JUDICIAL DETERMINATION OF QUESTIONS OF FACT AFFECTING THE CONSTITUTIONAL

IN

VALIDITY OF LEGISLATIVE ACTION

N discussions involving the authority of the judiciary to determine the constitutional validity of legislation, it is assumed, not infrequently, that the question for decision is a relatively simple one involving merely the determination of the existence of harmony or conflict between two legal texts, viz., the constitution and the challenged statute; or, in other words, presenting only the not unusual difficulty met with "if two laws conflict with each other," in which event "the courts must decide on the operation of each." It was thus that Chief Justice Marshall described it in Marbury v. Madison.1

While this is undoubtedly a correct description of one class of cases arising out of a claimed conflict between a statute and the fundamental law, the development of constitutional doctrines has rendered it quite inadequate as applied to another and highly important class. In this latter class of cases, here brought under consideration, no court can undertake to decide upon the validity of legislation by a mere comparison of its provisions with those of the applicable constitution, but it must first be informed as to the truth of some question of fact which the statute postulates or with reference to which it is to be applied; and the validity of the legislation depends on the conclusions reached by the court with reference to this question of fact. Now, while the training and experience of the judge justify the assumption that he is specially qualified to decide the usual question of law, an assumption which may well include the ordinary question of conflict or harmony between the text of a challenged statute and the text of the constitution, there is no similar basis for the assumption that he is specially qualified—unless the relevant information is properly developed in the case before him to determine these underlying questions of fact with reference to which, in the

cases here considered, the validity of legislation must be determined.

Moreover, these underlying questions of fact, which condition the constitutionality of the legislation, are at times questions on which the layman feels justified in forming his own opinion and in declining to yield it to that of the judge, at least when the judge bases his determination, not on evidence produced in the case before him, but on his general information, the same foundation upon which the layman builds his conclusion. As an example, the layman may be quite ready to defer to the opinion of the court when the decision requires à definition of the legal significance of the phrase "ex post facto law; " but when the court decides that a law limiting the hours that people may work in bakeshops has no substantial relation to the promotion of the public health," he is inclined to doubt the finality of this finding, since he knows of no particular reason for supposing that the judges are better able to decide such a question than other intelligent persons, unless their determination is based upon evidence produced before them in the usual way, carefully weighed and considered.

Since it is believed that a substantial part of the criticism which has been levelled against the exercise by the judiciary of the power to hold legislation unconstitutional is due to the fact that decisions have been made which turn on the resolution of these underlying questions of fact, it has seemed worth while to consider how the courts should be enlightened with reference to such questions, so that their determinations may be based upon correct information and not upon assumption.3

It need hardly be said that no question is here made of the propriety of the exercise by the judiciary of the power to hold

2 Lochner v. New York, 198 U. S. 45, 64 (1905).

3 It seems quite probable that the controversy which has been waged over the restrictions upon freedom of speech turns in no small degree upon the different conclusions of different minds as to whether, as a matter of fact, "the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." (Schenck v. United States, 249 U. S. 47, 52 (1919)). It is difficult to justify a criticism of this test; but its application has not proved simple. How shall it be decided whether the clear and present danger is created? Should a jury apply this constitutional test?

acts unconstitutional, nor of the propriety of the specific constitutional doctrines which have developed in such a way as to make the validity of many statutes depend on underlying questions of fact; but it is believed that a more definite recognition of the exact nature of the decisive issues in these cases would either result in sustaining a statute because of the absence of evidence of its invalidity, or would develop so clear a demonstration of its constitutional infirmity as to satisfy all except the "irreconcilables." Such a result, if achieved, would go far toward relieving the courts of the criticism which has been directed against their exercise of this power.

At the outset it seems desirable to refer to a few illustrations of the class of cases under discussion. Allusion has already been made to the New York bakeshop case, Lochner v. New York,5 in which the Supreme Court of the United States, by a vote of five to four, decided that a New York statute limiting the hours of work in bakeries was in violation of the due process clause of the Fourteenth Amendment because, in the opinion of the Court, such legislation had no real or substantial relation to any police purpose. Obviously, the underlying question on which the case turns is one of fact, namely, whether, having regard to the workman's physical equipment and the facts of industrial life, this legislation has the described relation - a question of fact on which there seems to be no reason for believing that judges are capable of expressing expert opinions in the absence of evidence.

So also the famous bank case, McCulloch v. Maryland, turned on what was essentially a question of fact, viz., whether a national bank was an appropriate means of carrying on war,

4 In the discussion, the questions before the court are stated without reference to the conceded rule that the burden is, of course, on the person attacking the validity of the legislation; e.g., that in the bakeshop case the question before the court was not whether the legislation had a real or substantial relation to the proposed police purpose, but whether the court could say that it had no such relation to the purpose intended.

5 198 U. S. 45 (1905). See, in connection with this case, as well as in connection with the general subject-matter of this article, Professor Frankfurter's noteworthy discussion of Hours of Labor and Realism in Constitutional Law," 29 Harv. L. Rev. 353.

