Lions under the Throne by Charles P. Curtis, Jr. (review)

BOOK REVIEWS 517 of completion, would be considered the Topics which is concerned mainly with Dialectics, and lastly the work on Sophistical, Refutations. For the latter two, Dr. Mander's book would afford some valuable matter and serve ultimately as a model for a book that would put rationality into this irrational and irreverent age. In this way, logic will regain its old vitality and become a real force in shaping the world. Logic will thus help to lead man to the Logos Who is the beginning and the end. RAYMOND SMITH, O.P. Dominican HOU8e of Studiu. Waahington, D. C. Lions under the Throne. By CHARLES P. CURTIS, JR. Boston. Houghton Mifflin Company, 1947. Pp. 377, with index. $3.50. When the Constitution of the United States created three co-ordinate branches of government, it expected one of them, the judiciary, to occupy the position of guardians of the law: lions, but lions under the throne. This is the thesis advanced by Charles P. Curtis, Jr., in a volume which takes its title from Francis Bacon's" Essay on Judicature." An explanation of the title, badly needed by the sorely tried reader, is given on page 165. On page ~33 the whole legal philosophy of Mr. Curtis is presented in two sentences. Both of these pages deserve specific mention, because they contain words of clarity shining by contrast with vast stretches of the remainder of the book. Since its appearance in the spring, Curtis' book has been generally hailed as a real achievement, a valuable study of the Supreme Court. This, in fact, is what its sub-title claims that it is. It is almost impossible to understand how any reviewer, no matter how superficially familiar with the achievements or the history of the Court, could give an unqualifiedly favorable judgment on a book as crowded with grave defects as this is. There are errors of fact and errors of inference; strange and unintelligible grammatical expressions are used; arguments are advanced on both sides of questions, and there is no evidence that the author realizes his inconsistency, or would attempt to resolve it if he did become aware of it. It should be plain that the volume is inaccurate, inadequate, and to a great extent pernicious. Its worthier features, however, should be mentioned before a detailed consideration of less worthy ones is undertaken. There are occasions on which quick references need to be made to the factual background of certain leading cases decided by the Supreme Court. For those occasions, Lions under the Throne contain short and usually accurate summaries of this kind of material; they should prove serviceable 518 BOOK REVIEWS for occasions on which extensive research into case histories is not essential. For the period before the Civil War, there is very little discussion of cases, largely because Curtis' purpose is to show how the Court has changed its interpretations since 1865,. Following that date, however, and employing much the same procedure as that which might be used for a series of informal lectures on subjects connected with the Constitution, he explores the hundred or more decisions which he believes are particularly significant. }'or his examination of pertinent facts behind the decisions, for his listing of biographical details concerning the Justices who have occupied positions on the Court during the last quarter-century, and for his inclusion of the Constitution of the United States as an appendix to his study, Mr. Curtis is to be congratulated. No other features of his book contain so much merit, and it is particularly to be note<;! that his flippant manner in the preface, bibliography, and notes lessens considerably the value of each. Curtis treats the whole post-Civil War history of the Court as does a guide touring the Supreme Court building. Any visitor to Washington is expected to view this building, and to tour its halls and apartments under the care of a guide who points out special features of each part of the premises. His stories are fascinatingly colorful; one 1succeeds the other so rapidly that the visitor is either enthralled or stupefied, according to his temperament. Questions asked by his fellow tourists are most accommodatingly answered, usually with a wealth of additional biographical or historical material. The visitor is usually well satisfied-unless he returns for a second or a third visit. Then he finds the same procedure repeated in the same manner and with the same details-but these are not always applied to the same persons or places. The guides are so accommodating that they will apply the anecdotes wherever they believe their audience will find them most appealing. Curtis treats the Court in this manner; it seems never to matter to him that he has just applied to one case or one Justice a remark for which he now has a new application. He refers slightingly to the seductiveness of the cliche, but he uses it wherever it suits him, and whatever it is. The comparison between Curtis and a guide to the Supreme Court building is ineluctable. Both really deal with non-essentials; in both, there is the same mingling