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When I was in a one room grade school in the Texas Panhandle, the teacher and our small textbook on "Government” told us that there were three branches of the government; executive, legislative and judicial, each independent of the control of the other and that their independence was protected by the constitution. Years later the members of the Law Faculty at the University of Chicago told us much the same thing, but one instructor after relating a decision of the Supreme Court added, "and there is no appeal from that Court on this earth." We, of course, knew that. We did not look at as a warning of things to come, as we might have done. For many years what the teachers had told us about the independence of the three separate branches of the government remained substantially correct.

The constitution says nothing about any such warning. The requirement of the warning was an enactment of a constitutional amendment by the five man maj'rity of the Court. The requirement that he would be furnished a lawyer at the expense of the state during the investigation proceedings if he is unable to pay one was also an enactment of new law by the five men.

The Supreme Court had always had the power to decide first whether they had jurisdiction and then to decide the issues as they wished; and their decision was final-no appeal on this earth. Prior to and during my law school days, they in general exercised judicial restraint. They quite well stayed within the guidelines of prior decisions of their own Court, gave reasonable consideration to decisions of other courts, respected the rule that powers not granted to the Federal government were reserved to the state, ruled business to be interstate commerce only when it was moving interstate, gave reasonable credence to state-court judgments, did not unwarrantably free state-convicted criminals, deferred generally to state court interpretation of their own laws and constitutions and followed other time tested rules.

Justice Cardozo said :

"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life.” Wide enough in all conscience is the field of discretion that remains." (hief Justice Charles Evan Hughes said:

We do not write on a blank sheet. The Court has its jurisprudence, the helpful repository of the deliberate and expressed convictions of generations of sincere minds addressing themselves to exposition and decision, not with the freedom of casual critics or even of studious commentators, but under the pressure and within the limits of definite official responsibility.”

These statements gave evidence of rules which the Supreme Court accepted as guidelines. Some relaxation of these limitations became evident after Franklin D. Roosevelt appointed several members of the Court. Then after the death of Chief Justice Vinson in 1953 the Court rapidly lost sight of those guiding principles.

In 1966 came the notorious Miranda Decision (Viranda vs. Arizona16 L. Ed. (2) 694), a 5 to 4 decision. Chief Justice Warren wrote the opinion for the 5. He pronounced the rule that any person held for interrogation by officers must be warned in advance clearly and in unequivocal terms that he has a right to remain silent, that anything he said might be used against him and that he has a right to an attorney before answering. Without this prior warning the confession could not be used in evidence.

Though the case is known by but one title, there were, in fact, four cases inrolved from four different states. All four were reversed.

The decision was opposed by the four states involved in the four cases, by 27 other states which joined to support the four states involved, and by the United States. On the other hand, no one supported the decision as rendered except, of course, the convicted men.

Justice White, dissenting, stated that, "This Court, as every member knows, has left standing literally thousands of criminal convictions"-based at least in part upon such confessions.

Justice Harlan, dissenting, stated that, "The Court had jumped the rails."

That the Court knew it had jumped the rails--enacted new law, soon became erident, In the very next case of the kind coming before the Court, Johnson vs.

New Jersey. 16 L. Ed. (2) 882, the Court announced that it would give the decision in the Miranda case only prospective effect and not retroactive effect. If the decision stated the law on the day it was announced, it stated the law of the day before, one year before and ten years before. Logically it should have been applied to every prior conviction.

So as appears, the country school teacher, the grade school textbook on "Gorernment” and the law school faculty are no longer correct. The Judicial branch has taken over the Legislative field. The Miranda case is just one of many where the Court "jumped the rails.”

Qualifying Jurors for the Death Penalty In 1968 in Witherspoon vs. Illinois, 20 L. Ed. (2) 776, in a 6 to 3 opinion the Court held that the practice followed previously for more than 100 years of “Qualifying jurors for the death penalty" by asking whether they were constitutionally opposed to it was all wrong and in violation of the constitution. The question was in substance merely asking them whether they would be willing to return a verdict under the existing law. As long as the state must accept jurors constitutionally opposed to a death penalty, there will be no such verdicts. Since then no person has been legally executed.


