POWER OF THE SUPREME COURT TO DECLARE ACTS OF CONGRESS UNCONSTITUTIONAL.

Address of Hon. C. B. Stuart, of Oklahoma City, Okla., to the Legislature of Oklahoma, in joint session, January 23, 1917.

By Senator C. W. Board: Gentlemen of the joint assembly of the House and Senate of Oklahoma: By a resolution we have invited one of Oklahoma's distinguished men to address us to-day on a very live issue. I yield further remarks to the speaker of the house of representatives, Mr. Nesbitt.

By Mr. Nesbitt: Mr. President and gentlemen of the joint session, ladies and gentlemen: It is a pleasure to stand here to-day and present to you one of the ablest men in all the great Southwest, who will discuss an issue that is now before the people, not only of this State, but is becoming an issue all over the United States. Without further remarks, I have the pleasure of introducing to you Judge C. B. Stuart, of Oklahoma City. [Applause).]

By Hon. C. B. Stuart: Mr. President and gentlemen of the Legislature of Oklahoma: When I received your invitation to address you on a subject which, in my judgment, is of vast importance to the people of Oklahoma, I felt that I had received the most distinguished honor that had come to me during a long professional life; because I am called upon as a private citizen to speak my views to this body on this subject. I am not unmindful of the obligation that I owe you and the obligation I owe to the people of Oklahoma in what I shall say. I am going to speak to you gravely. I am going to speak to you carefully. I am not going to make an assertion, historical, political, or legal that I will not vouch for and sustain by authority. [Applause.]

The question as to whether the Supreme Court of the United States should have the power to declare an act of Congress unconstitutional was much debated in the early life of this Republic. There were some, and among them Mr. Jefferson, the great apostle of democracy, who thought that the judges ought not to be clothed with that power. In order to understand, my friends, just what this thing means, it is necessary for us to advert a little to the history of the time and the environments of the men who framed the constitution of 1787-88. The Confederacy, as it was called, had proved to be a dismal failure. It was spoken of as a rope of sand. The National Government was so weak that it could not raise funds to pay its officers; no taxes could be levied. It could not exercise the power of interstate commerce; and the States, jealous of their sovereignty, in the very beginning negatived and set aside time and time again specific and solemn acts of Congress. It was learned and soon known that it was impossible for that state of things to continue and the Government to be preserved. So it became necessary to call a convention for the purpose, named in the call, of revising the Articles of Confederation. When the convention of 1787 met there was no intention at that time to substitute a new and independent form of government in place of the Confederacy then existing. Mr. Madison, the deepest student of the Constitution we have ever had on this soil, was constantly writing to Mr. Jefferson, in France, to send him books, the

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latest works on government. He had examined every republic that had existed in the history of the world, and Mr. Madison had reached the conclusion that this Government could not exist and could not perform its functions as they ought to be performed unless the National Government was strengthened. It became necessary to give more power to the Federal Government; it became necessary to make it impossible for the States to turn down the laws of Congress; it became necessary to make the departments of government separate and distinct; and it became necessary, above all other things, to put limitations upon each department.

Now, my friends, let us stop a minute, because this is a grave question. If this is not the forerunner of a revolution, I have read my country's history wrong. [Applause.] Listen! What is a constitution? Think for a moment. A constitution ordinarily is simply a fundamental law, written, stating certain fundamental principles and certain fundamental rights. But the Constitution of the United States goes further. The Constitution of the United States is not only a compact between the States and the Federal Government, but it is the supreme law of the land. [Applause.]

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Now mark that. For the first time in the history of the world the attempt was made to create a government by the people and of the people, which through its fundamental law should put a limitation upon the people themselves. The great weakness of the republics of old had been that the people had not restrained themIt became necessary by the limitation of a written stitution not only to hold in check the executive department, not only to hold in check the legislative department, but to hold in check the people themselves, who created the Constitution. As Chief Justice Fuller said in his address to a law class: "It is the first time that the people" the people "created a government and put self-imposed restraint upon themselves." themselves." Why did they do it? Think of it a moment. Why, my friends, this is the reason: No man is capable of passing laws unless he is normal. No man is capable of executing the laws unless he is normal. No man is capable of judging the laws unless he is normal.