of important facts with irrelevant details, the same almost desperate effort to breathe life into what each obviously conceives as a dry-as-dust legal atmosphere. Perhaps the only corrective to this attitude can be applied by the Court itself, which is surely badly served by such bungling, self-appointed apologists as Curtis. What is added to a discussion of the Schechter case, for example, by saying that Mr. Justice Stone looked pleased as the Court assembled, perhaps because of the cherry blossoms outside? There is certainly no new light thrown on the decision by this remark, but a great deal is cast upon Curtis' knowledge BOOK REVIEWS 519 of botanical phenomena. On the date given, there could have been no cherry blossoms anywhere in Washington, and particularly not around the court. Again we read that Mrs. Hughes appeared in the courtroom on 12 April 1937. Only the bare statement is made, and what significance her presence had, if any, is left to the reader's imagination. In the same way, Curtis remarks that, in the Jones and Laughlin case, McReynolds spoke extemporaneously and in a loud voice. Unless he makes this ob!!ervation for the purpose of showing McReynolds in an unfavorable light, a quite logical inference, there is again no reason that Curtis might not better have allowed the Supreme Court guides to do their own work. The fact, however, that he adopts this attitude is indicative of a fault which goes much deeper than superficiality of treatment. Throughout his study, Curtis seems to have a real contempt for his reader, and this merely because he is a reader. It is as though the author descended from his own Olympian heights to explain matters of great importance to small, ill-educated minds, for whom he must couch his wisdom in simplified concepts, appealing by their simplicity and color to assumed juvenility. All of these features are sufficiently deplorable in a purportedly serious study of an institution like the Supreme Court; even more objectionable is the attitude underlying such an approach. While occasionally the author gives evidence of really sound judgment, as when he remarks that: " You do not have to be a lawyer to recognize the necessity of having a sound and independent system of courts and justices," (Page 290) his meaning is far from being lucid and irrefutable. What Curtis means by a sound and independent system would not secure universal agreement. No Justice is really sound and independent, he contends, if his thinking is conceptual (here one might confusedly inquire what else it could be), and for this reason he declares that only Holmes had a true understanding of the Court's function. Marshall, to give just one example of Curtis' thought, was far from being sound and independent. To prove his contention that Marshall was far from being the able jurist he is generally considered, the author examines the famous decision in the case of M'Culloch v. Maryland. He asserts that Marshall deliberately ignored the provision of the Maryland law which declared that state banks were to be taxed as well as national banks, and that Marshall's decision, which came to be the controlling one in the whole field of national taxation, was dictated purely by his concept of what ought to be the relation of national and state governments. Putting aside the surely debatable question of Marshall's right to proceed in this manner, we may inquire into the concept which dominates Curtis' mind. His description of the Maryland statute is exceedingly inaccurate, and his account of the decision is therefore grossly unfair to Marshall. The Maryland law in question provided that all banks not chartered by 520 BOOK REVIEWS the state be taxed; obviously there was only one such bank, that instrumentality of the national government whose constitutional existence Marshall upheld. It would seem that the Maryland statute was one of the earliest examples of classification: viz., that legal device of artificially grouping corporate entities in a state for the purpose of taxation or other legislative action. But Mr. Curtis' apparent ignorance of this basic principle of jurisprudence called classification is far less disconcerting than his approbation of a deliberate distortion of the Chief Justice's words. After explaining what he conceives to be Marshall's false position in this tax case, Curtis quotes the eminent Chief Justice's words to the effect that " the power to tax involves the power to destroy " (Page 206.) Two pages later he reproduces a portion of a Holmes opinion in which the latter declares that Marshall said the taxing power is the power to destroy. Curtis not only does not correct Holmes's very serious distortion of Marshall's words, he makes them the foundation of his own attack upon the whole approach of the Court to the matter of taxation. Nothing could be more illustrative of the methods used by Curtis and Holmes, nor of the validity of many of their conclusions. Another legal concept which seems to be beyond Curtis' understanding is that by which the Court has declared that it alone can determine the question of separability: viz., that property