The Chief Justiceship of Melville W. Fuller, 1888-1910

7. Issues of Government

7 ISSUES OF GOVERNMENT During the late nineteenth century the needs of a changing and more complex society posed novel challenges to established modes of governance . As the federal government gradually expanded in size and function , the Supreme Court was called upon to adjudicate the constitutional boundaries of the political branches and police the separation of powers. Moreover, the notion of divided sovereignty inherent in federalism produced bruising clashes between claims of states' rights and federal authority . Foreign affairs occupied an increasingly vital place in American public life following the Spanish-American War of 1898, and the acquisition of overseas territories raised contentious political and legal issues. Under Fuller's leadership the Supreme Court began to playa more active role in determining structural developments and defining governmental power. In addressing these matters the justices engaged in a searching examination ofconstitutional procedures and institutions. There was often intense conflict between traditional values and the perceived needs of the emerging social order. Pulled by contrary forces, the Fuller Court found it difficult to formulate tidy solutions to perplexing governmental and jurisdictional issues. Although they were committed to federalism and respect for state autonomy, Fuller and his associates enhanced the authority of the federal judiciary to review state legislation. FOREIGN RELATIONS The conduct of foreign affairs emerged as a controversy in American public life during the 1890s. As a result, the Supreme Court under Fuller had to settle many disputes pertaining to foreign policy. The general trend of these decisions was to strengthen the hand of the executive branch and Congress over relations with foreign nations. 172 ISSUES OF GOVERNMENT 173 This current was demonstrated by Ceofroy v. Riggs (1890), in which a unanimous Court gave a capacious reading to the treaty power. The case involved the right of French citizens to inherit land in the District of Columbia. Justice Stephen J. Field, for the Court, construed a treaty with France as modifying the common-law doctrine that prevented aliens from inheriting land. He broadly declared that the treaty power "extends to all proper subjects of negotiation between our government and the governments of other nations."l Field intimated that Congress might by treaty provision accomplish results that it could not achieve directly through legislation. The outcome in Ceofroy set the stage for expansion of the treaty power following Fuller's tenure. Fuller and his associates also confronted a group of prize cases arising from the Spanish-American War. In most instances the justices sustained the maritime seizure of Spanish vessels as prizes of war. Fuller was especially inclined to uphold the seizure of prizes and wrote for the Court in four such cases.2 But in the important case of The Paquete Habana (1900) the Supreme Court asserted that the federal government was bound by the rules of international law that exempted coastal fishing ships from seizure. Writing for a majority of six, Justice Horace Gray formulated a much quoted proposition: International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction , as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.3 He qualified the binding effect of customary international law, however, by observing that courts should apply international law in the absence of any federal statute that mandated a different result. Fuller, speaking for the dissent, denied that there was "any such established rule" exempting fishing vessels and urged deference to the president's decisions in carrying on war. Despite Fuller's protest, the Paquete Habana decision was a 1. Geofroy v. Riggs, 133 U.S. 258, 266 (1890). 2. Willard L. King, Melville Weston Fuller: ChiefJustice ofthe United States, 1888-1910 (New York: Macmillan, 1950, reprint Chicago: University of Chicago Press, 1967),248. 3. The Paquete Habana, 175 U.S. 677, 700 (1900). 174 THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER, 1888-1910 milestone in the recognition ofcustomary international law as part of the law of the United States.4 The acquisition of Puerto Rico and the Philippines following the war with Spain sparked an intense but short-lived debate concerning the emergence of the United States as an imperial power. Previous territorial acquisitions had been made with the implicit understanding that...