In 1937 in Breedlove vs. Suttles, 82 L. Ed. 252, the Court with Charles Evans Hughes as Chief Justice has unanimously sustained the poll tax as valid. In 1966 in Harper vs. Virginia, 16 L. Ed. (2) 169 in a 6 to 3 decision written by Justice Douglas, they decided exactly to the contrary and ruled the poll tax unconstitutional.


In 1962 in Engle vs. Vitale, 8 L. Ed. (2) 601, the Court outlawed the practice of daily prayer in school although the prayer was undenominational and its participation on the part of the students was voluntary.


In 1964 the Court, in School District of Abington, Twp. vs. Schempp, 10 L. Ed. (2) 844 held that the reading without comment of verses from the Bible and the recitation of the Lord's Prayer by the students in unison was in violation of the constitution.


In 1966 in Elfbrandt vs. Russell, 16 L. Ed. (2) 321, the Supreme Court reversed the Supreme Court of Arizona and held that Arizona could not discharge an employee who refused to take an oath which stated in net effect that he was not a Communist. Whatever Communist Arizona had in its employ Arizona was required to keep. This was a 5 to 4 decision with Justice Douglas writing the opinion.

WELFARE WITHOUT DELAY In 1969 the Court, in Shapiro vs. Thompson, 22 L. Ed. (2) 600, held that wel. fare was a constitutional right and with bland disregard for the practical consequence of its edict held that the denial of welfare payments to newly migrated welfare seekers pending a period of residence was a denial of "equal protection of the law."

These and other decisions make it most evident that the majority of the Court during those years took jurisdiction of whatever they wanted to take and ruled whatever they wanted to rule. They exercised no judicial restraint. They did not allow themselves to be restricted by the lack of basis in the statutes or in the constitution nor by earlier decisions of their own Court.

It is said that Queen Victoria when Prince Albert died bewailed, “Now there is no one to tell me 'No'.” There was and is no one to tell the majority of the Court "No." So they did as they pleased. The people might object, the Congress might object, the executive might object but object was all they could do. No one could change it. It stood with the same binding effect as if it were well grounded in the statutes and constitution and in all prior decisions. When Justice White told the others that "as every member of the Court knows” the Miranda decision is contrary to thousands of earlier decisions, it did not change the result. The 5 to 4 Miranda decision written by Chief Justice Warren became the law-and it still is.

It is, of course, essential that some court have final authority. There must be a final answer to every dispute. It is not, however, necessary that judges with that awesome power have it for life. There should be some method of terminating the authority of those who choose to rule according to their own whims and prejudices rather than according to established law.

We are supposed to have a government of law and not a government of men.

With no available grounds for removal except bad conduct and no procedure for that available except the completely impractical procedure of impeachment, there is no remedy at all.

The legislative branch and to an extent executive branch of the government are not independent but are subject to the control of the judicial branch. I think most of us would agree with the nominee to the Supreme Court who said that the Court should not be a "continuous constitutional convention.”

Federal Judges appointed for life and with a most liberal life time pension have complete independence, are responsible to no one. In the words of Thomas Jefferson they have a "freehold of irresponsibility.” Some men can stand that kind of independent security, respected position of authority and power. Some cannot. Like prosperity, some people cannot stand it.

Senator BYRD. Mr. J. Sloan Kuykendall, an outstanding member of the Virginia Bar, and hoped to be here today. He is a past president of the Virginia Bar Association, and he is now chairman of the State board of bar examiners, and that committee has met for the last 2 days and hoped to conclude its business but has not been able to do so; so, he is unable to be here today.

But I understand the committee has his statement.

Senator Bayh. We will put his statement in the record, and we regret that he could not be here.

[The prepared statement submitted by Mr. Kuykendall follows:]


Mr. Kuykendall is a senior partner in the firm of Kuykendall, Hall and Whiting in Winchester, Virginia.

A graduate of the University of Virginia Law School, Mr. Kuykendall was admitted to the Virginia Bar in 1931.

