United States v. Lovett, 328 U.S. 303 (1946)

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Author: Justice Frankfurter

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United States v. Lovett, 328 U.S. 303 (1946)

MR. JUSTICE FRANKFURTER, whom MR. JUSTICE REED joins, concurring.

Nothing would be easier than personal condemnation of the provision of the Urgent Deficiency Appropriation Act of 1943, here challenged . § 304, 57 Stat. 431, 450.{1} But the judicial function exacts considerations very different from those which may determine a vote in Congress for or against a measure. And what may be decisive for a Presidential disapproval may not at all satisfy the established criteria which alone justify this Court’s striking down an act of Congress.

It is not for us to find unconstitutionality in what Congress enacted, although it may imply notions that are abhorrent to us as individuals or policies we deem harmful to the country’s wellbeing. Although it was proposed at the Constitutional Convention to have this Court share in the legislative process, the Framers saw fit to exclude it. And so,

it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.

Missouri, K. & T. R. Co. v. May, 194 U.S. 267, 270. This admonition was uttered by Mr. Justice Holmes in one of his earliest opinions, and it needs to be recalled whenever an exceptionally offensive enactment tempts the Court beyond its strict confinements.

Not to exercise by indirection authority which the Constitution denied to this Court calls for the severest intellectual detachment, and the most alert self-restraint. The scrupulous observance, with some deviations, of the professed limits of this Court’s power to strike down legislation has been, perhaps, the one quality the great judges of the Court have had in common. Particularly when Congressional legislation is under scrutiny, every rational trail must be pursued to prevent collision between Congress and Court. For Congress can readily mend its ways, or the people may express disapproval by choosing different representatives. But a decree of unconstitutionality by this Court is fraught with consequences so enduring and far-reaching as to be avoided unless no choice is left in reason.

The inclusion of § 304 in the Appropriation Bill undoubtedly raises serious constitutional questions. But the most fundamental principle of constitutional adjudication is not to face constitutional questions, but to avoid them, if at all possible. And so the

Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.

Brandeis, J., concurring, in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, at 346. That a piece of legislation under scrutiny may be widely unpopular is as irrelevant to the observance of these rules for abstention from avoidable adjudications as that it is widely popular. Some of these rules may well appear over-refined or evasive to the laity. But they have the support not only of the profoundest wisdom. They have been vindicated, in conspicuous instances of disregard, by the most painful lessons of our constitutional history.

Such are the guiding considerations enjoined by constitutional principles and the best practice for dealing with the various claims of unconstitutionality so ably pressed upon us at the bar.

The Court reads § 304 as though it expressly discharged respondents from office which they held and prohibited them from holding any office under the Government in the future. On the basis of this reading, the Court holds that the provision is a bill of attainder, in that it "inflicts punishment without a judicial trial," Cummins v. Missouri, 4 Wall. 277, 323, and is therefore forbidden by Article I, § 9 of the Constitution. Congress is said to have inflicted this punishment upon respondents because it disapproved the beliefs they were thought to hold. Such a colloquial treatment of the statute neglects the relevant canons of constitutional adjudication and disregards those features of the legislation which call its validity into question on grounds other than inconsistency with the prohibition against bills of attainder. To characterize an act of Congress as a bill of attainder readily enlists, however, the instincts of a free people who are committed to a fair judicial process for the determination of issues affecting life, liberty, or property, and naturally abhor anything that resembles legislative determination of guilt and legislative punishment. As I see it, our duty precludes reading § 304 as the Court reads it. But even if it were to be so read the provision is not within the constitutional conception of a bill of attainder.

Broadly speaking, two types of constitutional claims come before this Court. Most constitutional issues derive from the broad standards of fairness written into the Constitution (e.g., "due process," "equal protection of the laws," "just compensation"), and the division of power as between States and Nation. Such questions, by their very nature, allow a relatively wide play for individual legal judgment. The other class gives no such scope. For this second class of constitutional issues derives from very specific provisions of the Constitution. These had their source in definite grievances, and led the Fathers to proscribe against recurrence of their experience. These specific grievances and the safeguards against their recurrence were not defined by the Constitution. They were defined by history. Their meaning was so settled by history that definition was superfluous. Judicial enforcement of the Constitution must respect these historic limits.

