the said Court shall concur in pronouncing such part of the said Constitution or Act to be invalid, it shall not be held or deemed invalid." (4) 18th Cong., 2d Sess., Jan. 26, 1825, by Robert P. Letcher of Kentucky in the House-concurrence of 5 [out of 7] Judges in any case "in which shall be drawn in question the validity of any part of the Constitution of a State or of any Act passed by the Legislature of a State." Judges to be "required by law to give their opinions with their respective reasons, therefor, separately and distinctly." (5) 19th Cong., 1st Sess., Daniel Webster said in the House, Jan., 25, 1826, that at the last session, several propositions were brought forward by Charles A. Wickliffe of Kentucky, "among which was one requiring a certain definite majority when the Supreme Court passed a sentence which went to invalidate any law enacted by one of the States of the Union." (6) 19th Cong., 1st Sess., April 7, 1826, by John Rowan of Kentucky, in the Senate: "that the Supreme Court shall in no instance decide that the Constitution of any State or any provision thereof or the law of any State, or any Act of Congress, or any part or portion thereof, or of either of any of them is invalid or void by reason of any supposed collision between them or any part or portion of them, or any or either of them, and the Constitution of the United States or any article, section or clause thereof, unless at least 7 [out of 10] of the Justices of said Court shall concur in that decision." (7) 19th Cong., 2d Sess., Jan. 22, 1827, by Charles A. Wickliffe of Kentucky, in the House - concurrence of 5 [out of the 7] Judges, "in all cases in which is drawn in question the validity of any law of a State." (8) 20th Cong., 2d Sess., by P. P. Barbour in the House requiring concurrence of 5 [out of 7] Judges in cases 1 involving the validity of a State law. See also (9) 40th Cong., 2d Sess., pp. 478 et seq., by Thomas James F. Wilson of Iowa moved an amendment that if any Circuit Court or District Court of the United States should declare an Act of Congress invalid, its judgment should be reversed unless two thirds of all the members of the Supreme Court should concur in affirming the judgment. In addition to these proposals, John Forsyth of Georgia, in the Senate, Jan. 5, 25, 1826 (19th Cong., 1st Sess.), proposed that "no final judgment shall be pronounced affecting the rights, liberty or life of any citizen of the United States by less than a majority of the entire number of Justices including the Chief Justice." T. P. Moore and Charles A. Wickliffe of Kentucky, in the House, Jan. 25, 1826 (19th Cong., 1st Sess.), proposed bills requiring similar concurrence of a majority of the Court (i.e., 6 Judges out of 10) in any case "in which shall be drawn in question the validity of any Act of Congress or treaty of the United States, of any part of the Constitution of a State, or of an Act passed by the Legislature of a State." Full details as to these various proposals will be found in the author's The Supreme Court in United States History (1922), II, Chapters 17 and 30. CHAPTER SEVEN LABOR AND THE SUPREME COURT "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Justice of the Supreme Court of the United States, according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States: So help me God." (Form of oath taken by each Justice of the Court, in accordance with the provisions of the Federal Judicial Code, section 257.) "An enlightened and independent Judiciary is the safeguard of the poor against the tyranny of the rich; it is the safeguard of the citizen against the tyranny of his Government. . . . Our Judiciary is the sheet-anchor of safety against popular fury, or the more destructive though less violent attacks of usurpation." JOHN G. JACKSON of Virginia, in the House, Jan. 31, 1805. 8th Cong., 2d Sess. The representatives of organized Labor have been particularly active in opposition to the Supreme Court's power to pass upon the validity of Acts of Congress.1 The Court has been frequently denounced by them as prejudiced against Labor in its decisions. And either through misapprehension of the purport of those decisions, or through lack of knowledge as to the facts, the impression has been given to Labor that the proposal for a Constitutional Amendment made by the late Senator La Follette would relieve Labor from decisions obnoxious to it whereas the truth is that special Labor interests were con 1 See Reports of Proceedings of the 42d and 43d Annual Conventions of the American Federation of Labor (1922) (1923); articles by John Ford, Samuel Gompers, Meyer London, in American Federationist (April, May, 1923) XXX. 222 cerned in very few of the cases in which Acts of Congress have been held invalid. There exists so much misunderstanding as to what the Supreme Court has actually decided in Labor cases that it is highly desirable that a complete statement should be made. What are the actual facts as to the Court's record in, cases specifically involving Labor? The Court has decided about one hundred of such cases. Of these, not more than twenty were decided in a manner which Labor might term adverse to its supposed interests. But of these twenty, it should be particularly noted that only six involved the constitutionality of an Act of Congress. Of the others, six involved questions of statutory construction under the Sherman and Clayton and other Federal Laws; two involved no question of statute, State or Federal, but simply decided questions of general law; six involved the constitutionality of a State statute. First, let Labor note that, so far as regards the six decisions construing the Sherman and Clayton or other Acts and the two merely deciding questions of general law, Congress may at any time, by appropriate legislation, alter the law as laid down by the Court. Labor should, therefore, direct its efforts towards Congress, rather than on the Court; for whenever Labor can persuade Congress that these eight decisions were wrong, Labor has it in its own control to change them. No Amendment to the Constitution taking away the power of the Court is necessary; and no such Amendment would have the slightest effect upon the power of the Court to render these decisions. |