In periods of great excitement, when the prejudices of men are greatly stirred, when men are unable to control their emotions-then comes the time when constitutional restraint is the saving salt of government. [Applause.]

The Federal Constitution is not the constitution of the convention of 1787, because passed by the Philadelphia convention. Don't let any man lead you into the mistake of believing that the men in the Philadelphia convention made this Constitution. When the Philadelphia convention had passed upon this Constitution they submitted it, not to the legislatures of the various States for ratification, but they submitted it to the conventions of the various States. to be called and filled by the people, and it required that nine out of the original thirteen States should ratify that Constitution. Debates were had everywhere. It was a time of great stress. It was a time that tried men's souls, because for the first time in the history of the world a pure constitutional republic was sought to be created. The preamble to this resolution is the thing with which I take issue in the beginning. This resolution says that: "Whereas, the Supreme Court of the United States has assumed the unconstitutional power to declare laws unconstitutional; and whereas, in the

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Philadelphia convention it was four times rejected when the convention was asked to bestow this I don't agree with that either as a matter of history, nor do I agree to it as a matter of principle. [Applause.]

As a matter of fact, my friends, time and again the question as to whether the Supreme Court should have the power to declare laws unconstitutional was brought before the Philadelphia convention; time and again it was debated. It is true that a proposition was made to give the judiciary the right, with Congress, to determine the constitutionality of a law in advance, and that proposition was voted down. But nowhere in the debates, in my judgment, and I have behind me some of the most distinguished public men and Senators in the Union, and my own research, and nowhere can those things be found as charged. See speech of Senator Sutherland in United States Senate, and J. W. Bailey before American Bar Association, 1915. My friends, the Philadelphia convention was a secret convention. Washington, the President, ordered the doors of that convention closed. He was a great patriot. He did not want the people to know how solicitous, anxious, and uncertain those delegates were about the future fate of this Republic. They had no reporters. The only thing we have are some notes taken by Mr. Madison. It is impossible to tell exactly what occurred in that convention. I know, though, that Mr. Gerry in that convention stood on his feet and announced that the Supreme Court of the United States, under the Constitution, would have the right to declare a law unconstitutional.

But the true test came when it went back to the conventions of the people. And now, gentlemen, I want to impress this on you, because it is too serious a matter to trifle with. It was a known fact that Virginia, through her delegates, the large majority of them, was opposed to the Constitution. New York was opposed to the Constitution three to one. Connecticut was opposed to the constitution, and Massachusetts-and they talked about State's rights, asserting the most extreme doctrine of state's rights that the country has ever known-was opposed to the adoption of the Constitution. I say this to you: We can not adopt any theory in this matter that will violate the compact between the States and the Federal Government written in that Constitution. Why can't we do it? Because the States in their conventions when they adopted that Constitution adopted it with a construction upon it which was the solemn judgment of her people. What occurred in the Connecticut convention? I want to show you. Now, they were debating there whether or not they would adopt this Constitution. They were debating whether or not they would stand or fall with the theory of government proposed in that Constitution.

They debated it day after day, public men in that convention, and strange to say, those State conventions called out the ablest men in America. They were the biggest men of their time and as big as any men of any time. When the matter was before the Connecticut convention, what occurred? You remember Oliver Ellsworth Oliver Ellsworth was afterwards Chief Justice of the Supreme Court of the United States. Oliver Ellsworth was the man who wrote the celebrated judiciary act of 1789. Oliver Ellsworth was a member of the Philadelphia convention, and who better than he was qualified to speak to the men of Connecticut

as to the meaning of that Constitution? Here is what he said to his people. Here is his language-his words:

"This Constitution defines the extent of the powers of the general government. If the general government should at any time overleap its limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void, and the judicial power, the Nation's judges, who, to secure their impartiality, are made independent, will declare it void. On the other hand, if the States go beyond their limits, if they make a law which is an usurpation upon the general government, that law is void, and the upright and independent judges will declare it so."

Connecticut adopted that Constitution and made that compact with the solemn belief that the Supreme Court of the United States was the guardian of the ark of the constitution [Applause.]