The prohibition of bills of attainder falls, of course, among these very specific constitutional provisions. The distinguishing characteristic of a bill of attainder is the substitution of legislative determination of guilt and legislative imposition of punishment for judicial finding and sentence.

A bill of attainder, by the common law, as our fathers imported it from England and practised it themselves before the adoption of the Constitution, was an act of sovereign power in the form of a special statute . . . by which a man was pronounced guilty or attainted of some crime, and punished by deprivation of his vested rights, without trial or judgment per legem terrae.

Farrar, Manual of the Constitution (1867) 419. And see 2 Story, Commentaries on the Constitution (5th ed., 1891) 216; 1 Cooley, Constitutional Limitations (8th ed., 1927) 536. It was this very special, narrowly restricted, intervention by the legislature, in matters for which a decent regard for men’s interests indicated a judicial trial, that the Constitution prohibited. It must be recalled that the Constitution was framed in an era when dispensing justice was a well established function of the legislature. The prohibition against bills of attainder must be viewed in the background of the historic situation when moves in specific litigation that are now the conventional, and, for the most part, the exclusive, concern of courts were commonplace legislative practices. See Calder v. Bull, 3 Dall. 386; Wilkinson v. Leland, 2 Pet. 627, 660; Baltimore & Susquehanna R. Co. v. Nesbit, 10 How. 395; Pound, Justice According to Law, II (1914) 14 Col.L.Rev. 1-12; Woodruff, Chancery in Massachusetts (1889) 5 L.Q.Rev. 370. Cf. Sinking-Fund Cases, 99 U.S. 700. Bills of attainder were part of what now are staple judicial functions which legislatures then exercised. It was this part of their recognized authority which the Constitution prohibited when it provided that "No Bill of Attainder . . . shall be passed." Section 304 lacks the characteristics of the enactments in the Statutes of the Realm and the Colonial Laws that bear the hallmarks of bills of attainder.

All bills of attainder specify the offense for which the attainted person was deemed guilty and for which the punishment was imposed. There was always a declaration of guilt, either of the individual or the class to which he belonged. The offense might be a preexisting crime or an act made punishable ex post facto. Frequently, a bill of attainder was thus doubly objectionable because of its ex post facto features. This is the historic explanation for uniting the two mischiefs in one clause, "No Bill of Attainder or ex post facto Law shall be passed." No one claims that § 304 is an ex post facto law. If it is, in substance, a punishment for acts deemed "subversive" (the statute, of course, makes no such charge) for which no punishment had previously been provided, it would clearly be ex post facto. Therefore, if § 304 is a bill of attainder, it is also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that it is not are persuasive that it cannot be a bill of attainder. No offense is specified, and no declaration of guilt is made. When the framers of the Constitution proscribed bills of attainder, they referred to a form of law which had been prevalent in monarchical England, and was employed in the colonies. They were familiar with its nature; they had experienced its use; they knew what they wanted to prevent. It was not a law unfair in general, even unfair because affecting merely particular individuals, that they outlawed by the explicitness of their prohibition of bills of attainder. "Upon this point, a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349. Nor should resentment against an injustice displace controlling history in judicial construction of the Constitution.

Not only does § 304 lack the essential declaration of guilt. It likewise lacks the imposition of punishment in the sense appropriate for bills of attainder. The punishment imposed by the most dreaded bill of attainder was, of course, death; lesser punishments were imposed by similar bills more technically called bills of pains and penalties. The Constitution outlaws this entire category of punitive measures. Fletcher v. Peck, 6 Cranch 87, 138; Cummins v. Missouri, 4 Wall. 277. The amount of punishment is immaterial to the classification of a challenged statute. But punishment is a prerequisite.

