Congress, the Constitution, and the Supreme Court (Warren)

An American citizen will never understand the form of government under which he is living, unless he understands why we must have a Supreme Court. And he will never understand why we must have a Supreme Court, until he understand the form of government under which he is living.

This declaration at the beginning of his 1925 book Congress, the Constitution, and the Supreme Court leaves no doubt about the importance Charles Warren (1868-1954) attaches to his subject. The Supreme Court in the United States History, a multivolume work, had amply demonstrated Warren’s credentials in this area and brought him, in 1923, a Pulitzer Prize.

The Boston-born and Harvard-educated lawyer and historian moved to Washington, D.C., in 1914, as Assistant Attorney General of the United States and served in that capacity in the Wilson administration for four years. Warren practiced law in Washington for the rest of his career and also lectured and wrote on law and history.

Classics of Liberty Editorial Advisory Board member Professor Thomas G. Barnes calls Congress, the Constitution, and the Supreme Court “a supplement to his award-winning history of the court.” In it, “one of the most influential jurists in both law and politics from the 1920s to the 1940s… analyses the doctrine of judicial review.”

At the time Warren was writing, the Court was under attack. Senator William E. Borah had proposed that decisions on the unconstitutionality of Acts of Congress should require a vote of at least seven of the nine Supreme Court justices. Senator Robert M. La Follette had proposed a constitutional amendment “that a statute enacted once may be held unconstitutional by the Court, but if enacted a second time, at least by a two-thirds majority, it shall thereafter be held constitutional and forever free from attack.” That is, as Warren continues,”Congress may overrule the Court, whenever such Congress shall say twice what it ought not to have said even once. A bad statute shall become good by repetition.”

Warren held that “attacks upon the Supreme Court are attacks upon the very form of government of the United States.” So we may “appreciate why the Supreme Court has the power which it exercises,” Warren invites his readers to learn about “the history of that part of the Federal Constitution which deals with the Supreme Court in its relation to Acts of Congress” and about the history of state constitutions. He tells us what early Congresses thought about the Court’s powers, how the Court came to have authority over Congress when the latter was seen to overstep constitutional limits, and the role played by founders’ reactions to the British system. The final chapter reviews the fifty-three decisions of the Court that declared, from 1789 to 1924 and beginning with Marbury v. Madison, Acts of Congress to be unconstitutional.

“The argument throughout is restrained, yet forceful,” writes Charles K. Burdick, who was dean of the Cornell University College of Law at the time this classic first appeared, “and the information, which is so well presented, should help greatly in clarifying the minds of the many who will read the book.”


Beginning March 1, 2017, this Gryphon Editions quarter leather-bound volume will be on sale for the entire week. Don’t hesitate to add this wonderful work to your personal library!

 

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