The New York convention, as I told you, was almost unanimous, at first, against the Constitution, against the government as proposed. What occurred there? Here is what Hamilton said to the New York convention-you know that the times were so desperate and men's souls were tried to such an extent that John Jay, Alexander Hamilton, and James Madison started a little magazine, called the Federalist, and in that magazine-the greatest contribution to civil liberty that the world has ever knowr-in that little magazine they, by their patriotism and their courage ad their wisdom, gave color and form to the new government. What did Alexander Hamilton say to the New York conver tion? "There is no position which depends on clearer principles than that every act of delegated authority contrary to the tenor of the commission is void. No legislative act contrary to the Constitution is valid. To deny this would be to affim that the deputy is greater than his principal. That the servant is above his master. That the representatives of the people are greater than the people. The interpretation of the laws is the proper and peculiar province of the courts. The Constitution must be regarded as the fundamen tal law. It must belong to them to ascertain its meaning as well as the meaning of any particular act of the legislature. If there should be an irrecor cilable variance between the two, that which has the superior obligation must be sustained. In other words the Constitution must be preferred to the statute. The in ter tion of the people named in the Constitution must be preferred to a legislative bill." [Applause.] When New York adopted that Constitution she did it with the solemn belief that the Supreme Court of the United States would have the right and the power to a ul any law passed by any body in conflict with the will of the people as expressed in that Constitution. [Applause.]

Ah, but they talk about what John Marshall did. My frier ds, you know that I am a lawyer. I know no other business and have never known any other, and if my revere ce for John Marshall exceeds lawful bounds it is because I believe that God Almighty raised him up for a solemn purpose in this Republic. [Applause.] They say that John Marshall, in Marbury v. Madison exceeded his authority. They say that he trampled the Constitution under his feet and declared a law unconstitutional. When that Constitution went from the Philadelphia convention to the State of Virgin ia, John Marshall was there as a delegate. Patrick Henry was there

as a delegate. Edmund Randolph, their governor, was there as a delegate, and when they discussed the powers of the judiciary, John Marshall arose in that convention, and no man answered him nay, and he said: "The Supreme Court of the United States has the power and must exercise the power to declare any law in conflict with the expressed will, of the people in this Constitution void." He said it. Patrick Henry, who died in the last ditch-who opposed the Constitution because he thought that the powers given to the national Government would result in the destruction of the StatesPatrick Henry agreed with John Marshall that under the Constitution as framed, the judiciary would have the right to declare a law unconstitutional. I say to you that when Virginia adopted that Philadelphia Constitution she did it with the solemn belief that the Supreme Court of the United States would be the guardian of the rights of the people as named in that instrument.

Was anybody deceived? Was anybody misled? The people knew exactly what construction had been put on that instrument by those conventions. And that is not all. Why, my friends, prior to the Constitution, way back in 1712, the South Carolina Supreme Court held a law unconstitutional because it was in conflict with the Magna Charta. New Jersey declared a law unconstitutional prior to the adoption of the Philadelphia Constitution. Virginia courts had declared laws unconstitutional. It was no new thing in the history of the American Government. Do you know the reason that men had trepidation about it? Do you know the reason that men had doubts and misgivings about it? I will tell you. Because the people of America had never known any government but the English Government. Under the English Government Parliament is the supreme law. Parliament makes the constitution, and our people could not reconcile themselves at once to the idea that the legislature in Washington was not the equal of Parliament in Great Britain. It was to change that it was to strike checks and balances between the three great departments of government-that that innovation upon government was made in America. Why, the Parliament of Great Britain can not be turned down by the court, and yet Lord Brougham, one of the greatest Englishmen, has said that if Parliament passed a law denying free speech and the right of assemblage among the people it would be unconstitutional, and that although the courts could not strike it down, the people would. [Applause.]

Ah, but that is not the point. America worked out a result, not by revolution, but by peaceful means. So, I say to you, my friends, history does not sustain the assertion that the American people did not understand when this Constitution was adopted that the entire judicial power of the United States was vested in the Supreme Court. History does not sustain the position that the doctrine was turned down in the Philadelphia convention, but history does sustain the position that the recalcitrant States, the States who were fighting hardest against the Constitution when they came in, came in with the solemn conviction that those laws could be declared unconstitutional by the Supreme Court.

The next proposition is that the power to declare laws unconstitutional by the Supreme Court is deducible from the language of the Constitution. On the face of that immortal paper these words occur: "The Constitution of the United States and the laws made