of a statute which makes its parts susceptible of separate consideration and separable constitutionality. Curtis fails to see that, in declaring the invalidity of NRA legislation, the Court did not say that that separability provisions in an act would be ignored upon judicial presentation; on the contrary, the Court declared that it would have to weigh such provisions just as it weighs any other provisions of a statute. If parts of the act are separable when measured against the Constitution, the Court will so declare; otherwise, the whole act stands or falls together. Denial of separability does not necessarily condemn an act; it may operate equally well to sustain it. What is mystifying to any reader here is that Curtis would allow Congress to be the sole judge of the validity of any other type or portion of legislation. Here again there is evidence of his desire to have satisfaction both ways, just as long as it is he who is satisfied. He exemplifies this tendency when he refers (pages 114-115) to Hughes as " the wisest of our elder statesmen," and charges by innuendo (pages 126-7) that Hughes joined the majority in the Butler case simply to avoid another 5-4 decision. Either his opinion of elder statesmen is so poor that he sees nothing incompatible between his characterization and Hughes' action, or his opinion of Hughes suffered a marked diminution within a few pages. There is always the strong probability, of course, that Hughes actually voted with the majority because he agreed with it on principle. Mr. Curtis condemns principles out-of-hand. BOOK REVIEWS 521 It is this objection of the use of any principle or set of principles which makes Mr. Curtis' book so dangerous, and so bewildering. Not even in his own words, that the Court used the " right objection for the wrong reason," can he be justified. His book, rather, is a series of objections, often badly chosen, for no reason at all, for pure caprice. Case after case is cited, and condemned, for no other reason than that Mr. Curtis feels that it is bad. Since he dislikes principles so wholeheartedly, is it possible to find some one standard on which he bases his position? There is such a standard, but it takes assiduous search to discover it, and when discovered , it is found to be tantalizingly amorphous. On the first page of his study, the author remarks that "Continuity with the past is a necessity, but, as Holmes said, not a duty." This is as logical as saying that a heart is its beats; for whom is continuity a necessity, if for no one it is a duty? Evidently Curtis does not really mean this, for he says (page 17) , " If the Court cannot help but choose, it must prefer the Constitution." The Court, then, has a duty to perform, a consideration of legislation with some standard of the past. This must be the Constitution-but only, says Curtis, when no other standard can be used. What sort of argument is this, and how meanly does it beg the question of what the Court has sworn and been empowered to do? Clearer light is cast on Mr. Curtis' views by his statement (page 21): " A statute when it is enacted is only a project. Until it is put into operation, who knows how it will work? " Who, indeed, but does inability to prophesy concerning the efficiency of its operation justify anyone in continuing: "Not until then is it itself, an operation which can be observed and appraised." It is a temptation too strong to be resrsted to say that, by Mr. Curtis' statement, the Supreme Court offered him no material for observation during the recesses when decisions are written. Only when the Court speaks is it the Court; only when Curtis writes on the Court is he a person competent to write on the Court. But the last half of that observation is too obviously false to need further consideration. It would be strange, in any ordinarily scholarly work on constitutional law, to find a statement that this is really not law at all. Yet Curtis blithely tosses off such a remark (page 56), in a sort of parenthesis to his discussion of stare decisis. After more than a hundred pages devoted to sentiments of this description, Curtis finally brings out into the open the man whose legal philosophy, if such it may be called with propriety, has influenced him. This is Mr. Justice 'Holmes, whose laughter would have rung from the skies, we are told, if he had heard Roberts' opinion that " The motive of Congress is irrelevant to the validity of the legislation ." Curtis himself enjoys tremendously the exquisite ridiculousness of considering a statute by any other standard than that of expediency; on this occasron he thinks that only the motive of Congress should be 9 BOOK REVIEWS considered. There are other occasions where Congress requires a searching investigation of its motives, and needs to be treated with suspicion of an extreme kind. How is one to determine which it should be in a given instance? By consulting popular demand or even better, by examining Curtis' views on popular demand. Finally, tired of obscuring his thesis with vague expressions, Curtis openly declares (page 233) , " So the question is, Is your abstraction