He is a member of the American Bar Association, the American Law Institute, the American Judicature Society, the American Bar Foundation, and is a Fellow in the American College of Trial Lawyers.

He served as Commonwealth Attorney for Frederick County from 1942 to 1947.
In 1957–58 he was President of the Virginia State Bar.
At present he is President of the Virginia Board of Bar Examiners.
Mr. Chairman, and distinguished members of the subcommittee:

Responding to the request of Senator Byrd, I state my views regarding Senate Joint Resolution 106 respecting tenure for Federal Judges.

The amendment to the Constitution proposed by Senator Byrd focuses attention once more on the role of the judiciary in our democratic form of government. Ti'hen the Constitution, as drafted by the Convention of 1787, was submitted to the Thirteen States for ratification, the provision for life tepure for Federal Judges came into question. Alexander Hamilton dealt with this question in the Federalist Papers. In Paper No. 78, Mr. Hamilton justified tenure for judges during good behavior by the argument that the Judicial Branch of the Government was the weakest of the three coordinate branches, and he observed :

"From the natural feebleness of the judiciary, it continual jeopardy of being overpowered, awed, or influenced by its coordinate branches . He further observed :

"To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them ..." He reasoned, therefore, that courts were impotent to enforce upon the people and the coordinate branches of Government a will of the courts that may prove to be

at variance with the rights and demands of the States and the people, and with the views and commitments of the Executive and Legislative Branches. He insisted that independence of the judiciary can be assured only by providing life tenure for judges during good behavior. The provision for tenure during good behavior was placed in the Constitution, and ratification was effected, before the courts had had an opportunity to function and before it could be determined exactly to what extent the courts would extend their jurisdiction and would enforce their decisions and decrees. Further, the scope and nature of judicial review respecting constitutionality of congressional enactments or executive action was not part of the colonial experience, nor did the courts of England exercise the ultimate judgment as to the validity of acts in question.

Since Hamilton's day, the scope of judicial review and the power and authority of the courts have developed and increased to a point not envisioned by the framers of the Constitution and the advocates of life tenure. It is, therefore, proper at this time to seriously reconsider the tenure provision of the Constitution to determine whether the considerations that prompted the inclusion of this provision in the Constitution as originaly drafted are valid and compelling at this time.

Since the founding of the Republic, the scope and nature of judicial review, as exercised by Federal Courts, has been greatly enlarged. Not only has the number of litigated cases increased over the years, but our history has witnessed the adoption of twenty-six amendments to the original Constitution. The Four. teenth Amendment, with its equal protection and due process clauses, has provided a broad avenue for judicial opinions, some of which have not, I believe, adhered to the spirit or letter of the Constitution or the principle of stare decisis.

The interpretation and application of the broad and general language of the commerce clause (Article I, Section 8) and the equal protection and due process clauses (Fourteenth Amendment) call for the utmost in judicial restraint in order to avoid trespass upon the legislative and executive powers and functions, and the established jurisdiction of the States and the rights of the people. The power of the judiciary is unlimited except in the exercise of judicial restraint. Some judges have exercised a very high degree of restraint, whereas other judges have envisioned a broad and expansive role for the courts.

Alert and ingenious minds have used appropriate language to attain a desired judicial result while purporting to be merely interpreting the Constitution. Today, Congress, the President, and the People can be made subject to the will of the judicial mind under the guise of constitutional interpretation. It is, therefore, in order for the Senate to consider a longer range and continuing check on the exercise of judicial power.

When the intent of the Constitution is clearly expressed, one can judge whether a decision of the court is within the meaning of the Constitution. However, when a court deals with the general language of the commerce, due process and equal protection clauses, which afford no inherent standards that limit their application, the courts may in cases of first impression, determine whether a legislative act, executive directive, or non-governmental act falls within the purview and influence of those clauses. However, once there has been a judicial pronouncement of the highest court respecting a given set of facts calling for the application of either one or all of those general constitutional provisions, then there is judicial precedent that should be followed. It is in cases where judges depart from the express language of the Constitution and controlling precedent that a judge may be readily said to have violated the obvious restraints upon him.

