawn from the courts and vested in the Congress or elsewhere.

No judicial power possessed by Congress

Congress may prescribe the jurisdiction of a court which it establishes (like the Court of Claims and the Court of Customs and Patent Appeals), but not the power. "The judicial power," says section 2 of Article III, "shall extend to all cases in law and equity." This power is poured into the courts by the people through their Constitution. Congress has no judicial power to confer.

Apparently emboldened by the success -- or lack of opposition -- which attended the act of 1910, Congress again dictated to the Judicial Department, in 1913, setting up a three-judge court and laying down with the fullest particularity the steps which the court would be permitted to take in injunction proceedings arising out of orders entered against citizens by the Interstate Commerce Commission.

Congress unduly magnified Interstate Commerce Commission

Again, why should the Interstate Commerce Commission, a bureau of Congress, have a court of three judges, when a court of one judge must meet the needs of the American, who created all that there is in and under


government? This question is particularly pertinent in view of the fact that during the 63 years of the Commission no President has ever appointed to it a railroad man of standing in the field of transportation, finance or traffic, or a shipper of prominence, in the world of commerce. The body never has been what the President and the Senate should have made it -- what the commerce of the country and those engaged in it were entitled to have to serve them. Then, why should its decisions be made so nearly immutable by restrictions on judicial procedure withholding from the American his liberty to seek justice?

Why put Interstate Commerce Commission above American?

As a specimen of the work of the Commission which the Congress was so desirous of making nearly immune to attack by aggrieved citizens, the reorganization of the Chicago, Milwaukee, St. Paul and Pacific Railroad Company will be stated.

Owing to the unemployment of 9,935,000 in the United States, there was a great shortage of production, which means that the railroads lacked freight tonnage and passenger travel, which means that many of them could not pay their way. In 1935, the Milwaukee Company filed a petition for reorganization with the Interstate Commerce Commission in pursuance of an act of Congress. Evidence was received in the year named and in 1936 and 1937. While the case was on trial the number of unemployed rose to 10,932,583, as reported by the American Federation of Labor.

The plan of reorganization approved by the Commission


wiped out all the preferred and common stock. On March 15, 1943, the Supreme Court of the United States upheld the finding of the Commission.

A year before that, in 1942, the net profits of the Milwaukee after interest and taxes were $12,174,831. In 1943 the net profits were $29,413,623.

Interstate Commerce Commission failed to see point

That shows that the railroad was in fit condition to handle traffic when the United States should be in condition to provide it. The United States needed reorganizing, not the railroads.

Shortly after the investments of the holders of preferred and common stock had been wiped out, the Company paid off a large volume of its old bonds. That is only one of many like cases of railroad reorganization in destruction of investments. The grossness of the injustice caused talk by members of Congress of impeachment.

It was decisions of that sort that Congress did not want the damaged American citizen to attack in court except under annoying difficulty and delay!

In 1932 Congress revamped a line of legislation respecting labor and told the Judicial Department of the Constitution just what it could do and what it could not do about the issuing of injunctions in cases affecting labor.

Norris-LaGuardia Act denial of justice

The minority report of the committee of Congress on the bill said that in practice it would amount to a denial of the rights of the employer. He was virtually outlawed. To be sure, that was the intention -- that is what a powerful


voting group demanded that Congress give it. And Congress responded to the demand, just as it bowed to the same group five years later and passed the National Labor Relations Act, to the appalling hurt of the States whose Congressmen enacted it.[1]

Those three acts of Congress were definitely lawless and against the liberty of the American. The courts were lawless when they submitted to the intimidations, and the organized Bar maintained a masterful inactivity while the undermining of constitutional government was in open progress.

Historic relief by injunction made clear

The "judicial power" which was poured into the courts by the Constitution was that inherent in the courts of England in 1787. It was brought to America by the colonists. What it was is plain.

Blackstone, whose lectures were taught in the College of William and Mary to Virginians who helped write the Constitution, told the youth at the University of Oxford a quarter of a century or more before 1787 just what were the inherent powers of a court of equity with respect to the restraining order, or the temporary injunction, and the permanent injunction:
"But if an injunction be wanted to stay waste, or other injuries of an equally urgent nature, then upon the filing of the bill [called application in the acts of Congress reviewed], and a proper case supported by affidavits, the

1. The Norris-LaGuardia Injunction Bill of 1932 passed the Senate by a vote of 75 to 5. The House passed it by 363 to 13. The employers of the country whose equipment for production and transportation had won the first World War were all but friendless in the Government which had been saved.


court will grant an injunction immediately, to continue until the defendant has put in his answer, and till the court shall make some further order concerning it; and when the answer comes in, whether it shall then be dissolved or continued till the hearing of the case, is determined by the court upon argument, drawn from considering the answer and the affidavit together." -- 4 "Commentaries on the Laws of England," 443.

That language defined the power of a court of equity with respect to the injunction when the Constitution was written. Consequently that is what the Convention put into the Constitution when it provided:
"The judicial power shall extend to all cases in law and equity."

Congress powerless to defeat constitutional injunction

What a court of equity could do then it can do now. That is constitutional. Being constitutional, it can be taken out of the Constitution only by amendment. Congress can no more change or control the judicial power than it could wipe away the Bill of Rights. Indeed, this provision extending the judicial power to cases in equity is one of the many bills of right written in the body of the Constitution.

The court of equity established by the Constitution having had the power, as Blackstone shows, "to grant an injunction immediately," without notice, upon the filing of an application with affidavits proving that, if it be not granted without delay, irreparable damage will be sustained by the applicant, that power cannot be withdrawn or modified by Congress.


Rule of Supreme Court protected all

By Equity Rule 73 of the Supreme Court of the United States, governing the lower courts also, long in effect, meticulous care was taken to prescribe procedure in injunction cases -- not alone in cases affecting the powerful group unconstitutionally favored by the Act of 1932, known as the Norris-LaGuardia Act, but in suits of all Americans.

The Rule directs (1) that no preliminary injunction issue without notice; (2) that no temporary restraining order be granted without notice unless it clearly appear from specific facts presented, under oath, that immediate and irreparable damage will otherwise result, and (3) that the temporary restraining order mentioned be brought to hearing "at the earliest possible time, and in no event later than 10 days."

That rule required notice to interested persons and parties -- to States and to the Interstate Commerce Commission. It required the oath for the temporary restraining order, as described by Blackstone. It required speedy hearing. It gave to defendants complete protection, and the acts of Congress were as needless as they were invalid.

Judiciary in need of protection

On the Judiciary's being the weakest of the three Departments to defend itself, and on the need therefore of its receiving protection, Hamilton wrote in No. 78 of The Federalist:
"The Judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution, because it will be least in capacity to


annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The Legislature [Congress] not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The Judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may be truly said to have neither force nor will, but only judgment; and must ultimately depend upon the aid of the Executive arm even for the efficacy of its judgments. ... It can never attack with success either of the other two; and all possible care is requisite to enable it to defend itself against their attacks."

But government by the educated is in prospect

In June, 1947, the Governor of Missouri signed a bill to require the teaching of the Constitution in all schools from the Seventh Grade up and in colleges and universities, and to forbid a degree of graduation to be given to any student until a rigid examination in the Constitution has been passed.

In the same month the dispatches reported that a similar step had been taken by the Legislature of California.

When the legislatures of all the other States follow those wise examples it will soon be impossible to draw from the population weak Congresses or Courts or Legislatures or Executives.

Continue to Chapter IV

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