Judicial Modesty in the Wartime Context, Roosevelt v. Meyer (1863) DAWINDER S. SIDHU “The most important thing we do is not doing,” Justice Louis D. Brandeis noted ofthe Supreme Court.1 At the height of the Civil War, the Supreme Court in Roosevelt v. Meyer2 claimed that it could not review, and therefore let stand, a state court decision upholding the Legal Tender Act (“Act”),3 a critical wartime measure designed to stabilize the Union economy and fund the Union’s war efforts. In this essay, I suggest that this oftoverlooked case warrants the legal commun ity’s consideration because it implicates a question fundamental to our constitutional system: should the courts decline judicial review—or, “not do”—in order to facilitate government responses to wartime challenges? The Legal Tender Act In the process of establishing “one great, respectable, and flourishing empire,”4 the Framers anticipated the possibility that the United States would split into two distinct political bodies, and that this disunion would occur specifically along northern and southern lines.5 One generation later, the prospect of this North-South division was altogether real. In his March 4, 1861 inaugural address, Abraham Lincoln acknowledged that the common ties among the North and South were bending, but urged the people not to “break our bonds of affection.”6 During the seminal speech, President Lincoln pledged to keep the peace, provided that the North was not subject to Southern provocation or aggression. There shall be “no bloodshed or violence, and there shall be none,” he declared, “unless it be forced upon the national authority.”7 Soon thereafter, on April 12, 1861, confederates bombarded Fort Sumter, firing the opening salvo and thereby triggering the condition in President Lincoln’s inaugural. The “one great” nation was at war with itself. To sustain the war effort, the Union had to withstand wartime stresses on the econo my. “Wars have now become rather wars of the purse than of the sword,” observed Chief Justice Oliver Ellsworth as early as 1788.8 To ROOSEVELT v. MEYER AND JUDICIAL MODESTY 191 the extent that war poses both financial and existential threats to a nation, the Union’s initial financial situation was precarious and thus its ability to respond to the rebellion seriously compromised. On one side of the ledger, the Union’s wartime costs were growing at a rapid clip. On April 15, 1861, President Lincoln activated the militia, charging it with the awesome responsibility to “maintain the honor, the integrity, and the existence of our National Union[.]”9 President Lincoln made additional calls fortroops that year, leading to a dramatic expansion of the Union army from 16,402 soldiers on January 1, 1861 to 575,917 soldiers by the end of the year. These and other wartime preparations and necessaries were quite costly. Indeed, federal expendi tures ballooned from $63.1 million in 1860 to $474.8 million in 1862. By January of 1862, war costs approached $2 million per day. On the other side, federal revenues stagnated. For example, most federal revenue came from customs duties, and income from this source increased only slightly from $39.6 million in 1861 to $49.1 million in 1862. The federal income tax was not implemented until 1862,10 and the meager revenues from customs duties and other taxes could not even cover the interest on the federal debt.11 The federal government could not rest its wartime funding on borrowing because the federal government was considered a poor credit risk. Put simply by Charles Fairman, the “treasury was empty” and the “Government’s credit had been shattered.”12 The combination ofweak revenues and rising costs conspired to bloat the federal debt, which swelled from $75 million in 1861 to $505 million the following year. In response to this acute, unsustainable situation, the federal government was com pelled to experiment with various economic initiatives. Most notably, it introduced paper notes as currency. At the onset of the Civil War, regular exchange took place through the use of specie (z'.e., gold or silver coin, also called “hard money”) rather than paper money. In July of 1861, Congress authorized the Secretary of the Treasury, Salmon P. Chase, to issue...
Read full abstract