Punishment presupposes an offense, not necessarily an act previously declared criminal, but an act for which retribution is exacted. The fact that harm is inflicted by governmental authority does not make it punishment. Figuratively speaking, all discomforting action may be deemed punishment, because it deprives of what otherwise would be enjoyed. But there may be reasons other than punitive for such deprivation. A man may be forbidden to practice medicine because he has been convicted of a felony, Hawker v. New York, 170 U.S. 189, or because he is no longer qualified, Dent v. West Virginia, 129 U.S. 114.

The deprivation of any rights, civil or political, previously enjoyed, may be punishment, the circumstances attending and the causes of the deprivation determining this fact.

Cummins v. Missouri, 4 Wall. 277, 320.

Is it clear, then, that the respondents were removed from office, still accepting the Court’s reading of the statute, as a punishment for past acts? Is it clear, that is, to that degree of certitude which is required before this Court declares legislation by Congress unconstitutional? The disputed section does not say so. So far as the House of Representatives is concerned, the Kerr Committee, which proposed the measure, and many of those who voted in favor of the Bill (assuming it is appropriate to go behind the terms of a statute to ascertain the unexpressed motive of its members), no doubt considered the respondents "subversive," and wished to exclude them from the Government because of their past associations and their present views. But the legislation upon which we now pass judgment is the product of both Houses of Congress and the President. The Senate five times rejected the substance of § 304. It finally prevailed, not because the Senate joined in an unexpressed declaration of guilt and retribution for it, but because the provision was included in an important appropriation bill. The stiffest interpretation that can be placed upon the Senate’s action is that it agreed to remove the respondents from office (still assuming the Court’s interpretation of § 304) without passing any judgment on their past conduct or present views.

Section 304 became law by the President’s signature. His motive in allowing it to become law is free from doubt. He rejected the notion that the respondents were "subversive," and explicitly stated that he wished to retain them in the service of the Government. H.Doc. No. 264, 78th Cong., 1st Sess. Historically, Parliament passed bills of attainder at the behest of the monarch. See Adams, Constitutional History of England (Rev. ed., 1935) 228-29. The Constitution, of course, provides for the enactment of legislation even against disapproval by the Executive. But to hold that a measure which did not express a judgment of condemnation by the Senate, and carried an affirmative disavowal of such condemnation by the President constitutes a bill of attainder, disregards the historic tests for determining what is a bill of attainder. At the least, there are such serious objections to finding § 304 a bill of attainder that it can be declared unconstitutional only by a failure to observe that this Court reaches constitutional invalidation only through inescapable necessity.

It must be evident to anyone that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility.

1 Cooley, Constitutional Limitations (8th ed., 1927) 332.

But even if it be agreed, for purposes of characterizing the deprivation of the statute as punishment, that the motive of Congress was past action of the respondents, presumed motive cannot supplant expressed legislative judgment.

The expectations of those who sought the enactment of legislation may not be used for the purpose of affixing to legislation when enacted a meaning which it does not express.

United States v. Goelet, 232 U.S. 293, 298. Congress omitted from § 304 any condemnation for which the presumed punishment was a sanction. Thereby, it negatived the essential notion of a bill of attainder. It may be said that such a view of a bill of attainder offers Congress too easy a mode of evading the prohibition of the Constitution. Congress need merely omit its ground of condemnation, and legislate the penalty! But the prohibition against a "Bill of Attainder" is only one of the safeguards of liberty in the arsenal of the Constitution. There are other provisions in the Constitution, specific and comprehensive, effectively designed to assure the liberties of our citizens. The restrictive function of this clause against bills of attainder was to take from the legislature a judicial function which the legislature once possessed. If Congress adopted, as it did, a form of statute so lacking in any pretension to the very quality which gave a bill of attainder its significance, that of a declaration of guilt under circumstances which made its determination grossly unfair, it simply passed an act which this Court ought not to denounce as a bill of attainder. And not the less so because Congress may have been conscious of the limitations which the Constitution has placed upon it against passing bills of attainder. If Congress chooses to say that men shall not be paid, or even that they shall be removed from their jobs, we cannot decide that Congress also said that they are guilty of an offense. And particularly we cannot so decide as a necessary assumption for declaring an act of Congress invalid. Congress has not legislated that which is attributed to it, for the simple fact is that Congress has said nothing. The words Congress used are not susceptible of being read as a legislative verdict of guilt against the respondents, no matter what dictionary, or what form of argumentation, we use as aids.

