Cleveland v. United States, 329 U.S. 14 (1946)

MR. JUSTICE RUTLEDGE, concurring.

I concur in the result. Differences have been urged in petitioners’ behalf between these cases and Caminetti v. United States, 242 U.S. 470.{1} Notwithstanding them, in my opinion, it would be impossible rationally to reverse the convictions at the same time adhering to Caminetti and later decisions perpetuating its ruling.{2}

It is also suggested, though not strongly urged, that Caminetti was wrongly decided, and should be overruled. Much may be said for this view. In my opinion, that case and subsequent ones following it extended the Mann Act’s coverage beyond the congressional intent and purpose, as the dissenting opinion of Mr. Justice McKenna convincingly demonstrated. 242 U.S. at 496.{3} Moreover, as I also think, this legislation and the problems presented by the cases arising under it are of such a character as does not allow this Court properly to shift to Congress the responsibility for perpetuating the Court’s error.

Notwithstanding recent tendency, the idea cannot always be accepted that Congress, by remaining silent and taking no affirmative action in repudiation, gives approval to judicial misconstruction of its enactments. See Girouard v. United States, 328 U.S. 61. It is perhaps too late now to deny that, legislatively speaking, as in ordinary life, silence in some instances may give consent.{4} But it would be going even farther beyond reason and common experience to maintain, as there are signs we may be by way of doing, that, in legislation, any more than in other affairs, silence or nonaction always is acquiescence equivalent to action.

There are vast differences between legislating by doing nothing and legislating by positive enactment, both in the processes by which the will of Congress is derived and stated{5} and in the clarity and certainty of the expression of its will.{6} And there are many reasons, other than to indicate approval of what the courts have done, why Congress may fail to take affirmative action to repudiate their misconstruction of its duly adopted laws. Among them may be the sheer pressure of other and more important business. See Moore v. Cleveland R. Co., 108 F.2d 656, 660. At times, political considerations may work to forbid taking corrective action. And, in such cases, as well as others, there may be a strong and proper tendency to trust to the courts to correct their own errors, see Girouard v. United States, supra, at 69, as they ought to do when experience has confirmed or demonstrated the errors’ existence.

The danger of imputing to Congress, as a result of its failure to take positive or affirmative action through normal legislative processes, ideas entertained by the Court concerning Congress’ will, is illustrated most dramatically perhaps by the vacillating and contradictory courses pursued in the long line of decisions imputing to "the silence of Congress" varied effects in commerce clause cases.{7} That danger may be and often is equally present in others. More often than not, the only safe assumption to make from Congress’ inaction is simply that Congress does not intend to act at all. Cf. United States v. American Trucking Assn., 310 U.S. 534, 550. At best, the contrary view can be only an inference, altogether lacking in the normal evidences of legislative intent and often subject to varying views of that intent.{8} In short, although recognizing that, by silence, Congress at times may be taken to acquiesce and thus approve, we should be very sure that, under all the circumstances of a given situation, it has done so before we so rule, and thus at once relieve ourselves from and shift to it the burden of correcting what we have done wrongly. The matter is particular, not general, notwithstanding earlier exceptional treatment and more recent tendency. Just as dubious legislative history is, at times, much overridden, so also is silence or inaction often mistaken for legislation.

I doubt very much that the silence of Congress in respect to these cases, notwithstanding their multiplication and the length of time during which the silence has endured, can be taken to be the equivalent of bills approving them introduced in both houses, referred to and considered by committees, discussed in debates, enacted by majorities in both places, and approved by the executive. I doubt, in other words, that, in view of all the relevant circumstances, including the unanticipated consequences of the legislation,{9} such majorities could have been mustered in approval of the Caminetti decision at any time since it was rendered. Nor is the contrary conclusion demonstrated by Congress’ refusal to take corrective action.{10}

The Caminetti case, however, has not been overruled, and has the force of law until a majority of this Court may concur in the view that this should be done and take action to that effect. This not having been done, I acquiesce in the Court’s decision.

1. Counsel has emphasized the religious aspect presented by these cases, and has stressed the familial aspect and purpose of so-called "celestial marriage" in the Mormon conception, as distinguishing the relation in fact and in consequence, from such as were involved in the Caminetti and other Mann Act cases. The argument from religious motivation has been foreclosed, so far as legislative power is concerned, since Reynolds v. United States, 98 U.S. 145. Apropos of the Mann Act’s application, the relationship is not only illegal under state law, but also as regular and continuous as that involved in Caminetti, or more so.

2. See e.g., Gebardi v. United States, 287 U.S. 112; United States v. Reginelli, 133 F.2d 595; Christian v. United States, 28 F.2d 114. Compare United States v. Beach, 324 U.S. 193; Mortensen v. United States, 322 U.S. 369.

3. See also the dissenting opinion of Mr. Justice Murphy herein. The dissenting opinion in the Caminetti case was joined by the Chief Justice and Mr. Justice Clarke. Only five justices adhered to the majority opinion, Mr. Justice McReynolds not participating. Cf. the opinion of Mr. Justice McKenna in Athanasaw v. United States, 227 U.S. 326.

4. As an original matter, in view of the specific and constitutional procedures required for the enactment of legislation, it would seem hardly justifiable to treat as having legislative effect any action or nonaction not taken in accordance with the prescribed procedures.

5. Seenote 4. Legislative intent derived from nonaction or "silence" lacks all the supporting evidences of legislation enacted pursuant to prescribed procedures, including reduction of bills to writing, committee reports, debates, and reduction to final written form, as well as voting records and executive approval. Necessarily also, the intent must be derived by a form of negative inference, a process lending itself to much guesswork.

6. Seenote 5.

7. See Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 424; Ribble, State and National Power Over Commerce (1937) c. X; Bikle, The Silence of Congress (1927) 41 Harv.L.Rev. 200; Powell, The Validity of State Legislation under the Webb-Kenyon Law (1917) 2 So.L.Rev. 112. An example of judicial interpretation of the silence of Congress as giving consent to state legislation is Wilson v. McNamee, 102 U.S. 572, 575.

8. Cf.note 5.

9. See opinion of Mr. Justice McKenna, 242 U.S. at 502, dissenting in Caminetti v. United States; see also the dissenting opinion in United States v. Beach, 324 U.S. 193, 199-200.

10. Since the Caminetti decision, two bills have been introduced to limit the effect of that case. S. 2438, 73d Cong., 2d Sess.; S. 101, 75th Cong., 1st Sess. Neither was reported out of committee. In such circumstances, the failure of Congress to amend the Act raises no presumption as to its intent. Order of Railway Conductors of America v. Swan, 152 F.2d 325, 329.