ANFORD LIBRAN

CHAPTER I.

ATTACKS UPON JUDICIAL CONTROL.

Did the framers of the federal Constitution intend that the Supreme Court should pass upon the constitutionality of acts of Congress? The emphatic negative recently given to this question by legal writers of respectable authority1 has put the sanction of some guild members on the popular notion that the nullification of statutes by the federal judiciary is warranted neither by the letter nor by the spirit of the supreme law of the land and is, therefore, rank usurpation. Thus the color of legality, so highly prized by revolutionaries as well as by apos

1Cf. Chief Justice Walter Clark, of North Carolina, Address before the Law Department of the University of Pennsylvania, April 27, 1906; reprinted in Congressional Record, July 31, 1911. Dean William Trickett, of the Dickinson Law School, “Judicial Dispensation from Congressional Statutes," American Law Review, vol. xli, pp. 65 et seq. L. B. Boudin, of the New York Bar, "Government by Judiciary," Political Science Quarterly, vol. xxvi (1911), pp. 238 et seq. Gilbert Roe, of the New York Bar, "Our Judicial Oligarchy" (second article), La Follette's Weekly Magazine, vol. iii, no. 25, pp. 7–9, June 24, 1911.

I

tles of law and order, is given to a movement designed to strip the courts of their great political function. While the desirability of judicial control over legislation may be considered by practical men entirely apart from its historical origins, the attitude of those who drafted the Constitution surely cannot be regarded as a matter solely of antiquarian interest. Indeed, the eagerness with which "the views of the Fathers" have been marshalled in support of the attack upon judicial control proves that they continue to exercise some moral weight, even if they are not binding upon the public conscience.

In an address before the Law Department of the University of Pennsylvania on April 27, 1906, the Honorable Walter Clark, Chief Justice of North Carolina, expressly declares that it was not the intention of the framers to confer upon the courts the power of passing upon the constitutionality of statutes. A proposition was made in the convention, he maintains, to confer this high power upon the judiciary and was defeated; the doctrine of judicial control had been enunciated in but a few cases before the meeting of the Convention and had been strongly disapproved by the people; the action of the Supreme Court in assuming the power to declare an act of

Congress void was without a line in the Constitution to authorize it either expressly or by implication; and had the Convention intended to give the courts this power, it would not have left its exercise unreviewable and final.

To state the case in Mr. Justice Clark's own language:

A proposition was made in the convention-as we now know from Mr. Madison's Journal-that the judges should pass upon the constitutionality of acts of Congress. This was defeated June 5, receiving the vote of only two States. It was renewed no less then three times, i. e., on June 6, July 21, and finally again for the fourth time on August 15; and, though it had the powerful support of Mr. Madison and Mr. James Wilson, at no time did it receive the votes of more than three States. On this last occasion (August 15) Mr. Mercer thus summed up the thought of the convention: He disapproved of the doctrine that the judges, as expositors of the Constitution, should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be incontrovertible.

Prior to the convention, the courts of four States-New Jersey, Rhode Island, Virginia, and North Carolina-had expressed an opinion that they could hold acts of the legislature unconstitutional. This was a new doctrine never held before (nor in any other country since) and met with strong disapproval. In Rhode Island the movement to remove the offending judges was stopped only on a suggestion that they could be "dropped" by the legislature

at the annual election, which was done. The decisions of these four State courts were recent and well known to the convention. Mr. Madison and Mr. Wilson favored the new doctrine of the paramount judiciary, doubtless deeming it a safe check upon legislation, since it was to be operated only by lawyers. They attempted to get it into the Federal Constitution in its least objectionable shape the judicial veto before final passage of an act, which would thus save time and besides would enable the legislature to avoid the objections raised. But even in this diluted form, and though four times presented by these two very able and influential members, this suggestion of a judicial veto at no time received the votes of more than onefourth of the States.

The subsequent action of the Supreme Court in assuming the power to declare acts of Congress unconstitutional was without a line in the Constitution to authorize it, either expressly or by implication. The Constitution recited carefully and fully the matters over which the courts should have jurisdiction, and there is nothing, and after the above vote four times refusing jurisdiction, there could be nothing, indicating any power to declare an act of Congress unconstitutional and void.

Had the convention given such power to the courts, it certainly would not have left its exercise final and unreviewable. It gave Congress power to override the veto of the President, though that veto was expressly given, thus showing that in the last analysis the will of the people, speaking through the legislative power, should govern. Had the convention supposed the courts would assume such power, it would certainly have given Congress some review over judicial action and certainly would not have placed the judges irretrievably beyond "the con

sent of the governed” and regardless of the popular will by making them appointive, and further clothing them with the undemocratic prerogative of tenure for life.

Such power does not exist in any other country, and never has. It is therefore not essential to our security. It is not conferred by the Constitution; but, on the contrary, the convention, as we have seen, after the fullest debate, four times, on four several days, refused by a decisive vote to confer such power. The judges not only have never exercised such power in England, where there is no written constitution, but they do not exercise it in France, Germany, Austria, Denmark, or in any other country which, like them, has a written constitution.

A more complete denial of popular control of this Government could not have been conceived than the placing of such unreviewable power in the hands of men not elected by the people and holding office for life. The legal-tender act, the financial policy of the Government, was invalidated by one court and then validated by another, after a change in its personnel. Then the income tax, which had been held constitutional by the court for a hundred years, was again so held, and then by a sudden change of vote by one judge it was held unconstitutional, nullified, and set at naught, though it had passed by a nearly unanimous vote both Houses of Congress, containing many lawyers who were the equals, if not the superiors, of the vacillating judge, and had been approved by the President1 and voiced the will of the people. This was all negatived (without any warrant in the Constitution for the court to set aside an act of Congress) by vote of one judge; and thus $100,000,000 and more of annual taxation was transferred from those most able to bear it

1Cleveland did not, in fact, sign the bill.