This analysis accords with our prior course of decision. In Cummins v. Missouri, supra, and Ex parte Garland, 4 Wall. 333, the Court dealt with legislation of very different scope and significance from that now before us. While the provisions involved in those cases did not condemn or punish specific persons by name, they proscribed all guilty of designated offenses. Refusal to take a prescribed oath operated as an admission of guilt, and automatically resulted in the disqualifying punishment. Avoidance of legislative proscription for guilt under the provisions in the Cummins and Garland cases required positive exculpation. That the persons legislatively punished were not named was a mere detail of identification. Congress and the Missouri legislature, respectively, had provided the most effective method for insuring identification. These enactments followed the example of English bills of attainder which condemned a named person and "his adherents." Section 304 presents a situation wholly outside the ingredients of the enactments that furnished the basis for the Cummins and Garland decisions.{2}

While § 304 is not a bill of attainder, as the gloss of history defines that phrase in the Constitution, acceptance of the Court’s reading of § 304 would raise other serious constitutional questions. The first in magnitude and difficulty derives from the constitutional distribution of power over removal. For about a century, this Court astutely avoided adjudication of the power of control as between Congress and the Executive of those serving in the Executive branch of the Government "until it should be inevitably presented." Myers v. United States, 272 U.S. 52, 173. The Court then gave the fullest consideration to the problem. The case was twice argued, and was under consideration for nearly three years. So far as the issues could be foreseen, they were elaborately dealt with in opinions aggregating nearly two hundred pages. Within less than a decade, an opinion of fifteen pages largely qualified what the Myers case had apparently so voluminously settled. Humphrey’s Executor v. United States, 295 U.S. 602. This experience serves as a powerful reminder of the Court’s duty so to deal with Congressional enactments as to avoid their invalidation unless a road to any other decision is barred.

The other serious problem the Court’s interpretation of § 304 raises is that of due process. In one aspect, this is another phase of the constitutional issue of the removal power. For, if § 304 is to be construed as a removal from office, it cannot be determined whether singling out three government employees for removal violated the Fifth Amendment until it is decided whether Congress has a removal power at all over such employees, and how extensive it is. Even if the statute be read as a mere stoppage of disbursement, the question arises whether Congress can treat three employees of the Government differently from all others. But that question we do not have to answer. In any event, respondents are entitled to recover in this suit, and their remedy -- a suit in the Court of Claims -- is the same whatever view one takes of the legal significance of § 304. To be sure, § 304 also purports to prescribe conditions relating to future employment of respondents by the Government. This, too, is a question not now open for decision. Reemployment by any agency of the Government, or the desire for reemployment, is not now in controversy, "and, consequently, the subject may well be postponed until it actually arises for decision." Wilson v. New, 243 U.S. 332, 354. The "great gravity and delicacy" of this Court’s function in passing upon the validity of an act of Congress is called into action only when absolutely necessary. Steamship Co. v. Emigration Commissioners, 113 U.S. 33, 39. It should not be exercised on the basis of imaginary and nonexistent facts. See Brandeis, J., concurring, in Ashwander v. Tennessee Valley Authority, supra, at 338-345.

