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up for sentence; Georgia, New Jersey, Virginia, New Hampshire, Vermont, Louisiana, Missouri, Kentucky, Ohio, Pennsylvania, Maryland, New York, Massachusetts, South Carolina (Delaware just escaped over Black-bird creek), all passed through the Caudine forks of a subjugation which has more than revived the suability of states. Beginning with Madison's case, there are nearly forty of these political fulminations from 1803 to 1834, viz., one each in 1806, 1812, and 1813, two in 1815, one in 1816, four in 1819, three in 1820, two in 1821, two in 1823, two in 1824, one in 1825, four in 1827, five in 1829, three in 1830, two in 1832, two in 1833, and one in 1834; a great fabric of judicial architecture as stupendous as the pyramids and as inexplicable. I
When the Supreme Court underwent a change of complexion shortly after Marshall's death, these efforts to curb the judiciary came to an end. Yet never was the judiciary more bitterly arraigned than by Senator Sumner of Massachusetts in his address at Faneuil Hall, when the Supreme Court upheld the constitutionality of the Fugitive Slave Law. Those distant controversies awaken only languid interest to-day. The Court's decisions were, with few exceptions, salutary and right. They made the Constitution a thing of permanence.
If to-day there is scathing criticism of the courts, the reasons are, not political, but economic. The judges, it is said, frustrate the effort of legislatures to improve social and economic conditions. In earlier days they set aside legislation only when it was “plainly and palpably unconstitutional”; now, it is said, they
I "Judiciary in U. S. History,” Lalor's Cyclopædia, ii., 652, 653.
constantly substitute judicial opinion for legislative opinion as to the expediency of laws.
From the charge that the judiciary has exceeded its power, the step is easy to the charge that in setting aside laws it is guilty of usurpation. The conduct of the courts has led to an examination of the grounds of their authority to override the legislature; and we are now told that the power was never granted, that it is the result of a series of encroachments, that it disturbs the equilibrium of the three great branches of government, that nothing in the history of the States or the nation can be found to justify it, and that the judicial structure has been built upon a fallacy. This raises a question that can hardly be transcended in importance. If, for sociological reasons, restrictions are to be put upon the judiciary, no sound constructive legislation can be had, except upon the solid and enduring basis of truth.
Is it true, as is so often said to-day, that the Constitution of the United States does not confer upon the Supreme Court the power of annulling statutes, that there is not a line in that instrument to authorize it, either expressly or by implication? Is it true that there is no evidence of any such purpose on the part of the Convention which framed the Constitution, that such judicial usurpation as the setting aside of a State law was a thing almost unknown when the Convention met, that it was at war with all British precedent, and
1 According to Senator Owen of Oklahoma, “No one pretends that the jurisdiction is expressly given by the Constitution, and John Marshall ought to have known that it was expressly refused.' (Congressional Record, August 4, 1911, p. 3696.)
that if in two or three instances State courts had exercised such arbitrary power, there is not the slightest evidence that a majority of the members of the Federal Convention or of the State conventions that ratified the Constitution knew of or approved the doctrine? These and similar statements are made not only in Congress, in the press, and upon the platform, but also in magazines of influence and before associations of lawyers and law students. Careful and impartial study of the debates in the Philadelphia Convention, and in the various State conventions, and of the history of the times in which the Constitution had its origin, will, I think, show that these modern teachings are erroneous.
The meaning and intent of the Constitution is to be learned from that instrument; not from the opinions of its framers, or their chance utterances in debates in the Convention. This proposition has the support of great judges of the Supreme Court, including Marshall and Taney. For this reason, and not because he was unaware of the views expressed in the Convention and in the ratifying State conventions, Marshall, in Marbury V. Madison, wisely resolved to seek the will of the people, not in the sentiments elsewhere expressed by the venerated authors of the Constitution, but in the Constitution itself. This deliberate resolve of Marshall has been sophistically perverted into an argument that he feared to resort to the views of the Convention and the decisions of State judges, because he knew how meagre and unreliable were the precedents holding that the judiciary could set aside laws.
If, as was said by Chief Judge Gibson, of the Supreme Court of Pennsylvania, the Constitution is supposed to contain the whole will of the body from which it emanated, and if it is not permissible to look into the debates in the Convention in order to learn its meaning, nevertheless, inasmuch as this is the very course of the modern assailants of judicial power, as they keep reiterating that the most careful study will reveal no evidence whatever of any intention on the part of the Convention to vest the Federal judiciary with authority to override Federal or State legislation at variance with the “supreme law,” the interest of truth requires that this challenge be met. While it is not possible to extract from the records a categorical answer to the question: Did the authors of the Constitution or the members of the ratifying conventions or the citizens they represented say, in so many words, that they meant to give the Federal judiciary the right to set aside unconstitutional laws? a great volume of material indicative of this purpose exists. The thesis here to be supported is, therefore, that the conventions and the people did intend to give the courts this power. In the progress of a century the power may have been abused. That, however, is beside the argument, which is, that the power was intentionally and expressly conferred.
To the main discussion which follows have been added some observations upon the necessity for an independent judiciary. Judicial recall is so direct a blow at judicial independence that it can be no cure for any evils in the judicial system. There is no desire to blink the necessity for improvement, but no reform can be effected by abandoning the fundamental principles upon which the social edifice rests. Reform is not possible unless these are maintained.
* Eakin v. Raub, 12 Sergeant and Rawle, 330, 343.
THE FEDERAL JUDICIAL POWER
After the decision of the Supreme Court of the United States in Juilliard v. Greenman,' the latest of the Legal Tender Cases, the historian George Bancroft wrote a criticism of it entitled, “A Plea for the Constitution of the United States of America, Wounded in the House of its Guardians.” To this a reply was published by Mr. Richard C. McMurtrie of the Philadelphia bar, “Observations on Mr. George Bancroft's Plea for the Constitution. In that case the Supreme Court held that, as incident to the power of borrowing money and issuing bills or notes of the government for money borrowed, Congress could make these notes legal tender for the payment of private debts. This was a power universally understood to belong to sovereignty in Europe and America when the Constitution of the United States was adopted; and as, according to the Court, there is no limitation in the Constitution upon the power of the United States in this particular, its powers in this field were held to be as plenary as those of any other sovereignty.
The argument in the Legal Tender Cases had involved the question of the jurisdiction of the Supreme Court
I110 U. S., 421.