useful? Does it get you anywhere you can stand on? Does the result make sense? ... John Dewey has given us the philosophy that we should adopt here." Thirty pages farther into this theme, he quotes Holmes with approval as having stated that the best test of truth is its power to get accepted. If the reception accorded this book is any criterion, then it is surely a true book in every, sense of the word. One cannot help noticing, however, that the means by which Curtis arrives at his statements is the very one he criticizes so severely in others. He assumes as correct a standard by which he seeks to measure all Court activity. The conceptualism he decries is one he must assume, even though in inverted fashion, before he can arrive at the conclusions he advances. This conceptualism, in turn, since it is based on Holmes' theories of sociological jurisprudence, enables him to apotheosize Holmes, and to say of his dissent in Meyers v. Nebraska that it is "the necessary approach to the whole of our immense problem." It is a mere detail that Holmes' dissent emphasizes the alleged right of a State to ignore the rights of parents over the education of their children, and that this attitude is praised in almost the same breath which finds Curtis extolling Holmes' advocacy of individual rights. Consistency matters not at all, providing only Holmes is upheld as the champion of the democratic process. To exemplify the conclusions he comes to concerning this process, he formulates two rules for the Court: " Where the democratic process is not working, and the statute in question is not its result, the Court is free to make up its own mind without the exercise of any 1elf-restraint "; (page 327) ". . . where the democratic process is itself attacked, the Court should exercise less than no restraint." (page 328) To make his meaning crystalline, he concludes: " The function of the Court, then, includes philosophy as well as law and statesmanship. Not, you will understand , the practice of metaphysics-the more sparingly they do that the better-but the function which Whitehead gave philosophy. 'I hold,' he said, ' that philosophy is the critic of abstraction.' " Both Whitehead and Curtis convict themselves out of their own mouths, for how can one assume the position of critic without first finding and fixing the position? The Court, if it followed Curtis' views, would always abandon any hope of discovering immutable laws above those made by human legislatures; it would abolish its belief in fundamental human BOOK REVIEWS 528 rights; it would measure statutes only by the state of public need-but no matter what Curtis does, he cannot make the Court do anything but measure and weigh. The remorseless weight of every human legal system is far too great for Curtis' strength to overturn, and even as he concludes his argument for no standards he must admit that standards are necessary. The sub-title of his study, then, ought to appear with quotation marks around it. It is an inchoate, incoherent, inaccurate mass of facts, errors, opinions, surmises, and prejudices. Holmes' mantle has surely not fallen on Curtis' shoulders, despite the latter's idolatry of Holmes, for the Justice could never have been guilty of such supreme contempt of his Ieaders as would have allowed him to perpetrate such solecisms as these: "Being a lawyer myself, you must allow me to cite authority. (Page 2) " The fact is, when we come upon an ambiguity, we must take it to be deliberate. Of course it may have been negligent." (Page S) " The judicial process is a part of the operation by which the law is fitted into the rest of law." (Page 7) "Who drives fat oxen must themselves be fat." (Page 58) ". . . so long as that spirit could keep its feet." (Page 153) ". . . it was needless and therefore futile. If it had not been, it would have been necessary." (Page 185) He destroys a clever argument on the texture of decisions by a confused analogy of the opinions which are included in the decisions with isomers, which Webster could tell him arc not mixtures, but compounds. In the last analysis, perhaps no one could summarize more neally than the really distinguished constitutional historian, Andrew Cunningham McLaughlin, the pitiful position into which Curtis, long engaged in publi<' and semi-public functions, has placed himself by publishing this book: " Men occupying the position of statesmen ·were free from the encumbrance of information concerning elementary principles of law and order." Catholic University of America, Waahington, D. C. SISTER MARIE CAROLYN, 0. P. The Theory of Human Culture. By JAMES FEIBLEMAN. New York: Duell, Sloan and Pearce, 1946. Pp. 868, with index. $5.00. "This book marks the attempt to establish the principles of sociology, understood as the science of culture, by employing ontology as an instrument of analysis and discovery." (p. xiii) .The sociologist may be pleased or vexed to have his science defined as that of culture; he should look with favor on any attempt to point out the ontological bases of sociology. There is up.doubtedly too little consideration given to the metaphysical roots of ...