James Coolidge Carter

CARTER, JAMES COOLIDGE

James Coolidge Carter was a lawyer and leading legal scholar and philosopher of the late nineteenth century.

Born into a poor family on October 14, 1827, in Lancaster, Massachusetts, Carter
attended Derby Academy in Hingham, Massachusetts. In 1846 he entered Harvard College. An outstanding student, he graduated fourth in his class in 1850. He then moved to New York City to work as a private tutor and to study law.
He returned to Cambridge a year later and
enrolled in what was then known as the Dane
Law School at Harvard, graduating in 1853.
Carter was then admitted to the New York state
bar and clerked briefly before founding the firm
of Scudder and Carter. He remained associated
with the firm for the next fifty-two years.
Carter quickly emerged as a highly skilled
and sought-after lawyer. He also became a
prominent leader of the New York bar, helping
to form the Association of the Bar of the City of
New York and serving as the association’s presi-
dent for five terms. He had a strong interest in
municipal reform and in 1875 he was appointed
by the governor to a commission charged with
devising a plan of government for the cities of
New York State. He also helped found the
National Municipal League and was its president
for nine years. Later in his career Carter achieved
national prominence as president of the AMERI-
CAN BAR ASSOCIATION from 1894 to 1895 and
for his appearance as counsel for the United States before the Bering Sea Fur-Seal Tribunal of Arbitration in 1893. Carter’s opening argument
before the tribunal in Paris reportedly lasted
seven days.
In addition to his involvement in municipal
affairs, Carter devoted his energies to organizing
opposition to a proposed civil code for the state
of New York. Carter had long been an opponent
of the code of procedure, which had been part of
the law since 1846, calling it an embarrassment
to the practicing bar. In 1883, he authored The
Proposed Codification of Our Common Law, a
widely distributed pamphlet outlining his views,
which was influential in the code’s eventual
defeat in the state legislature. Carter believed
that any scheme to reduce the law to statutes was
fundamentally unsound and simply could not
be carried out. Even if it could be accomplished,
he argued, CODIFICATION was undesirable
because “[l]aw is not a command or body of
commands, but consists of rules springing from
the social standard of justice or from the habits
and customs from which that standard has itself
been derived.” He went on to write and speak
extensively on the issue of codification throughout
his life and his lectures were published after
his death as Law: Its Origin, Growth, and Function
(1907).
Carter strongly believed in restraints on legislative
powers and he applied his legal philosophy
to important cases he argued before the U.S.
Supreme Court. In In re Dupre, 143 U.S. 110, 12
S. Ct. 374, 36 L. Ed. 93 (1891), Carter argued that
Congress lacked the authority to prohibit as
criminal the use of the mails for the circulation
of lottery tickets.According to Carter, the federal
government could use the powers granted to it
by the Constitution for only limited purposes,
and to exceed such limits through the law in
question usurped the powers reserved to the
states under the TENTH AMENDMENT. Carter’s
doctrine of “limited powers” would be used by
other lawyers and scholars to restrict congressional
control over interstate commerce and
taxes.
Carter again argued for a limited government
role in Smyth v. Ames, 169 U.S. 466, 18 S.
Ct. 418, 42 L. Ed. 819 (1898), in which the U.S.
Supreme Court considered whether Nebraska
could force its railroads to lower their shipping
rates in an attempt to ease economic conditions
for farmers. Carter, one of several prominent
lawyers representing the railroads, maintained
that the shipping charges should be determined
not by the state but by “laissez-faire” economics
and free competition, which would prevent the
imposition of high rates. The Court struck
down the law at issue as unconstitutional, but
also set guidelines for rate regulation by the
states so that future court challenges could be
avoided.
Carter created somewhat of a stir among his
fellow legal scholars when, in what initially
appeared to be a drastic departure from his
usual views, he joined a team of other prominent
lawyers to defend the constitutionality of
an INCOME TAX before the U.S. Supreme Court
in POLLOCK V. FARMERS’ LOAN & TRUST CO., 158
U.S. 601, 15 S. Ct. 912, 39 L. Ed. 1108 (1895).
Carter argued that the legislature’s action in
passing the tax must be given due weight and
should not be subject to review by a judicial tribunal.
Just as government should play a limited
role, he contended, the courts’ role should be
likewise restricted. He argued that the courts
should refrain from engaging in “judicial lawmaking”
and said, “nothing could be more
unwise and dangerous—nothing more foreign
to the spirit of the Constitution—than an
attempt to baffle and defeat a popular determination
by a judgment in a lawsuit . . . the only
path to safety is to accept the voice of the majority
as final.” The Supreme Court went on to
strike down the general income tax enacted by
Congress and held that taxes on income derived
from real estate and PERSONAL PROPERTY
constituted direct taxes and thus must be apportioned
among the states according to population.
The decision was effectively negated by the
adoption and ratification in 1913 of the SIXTEENTH
AMENDMENT, which exempted income
taxes from the Constitution’s APPORTIONMENT
requirement, but Pollock was nevertheless long
remembered because of the fervor with which it
was argued by Carter and the other attorneys
involved.
After his retirement from the PRACTICE OF
LAW, Carter devoted his time to writing and
studying and remained a popular lecturer until
his death in 1905 at the age of seventy-eight.
FURTHER READINGS
Congressional Quarterly. 1989. Guide to the U.S. Supreme
Court. 2d ed. Washington, D.C.: Congressional Quarterly.
Elliott, Stephen P., ed. 1986. A Reference Guide to the United
States Supreme Court. New York: Facts on File.
Grossman, Lewis A. 2002. “James Coolidge Carter and Mugwump
Jurisprudence.” Law and History Review (fall): 20
577–629.
Johnson, John W., ed. 1992. Historic U.S. Court Cases,
1690–1990. New York: Garland.