In the spring of 1952, President Harry Truman faced a nationwide strike that he feared would undermine the production of steel and thus the prosecution of the Korean War and American efforts through the Marshall Plan to rebuild Europe in the aftermath of World War II. In response, he issued an executive order to keep the steel industry open and operating. In June, the Supreme Court, in Youngstown Sheet & Tube Co. rejected the constitutionality of the presidential seizure of the steel mills, which purported to be an exercise of presidential power that rested, at least in part, on the Commander in Chief Clause and the president’s authority over foreign affairs. The Court, in a 6-3 opinion written by Justice Hugo Black, held that the president lacked both constitutional and statutory authority to take possession of the property.
The Court’s ruling in the Steel Seizure Case, a landmark decision by any measure, and a rare judicial rebuke to the executive, was free of acrimony between the branches. To be sure, President Truman was miffed at the Court, which included several friends--poker buddies--who ruled against him despite his belief that he had acted lawfully. Moreover, the cocktail parties that Truman and the Justices routinely attended, were put on hold, until the frosty relations thawed, but when Justice Black hosted a reception, Truman sidled up to his old friend from their days in the Senate during the New Deal and broke the ice. “Hugo,” said the president, “I don’t much care for your jurisprudence, but by golly, I like your bourbon.”
The Court did not perceive in Truman’s executive order any dictatorial aims. On the contrary, as Justice Felix Frankfurter wrote of his friend in a concurring opinion: “It is absurd to see a dictator in a representative product of the sturdy democratic traditions of the Mississippi Valley.” But Frankfurter, like his colleagues, was concerned about the concentration of power in the executive. “The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked disregard of the restrictions that fence in even the most disinterested assertion of authority.”
Frankfurter’s concern about the “unchecked disregard” of restrictions --threats to the rule of law-- reflected the views of his brethren, including those of Justice Robert H. Jackson, whose concurrence remains perhaps the most influential of the Justices’ discourses on presidential power. Perhaps the finest writer among those who have enjoyed a seat on the nation’s High Bench, Jackson wrote of the essence of free government, which rests on the rule of law.
Borrowing from Kipling’s poem, “The Old Issue,” Jackson wrote, “The essence of our free government, is ‘leave to live by no man’s leave, underneath the law’--to be governed by those impersonal forces which we call law. Our government is fashioned to fulfill this concept so far as humanly possible.” “The leave to live by no man’s leave” rests on the assurance that the executive, “except for recommendation and veto,” has no legislative power. “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.” Truman’s usurpation of legislative power to regulate private property breached the historic practice of parliamentary control of the lawmaking power, and it was the Court’s duty to rein him in.
History confirms Justice Black’s observation that the struggle for a written constitution was “to make certain that men in power would be governed by law,” and that the people would be subject, “not to the arbitrary fiat of the man or men in power,” but by “the law of the land.” To dismiss adherence to the rule of law is to strike at the heart of our democratic system.
The demise of the rule of law would be life-altering and result in incalculable losses. No citizen--liberal or conservative--would be spared the effects of its evisceration. The magisterial First Amendment freedoms --speech, press and religion-- stout protections for the right of Americans to live freely, would be vulnerable. So, too, the Second Amendment, as well as the great procedural guarantees that stand between arrest and arbitrary imprisonment.
For lovers of liberty, preservation of the rule of law is imperative.
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.
Comments