In areas where the general language of the Constitution is susceptible to varied interpretations, the judicial function is put to its most difficult test. The ultimate check on the judiciary is the self-imposed restraint of the judges in an effort to avoid the imposition of their will rather than adhering to the Constitution or precedent. This is a high and serious responsibility. It is submitted that the exercise of this unique and delicate function, that of constitutional interpretation, is a continuing one and ought then to be subject to some control.

It is, therefore, submitted that it is proper that the Senate should have the duty to review the continuing performance of those clothed with judicial power. It is taken as fundamental that the people themselves are the ultimate repository of power in this Republic. The Senate is properly constituted and qualified to pass upon the continuing fitness of those whose occupy the bench. The proposed reconfirmation by the Senate constitutes a moderate check upon the life tenure of a judge who now enjoys the last vestiges of an unrestrained arm of government. This procedure, which comes into play once in eight years, serves to add symmetry and a degree of responsibility to each of the co-equal and coordinate branches of government. The proposed amendment assures that the judiciary, as is true of all other branches of the Federal Government, is subject to review and are answerable to the governed through their representatives.

There are those individuals, who in good faith but mistakenly, exhort the courts to engage in new and bold enterprises of judicial activism. They see the Supreme Court and the lower Federal Courts as having a duty to rescue this nation from the supposed failures of the other branches of government; and further envision the courts as a special guardian for defining and operating the political processes in America. What is more disturbing is the plea for the judiciary to strike out boldly in identifying ideals and setting public policy they deem appropriate, and commanding public officials to begin the pursuit of those ideals, as formulated and characterized by the judiciary.

This open appeal to judges to rewrite the Constitution in their own image flies in the face of the best traditions of Anglo-American jurisprudence. That everpresent temptation to substitute one's own will for that which the Constitution plainly or by necessary implication directs or prohibits is one of the continuing and pervasive problems of our constitutional form of government. But the unarticulated or perhaps patent recognition that judges do and will make law jeopardizes the concept of the rule of law and the role of the judiciary as a dispassionate referee, and it undermines the restraints which the Constitution should place on all citizens, even the judiciary.

From the vantage point of this observer, the seductive sirens of aggressive judicial activism nullify the famous phrases of Mr. Chief Justice Marshall in McCulloch v. Maryland (1819), “It is the Constitution we are expounding. ..." It is further submitted that the judges or justices of the Federal system are not ordained with any monopoly of a “finer vision" of what the best means for achieving a particular social goal may be in the absence of constitutional direction or mandate.

If it be admitted that the courts have effectively abandoned the precepts of faithful constitutional construction, judicial self-restraint, and adherence to precedent, there is no reason why they should not be subject to some restraint also. There is no reason why admittedly policy conscious judgments should not be subject to some further scrutiny by the duly elected representatives of the people. If it be further admitted that the abstract policy decisions are an encroachment on the functions of Legislative and Executive Branches, a constitutional amendment making the judiciary's behavior responsible to the Senate is the only reasonable, moderate and controlled mode of assuring that Federal Judges or justices remain servants of the people rather than public rulers.

Some of the most searching and scathing criticisms of the failure of the judges or justices to exercise self-restraint and avoid the temptation to substitute their own will for judgment has been made by their brethren of the bench. One of the most famous of all dissents in Supreme Court history is that of Mr. Justice Holmes in Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L.Ed. 937 (1905).

In that case, the majority of the court held invalid a New York statute which prohibited employees of bakeries from working more than sixty hours in any one week. The court held that the statute was an impermissible exercise of the police power and that no reasonable foundation existed for upholding the legislation on the grounds of health of the workers. The majority embraced the concept of "liberty of contract”. That majority reasoned that under the circumstances the "freedom of master and employee to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution." In his succinct and eloquent dissent, '

Mr. Justice Holmes condemned the court for writing into the Constitution the theory of laissez faire economics under the guise of constitutional interpretation. Justice Holmes went on to say:

The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics. Some of these laws (limiting or regulating hours or working conditions) embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

General propositions do not decide concrete cases. The decision will depend on


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