64 Wheat. (U. S.) 316 (1819).

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collecting revenue, borrowing money, or regulating commerce among the states. In like fashion the Legal Tender Cases & required the Court to decide whether the characteristic of legal tender accorded by Congress to the Government's paper currency was appropriate, that is, substantially helpful, in waging war or borrowing money. It is an interesting historical incident that Chief Justice Chase, in passing upon this question as Secretary of the Treasury, when confronted with the actual difficulties of the situation in February, 1862, had written to William Cullen Bryant, then editor of the New York Evening Post, that he was convinced "that, as a temporary measure, it is indispensably necessary." Eight years later, in the quiet of the Supreme Court chamber, he said, speaking for the Court:

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"We are unable to persuade ourselves that an expedient of this sort is an appropriate and plainly adapted means for the execution of the power to declare and carry on war."

" 10

Of course, the subsequent decision in 1872, overruling this first decision, took a different view of the matter.11

But the important point to be observed is that the decision turned on a question of fact, and on a question upon which a layman felt justified in forming his own opinion, and with respect to which he could find nothing to make him believe that the training and experience of the Supreme Court justices qualified them to form an exceptionally trustworthy opinion in the absence of evidence bearing directly upon the point in dispute.

Frequent illustrations are found in cases involving the validity of state statutes challenged as imposing a direct burden on interstate commerce. Take for example the case involving the Georgia

7 One of the arguments urged against the bank was that no necessity existed in 1816 for the incorporation of a national bank, while in 1791 the situation was quite different because at that time "there were but three banks in the United States, with limited capitals, and contracted spheres of operation." See Mr. Hopkinson's argument, 4 Wheat. (U. S.) 330-333.

8 Hepburn v. Griswold, 8 Wall. (U. S.) 603 (1869); Legal Tender Cases, 12 Wall. (U. S.) 457 (1870).

9 2 GODWIN, LIFE OF BRYANT, 165, quoted in THAYER, CASES ON CONSTITUTIONAL LAW, 2236.

10 Hepburn v. Griswold, 8 Wall. (U. S.) 603, 621 (1869).

11 Legal Tender Cases, 12 Wall. (U. S.) 457 (1870).

blow-post law, Seaboard Air Line Ry. v. Blackwell,12 in which the question was whether a state law requiring railroad companies to check the speed of trains approaching public road crossings, so that the trains might be stopped in time if any persons or things should be crossing the tracks when the trains reached the crossings, was a direct interference with interstate commerce. Or take the numerous decisions which have involved the validity of state requirements that interstate trains shall stop at designated towns or cities.13 It is clear that the decisive questions are questions of fact, viz., whether the regulations in question substantially impede interstate commerce.

In fact, the classic test of Cooley v. The Board of Wardens that

"Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress," 14

12 244 U. S. 310 (1917). Cf. Southern Ry. v. King, 217 U. S. 524 (1910). 13 Ill. Cent. R. R. Co. v. Illinois, 163 U. S. 142 (1896); Gladson v. Minnesota, 166 U. S. 427 (1897); Lake Shore etc. R. R. v. Ohio, 173 U. S. 285 (1899); Cleveland etc. Ry. v. Illinois, 177 U. S. 514 (1900); Mississippi R. R. Comm. v. Ill. Cent. R. R. Co., 203 U. S. 335 (1906); Atlantic Coast Line R. R. Co. v. Wharton, 207 U. S. 328 (1907); Herndon v. C. R. I. & P. Ry. Co., 218 U. S. 135 (1910); Roach v. Atchison, etc. Ry. Co., 218 U. S. 159 (1910); Gulf, etc. Ry. Co. v. Texas, 246 U. S. 58 (1918). In C. B. & Q. R. R. Co. v. R. R. Comm. of Wis., 237 U. S. 220 (1915), the Supreme Court outlines the principles upon which it will proceed, as follows (pp. 226-227):

"In reviewing the decision we may start with certain principles as established: (1) It is competent for a State to require adequate local facilities, even to the stoppage of interstate trains or the re-arrangement of their schedules. (2) Such facilities existing - that is, the local conditions being adequately met — the obligation of the railroad is performed, and the stoppage of interstate trains becomes an improper and illegal interference with interstate commerce. (3) And this, whether the interference be directly by the legislature or by its command through the orders of an administrative body. (4) The fact of local facilities this court may determine, such fact being necessarily involved in the determination of the Federal question whether an order concerning an interstate train does or does not directly regulate interstate commerce, by imposing an arbitrary requirement."

It is obvious that the underlying test, as clearly shown by this summary, is the resolution of a question of fact, viz., the adequacy of the local facilities.

14 12 How. (U. S.) 299, 319 (1851). Is it not possible that In re Rahrer, 140 U. S. 545 (1891), as contrasted with Leisy v. Hardin, 135 U. S. 100 (1890), finds its principal explanation in the deference of the Court for the decision of