Since it is apparent that grave constitutional doubts will arise if we adopt the construction the Court puts on § 304, we ought to follow the practice which this Court has established from the time of Chief Justice Marshall. The approach appropriate to such a case as the one before us was thus summarized by Mr. Justice Holmes in a similar situation:

. . . the rule is settled that, as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act. Even to avoid a serious doubt, the rule is the same. United States v. Delaware & Hudson Co., 213 U.S. 366, 407, 408. United States v. Standard Brewery, 251 U.S. 210, 220. Texas v. Eastern Texas R.R. Co., 258 U.S. 204, 217. Bratton v. Chandler, 260 U.S. 110, 114. Panama R.R. Co. v. Johnson, 264 U.S. 375, 390. Words have been strained more than they need to be strained here in order to avoid that doubt. United States v. Jin Fuey Moy, 241 U.S. 394, 401, 402.

Blodgett v. Holden, 275 U.S. 142, 148.

"When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U.S. 22, 62.

Brandeis, J., concurring, in Ashwander v. Tennessee Valley Authority, supra, at 348.

We are not faced inescapably with the necessity of adjudicating these serious constitutional questions. The obvious or, at the least, the one certain, construction of § 304 is that it forbids the disbursing agents of the Treasury to pay out of specifically appropriated moneys sums to compensate respondents for their services. We have noted the cloud cast upon this interpretation by manifestations by committees and members of the House of Representatives before the passage of this section. On the other hand, there is also much in the debates not only in the Senate, but also in the House, which supports the mere fiscal scope to be given to the statute. That such a construction is tenable settles our duty to adopt it and to avoid determination of constitutional questions of great seriousness.

Accordingly, I feel compelled to construe § 304 as did Mr. Chief Justice Whaley below, 104 Ct.Cls. 557, 584, 66 F.Supp. 142, 147-148, whereby it merely prevented the ordinary disbursal of money to pay respondents’ salaries. It did not cut off the obligation of the Government to pay for services rendered, and the respondents are, therefore, entitled to recover the judgment which they obtained from the Court of Claims.

1.

SEC. 304. No part of any appropriation, allocation, or fund (1) which is made available under or pursuant to this Act, or (2) which is now, or which is hereafter made, available under or pursuant to any other Act, to any department, agency, or instrumentality of the United States, shall be used, after November 15, 1943, to pay any part of the salary, or other compensation for the personal services, of Goodwin B. Watson, William E. Dodd, Junior, and Robert Morss Lovett, unless prior to such date such person has been appointed by the President, by and with the advice and consent of the Senate: Provided, That this section shall not operate to deprive any such person of payment for leaves of absence or salary, or of any refund or reimbursement, which have accrued prior to November 15, 1943: Provided further, That this section shall not operate to deprive any such person of payment for services performed as a member of a jury or as a member of the armed forces of the United States nor any benefit, pension, or emolument resulting therefrom.

2. Even against the holding that such enactments were bills of attainder, Mr. Justice Miller wrote the powerful dissent concurred in by Mr. Chief Justice Chase, Mr. Justice Swayne, and Mr. Justice Davis. 4 Wall. 333, 382.

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Chicago: Frankfurter, "Frankfurter, J., Concurring," United States v. Lovett, 328 U.S. 303 (1946) in 328 U.S. 303 328 U.S. 319–328 U.S. 330. Original Sources, accessed September 22, 2018, http://www.originalsources.com/Document.aspx?DocID=CP9IAQ7C69A4Q2W.

MLA: Frankfurter. "Frankfurter, J., Concurring." United States v. Lovett, 328 U.S. 303 (1946), in 328 U.S. 303, pp. 328 U.S. 319–328 U.S. 330. Original Sources. 22 Sep. 2018. www.originalsources.com/Document.aspx?DocID=CP9IAQ7C69A4Q2W.

Harvard: Frankfurter, 'Frankfurter, J., Concurring' in United States v. Lovett, 328 U.S. 303 (1946). cited in 1946, 328 U.S. 303, pp.328 U.S. 319–328 U.S. 330. Original Sources, retrieved 22 September 2018, from http://www.originalsources.com/Document.aspx?DocID=CP9IAQ7C69A4Q2W.