January 25, 1982 EXTENSIONS OF REMARKS 93 EXTENSIONS OF REMARKS STATE OF THE JUDICIARY al government and without addressing the and [state] prisons." They refuse to recog­ constitutional legitimacy of its claim. nize the ultimate questions: Shall judges be I will use the word subjectivism many restricted to the exercise of those powers HON. ROBERT A. YOUNG times today. As I use the word, the doctrine which derive "from the consent of the gov­ OF MISSOURI of subjectivism would legitimate the use by erned"? IN THE HOUSE OF REPRESENTATIVES a judge of his individual feeling as the In 1905, the United States Supreme Court, standard by which he would decide constitu­ in Lochner v. New York, struck down a state Monday, January 25, 1982 tional questions. I hope my distate for sub­ statute which provided that no employees jectivism will be evident by the time I should be required or permitted to work in e Mr. YOUNG of Missouri. Mr. finish. Speaker, I would like to take this op­ Today, as perhaps never before, there is bakeries more than sixty hours in a week, or portunity to share with my colleagues ten hours a day, holding that such statute great public concern about the impact of was an unreasonable, unnecessary and arbi­ the state of the judiciary address re­ "government" on our lives. We are in the trary interference with the right of an indi­ cently delivered by Chief Justice midst of a period when even the President vidual to contract. Mr. Justice Holmes had Robert T. Donnelly of the Missouri of the United States speaks out at every op­ the following to say in dissent: Supreme Court before the 81st Mis­ portunity against too much government in Washington. I do not intend to influence It is settled by various decisions of this souri General Assembly gathered in you one way or another on that question. court that state constitutions and state laws joint session on January 7, 1982. Mr. The point I would hope to make is that the may regulate life in many ways which we as Speaker, I am particularly pleased to essence of the relationship between our legislators might think as injudicious or if recognize Chief Justice Donnelly be­ people and their government is that the you like as tyrannical as this, and which cause of his long and distinguished people, not the government, are sovereign. equally with this interfere with the liberty career of public service. Robert True Officials of government can rightfully exer­ to contract, • • •. Some of these laws cise only such powers as the people freely embody convictions or prejudices which Donnelly is a native of Lebanon, Mo. judges are likely to share. Some may not. He served in the infantry in World give them. Their assertions of power are of no legal or conceptual validity if made with­ But a constitution is not intended to War 11. After the war he attended the out the consent of the people. embody a particular economic theory. University of Missouri where he re­ How does this impact on the state judici­ whether of paternalism and the organic re­ ceived his law degree. He was admitted ary of Missouri? lation of the citizen to the State of laissez to the Missouri bar on December 10, In 1965, when I first became a judge of faire. It is made for people of fundamentally 1949. He was appointed to the Su­ the Supreme Court of Missouri, I swore that differing views, and the accident of our find­ preme Court of Missouri in 1965, and I would support the Constitution of the ing certain opinions natural and familiar or has served in that capacity ever since. United States. In so doing, did I also bind novel and even shocking ought not to con­ myself to follow the latest pronouncement clude our judgment upon the question He has also served as a member of the made by a majority of the justices of the whether statutes embodying them conflict board of governors of the Missouri bar United States Supreme Court on a given with the Constitution of the United States." and as deputy chairman at the Confer­ question as if such pronouncement equates In a period of several years before and ence of Chief Justices. with the express language of the United after the decision in Lochner, the United In his address, Mr. Chief Justice States Constitution? States Supreme Court, under the mantle of Donnelly makes a strong case for judi­ Article VI of the · United States Constitu­ "substantive due process," rather routinely cial restraint. This is a position he has tion provides in part: struck down state legislative enactments. articulated time and time again in his "This Constitution, and the Laws of the This period has come to be known as the United States which shall be made in Pursu­ Lochner Era, and was referred to in the case work on the Missouri Supreme Court. ance thereof; and all Treaties made, or of Ferguson v. Skrupa, as follows: In the present atmosphere of judicial which shall be made, under the Authority "The doctrine that prevailed in Lochner, expansionism, he offers a note of clar­ of the United States, shall be the supreme • • • and like cases-that due process au­ ity and principle. He gives an eloquent Law of the Land; and the Judges in every thorizes courts to hold laws unconstitution­ vision of the role of the judicial State shall be bound thereby. any Thing in al when they believe the legislature has branch of Government and the future the Constitution or Laws of the State to the acted unwisely-has long since been discard­ of our country and I insert his address Contrary notwithstanding." ed. We have returned to the original consti­ Of course, if a case ruled upon by the Su­ tutional proposition that courts do not sub­ to be printed in the CONGRESSIONAL preme Court of Missouri is reviewed and RECORD and be made a part of the stitute their social and economic beliefs for ruled upon by the United States Supreme the judgment of legislative bodies, who are RECORD thereof: Court, the latter ruling is "the law of the elected to pass laws." case" and must be followed. THE STATE OF THE JUDICIARY IN MISSOURI- However, if a case ruled upon by the Su­ Of course, the Ferguson, prognosis were 1982 preme Court of Illinois is reviewed by the erroneous. The books are bulging with Your Excellency, Mr. President, Mr. United States Supreme Court and an opin­ Lochnerian "substitutions." Mention of a Speaker, Members of the 81st General As­ ion is handed down by the United States Su­ few will suffice. sembly, Ladies and Gentlemen: I perceive preme Court, is that opinion "the supreme In April1969, in Shapiro v. Thompson, the the coming period of our nation's history as Law of the Land" and, therefore, binding on Court struck down state statutes requiring one which will sorely test the strength and me in Missouri when I am confronted with a one year's residence prior to receiving wel­ integrity of our system of government, and I similar situation? Are decisions of the fare benefits, holding that because this re­ am impelled to speak of my concern. As was United States Supreme Court "the supreme quirement impinged on the "constitutional­ eloquently said in different context, my Law of the Land" prescribed in Article VI of ly guaranteed right of interstate travel," it effort "may be a quixotic tilt at windmills the United States Constitution? was to be judged by the standard of wheth­ which belittles great principles of liberty. For many years members of the federal er it promoted a compelling state interest. Only time can tell." However, I must say to judiciary have injected federal control into In January 1973, in Roe v. Wade, the you what I believe. Of course, it must also almost every facet of the lives of our citi­ Court struck down a Texas abortion statute, be said that the views I express are not nec­ zens. Although bound, by oath or affirma­ holding that the statute infringed on a preg­ essarily shared by the other judges of the tion, to support all of the Constitution of nant woman's right of privacy, in the opin­ Supreme Court of Missouri. the United States, they have excised the ion of the Court could not be justified by a My area of concern, of course, is the state tenth original amendment. Their arroga­ compelling state interest, and, therefore, judiciary in Missouri. I regret that I cannot tions are a matter of record. They boast of violated the due process clause. The Court speak honestly of the condition of the state routinely engaging in "bureaucratic and ad­ then proceeded to declare, by trimesters of judiciary without openly discussing the turf ministrative functions, such as overseeing pregnancy, the interests of a state which now occupied by the judiciary of our nation- [state] schools, [state] mental hospitals, the Court considers "compelling." e This "bullet" symbol identifies statements or insertions which are not spoken by the Member on the floor. 94 EXTENSIONS OF REMARKS January 25, 1982 The problem posed is that the compelling How could this have happened in America? In the debates with Senator Douglas in state interest standard requires a judicial If you are curious, you can find the answer 1858, Abraham Lincoln repeatedly stated evaluation which is subjective in nature and in Eric Hoffer's "The True Believer." his distaste for the Dred Scott decision and which requires that a judge decide whether In my view, the Constitution of the his refusal to follow it.