SHOULD COURTS BE CONTROLLED BY THE CONSTITUTION OR BY CONGRESS?

C. B. AMES.

There has been recently a renewal of the attack upon the courts for declaring acts of Congress unconstitutional. This attack is now being made by some prominent and popular political leaders, is receiving the support of the American Federation of Labor, and has just been renewed in the Convention of Non-Partisan Progressives at Cleveland, Ohio. A constitutional amendment has been proposed in order to withdraw this power from the Court, while other leaders of the movement, more impatient and less informed, propose to have Congress deprive the Court of the power, overlooking the fact that the power resides in the Constitution and that Congress is inferior to the Constitution. This agitation has reached proportions which justify a renewed study of the subject and an active interest on the part of good citizens in replying to the arguments advanced by this impulsive and thoughtless school of agitators.

One of the principal arguments made by those who favor the change is that this power has been usurped or assumed by the courts, and at the outset of any study of the subject, this question should be put at rest. Whether or not this power is devolved by the Constitution upon the courts is a matter susceptible of proof, and if the courts in this regard have merely performed a duty and have not usurped a power, those who favor a change should rest their argument on other grounds and should not make so serious a charge of misconduct against the courts.

An examination of the proceedings of the Federal Convention of 1787 will demonstrate that the framers of the Constitution understood that this power was conferred upon the courts. An examination of the proceedings in the various State Conventions, which adopted the Constitution, will show that this power was supposed to exist. An examination of the Constitution itself will prove that the courts possess the power, and an examination of our form of government will disclose that the existence of this power is necessary to the full preservation of our written Constitution and our federal system of government.

The proceedings of the Federal Convention present this subject in its relation to three matters, viz., the Council of Revision, the negative of state laws by Congress, and the judiciary section itself. Of these in their order.

At the opening of the Convention, on May 29, 1787, the Virginia delegation, through Governor Edmund Randolph, as the Convention had originated from Virginia, presented a series of resolutions which formed the basis of discussion and which in their most essential features were finally embodied in the Constitution. They proposed a national legislature, a national executive and a national judiciary. As a check upon the national legislature the eighth resolution provided (The Records of the Federal Convention, Farrand, Vol. 1, p. 21):

"Resd. that the Executive and a convenient number of the National Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by of the members of each branch."

It will be noted that the council of revision here proposed, consisting of the executive and a convenient number of judges, has a veto upon every act of the national legislature of any State, and that none of these acts shall become operative until examined by the council of revision. It is not a judicial review which is here proposed but a legislative review. The discussion of this subject and the final action of the Convention thereon, throw a very clear light upon the meaning of the Constitution and its interpretation by its framers. In a discussion of this subject on June 4th the following debate is reported (I Farrand, 97):

"Mr. Gerry doubts whether the Judiciary ought to form a part of it, as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. In some States the Judges had (actually) set aside laws as being agst. the Constitution. This was done too with general approbation. It was quite foreign from the nature of ye. office to make them judges of the policy of public measures. (He moves to postpone) the clause (in order) to propose 'that' the National Executive (shall) have a right to negative any Legislative act (which) shall not be afterwards passed by of each branch of the national Legislature.

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"Mr. King seconds the motion, observing that the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.

"Mr. Wilson thinks neither the original proposition nor the amendments go far enough. If the Legislative Exetive & Judiciary ought to be distinct & independent, the Executive ought to have an absolute negative. Without such a Self-defence the Legislature can at any moment sink it into non-existence. He was for varying the proposition in such a manner as to give the Executive and Judiciary jointly an absolute negative."

It will be noted that Mr. Gerry's statement that the court, in the exercise of its judicial function, would have the power of deciding on the constitutionality of a law was not challenged, and his historical statement that the judges had done this in some of the states with general approval was likewise not contradicted. The following appears in the proceedings of the same day (I Farrand, 109):

"Mr. King was of opinion that the Judicial ought not to join in the negative of a Law, because the Judges will have the expounding of those Laws when they come before them; and they will no doubt stop the operation of such as shall appear repugnant to the constitution."

The resolution to include the judges in the council of revision was voted down but its advocates brought it up again on July 21st. On that day Luther Martin said (II Farrand, 76):

"Mr. L. Martin considered the association of the Judges with the Executive as a dangerous innovation; as well as one which, could not produce the particular advantage expected from it. A knowledge of mankind, and of Legislative affairs, cannot be presumed to belong in a higher degree to the Judges than to the Legislature. And as to the constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws. Join them with the Executive in the Revision and they will have a double negative."

On the same day Colonel Mason said (II Farrand, 78):

"It has been said (by Mr. L. Martin) that if the Judges were joined in this check on the laws, they would have a double negative, since in their expository capacity of Judges they would have one negative. He would reply that in this capacity they could impede in one case only, the operation of laws. They could declare an unconstitutional law void. But with regard to every law however un

just, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course."

This proposed council of revision, after much debate and the most careful consideration, finally assumed the form of the veto power vested in the President alone. Although the subject was referred to numerous times during the four months' session of the Convention, there was never a time when any member of the Convention took issue with the statements which have been quoted, nor was it ever denied that the courts would be under the duty of refusing effect to an act of Congress which violated the Constitution. The judges were not burdened with the veto power because it was thought that the judicial power should be kept distinct from the legislative power, because the judges ought not to have a voice in the making of the law which they would have to construe, because the judges were no better qualified than the legislators to pass upon the wisdom of laws, because the presidential veto was deemed to be a sufficient check upon unwise legislation, and because the court would have a final check to protect the people against unconstitutional legislation.

During the debate upon the proposed council of revision, and in lieu of the council, it was proposed that the national legislature (subsequently called Congress) be given power "to negative all laws passed by the several states contravening, in the opinion of the national legislature, the articles of union, or any treaties subsisting under the authority of the union" (I Farrand, 162), and there was much discussion of the subject.

On July 17th the proposal was defeated, but immediately before the vote the following discussion took place (II Farrand, 27):