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The Commoner.
I
The Power of Congress Over the Supreme Court
Grand Rapids, Mich. Whatfivor mnv k
thought of tho merits of Victor Bergers old ago
pension bill Itself it must bo conceded by all
who reject tho "judicial Infallibility" dogma,
that the socialist congressman has by tho Intro
duction of this measure incidentally performed
a great public service by dealing a body blow not
only to this heresy but to the more dangerous
one of judicial supremacy and irresponsibility.
Eeference is here had to tho last section of tho
Berger bill, which runs:
"That in accordance with section A, article 3
Of the constitution, and the precedent estab
lished by tho act of congress passed over the
president's veto March 27, 18G8, tho exercise of
jurisdiction by any of tho federal courts upon
the validity of this act is hereby expressly
forbidden."
The clause of tho constitution referred to pro
vides that "in all cases affecting ambassadors,
other public ministers and consuls, and those to
which a state shall bo a party, the supreme
court shall have original jurisdiction;" but that
In all other cases "the supreme court shall have
appellate jurisdiction, both as to law and fact,
with such exceptions and under such regula
tions as congress shall make."
Four times the convention of 1787 refused to
Insert a clause in the constitution giving the
supremo court power to annul acts of congress.
But the supremo court has repeatedly exercised
thin power; and it has for years been generally
accepted as a fact that congress was helpless to
resist judicial usurpations by that tribunal
that tho supreme court, in fact, had become,
through gradual, Insidious encroachments, the
sovereign and irresponsible power. When it
has been proposed in congress to curtail or regu
late 'injunction jurisdiction in certain cases, and
to provide for jury trials in contempt cases not
committed in presence of the court, tho claim
has been strenuously set up that this would be
an unconstitutional encroachment on tho func
tions of the judiciary of which the supreme
court would and should make short work.
There seems to be no question, in. tho face of
the foregoing constitutional provision, of tho
ample power of congress to regulate, limit or
exclude supreme court jurisdiction except in tho
comparatively few cases where it is original.
But, as Mr. Berger points out in his speech in
defense of this section of his bill, tho United
States supreme court, by unanimous decision,
given by Chief Justice Chase April 12, 1868, has
expressly -upheld this power of congress. Mr.
Berger thus states the occasion of this decision:
"Congress on March 27, 1868, enacted over
President Johnson's veto, a law prohibiting tho
federal courts from passing on the validity of
the civil war reconstruction laws. The cause of
this defiant act of congress was the fact that tho
attorney general had expressed the opinion that
these acts were unconstitutional, and had there
fore refused to appear against one McArdle of
Mississippi, who had an appeal for a habeas
corpus writ before the supreme court, he having
been arrested by the military authorities for
newspaper criticisms of their conduct."
In sustaining the validity of this act of con
gress the supreme court said: "The appellate
jurisdiction of this court is, strictly speaking,
conferred by the constitution; but it is conferred
with such exceptions and under such regulations
as congress shall make." Further on the court
says: "It is quite clear, therefore, that this
court can not proceed to pronounce judgment
in this case, for it has no longer jurisdiction of
the appeal, and Judicial duty is not less fully
performed by declining ungranted jurisdiction
than by firmly exercising that which the consti
tution and law confer."
It is surprising that a congressional and
Judicial precedent of such far-reaching scope as
that brought to the front by Mr. Berger has
been practically ignored by nearly all the dally
journals of the country. For, under this unani
mous supreme court decision, congress has un
questionably power not only to prohibit that
court from nullifying any act of congress except
by a unanimous bench (as provided in a pend
ing bill) but likewise to prohibit It from declar
ing unconstitutional any or every act of con
gress now subject to its appellate jurisdiction.
By its refusal to grant the supreme court a
Veto on acts of congress the convention of 1787
prohibited the exercise by that tribunal of such
power, for "all powers not granted by the
federal constitution to the United States
whether to its judicial, legislative, or execu
tive departments are forbidden. Nevertheless,
tho supremo court, under tho roglmo of that
rank federalist, Chief Justico Marshall, author
of tho indefensible Dartmouth college decision,
early usurped this denied authority. And tho
wonder Is that congress and tho country, with
tills ample constitutional remedy at hand,
should have so long submitted to this judicial
usurpation.
Why these important and far-reaching prece
dents, now brought into tho limelight by Mr.
Berger, have been ignored by congress and tho
country for moro than 40 years, it is not easy
to explain. Neither Is it easy to explain why,
now that ho has resurrected them, they are still
given little or no attention by the pross of tho
country. W. M. H., In Tho Public.
MR. BRYAN AND PRESIDENTIAL
NOMINATIONS
Louis F. Post in Tho Public (Chicago):
William J. Bryan is under a constant fire of
charges from all directions, mostly from old
enemies or cold friendB, tho substance of which
is that he is "butting in" to boBS tho democratic
party In tho choice of its presidential candidate
for 1912. But If there is ono man whoso duty
it is moro than any other's to "butt in" at
this time, that man is William J. Bryan.
Some protest that Bryan has had honor
enough in three nominations, and should now be
a "silent sago." Whoever looks upon Bryan's
nominations in that way exposes himself aB a
politician instead of a patriot. An honor, yes;
three times an honor, yes; but only as it is al
ways an honor to bo trusted by millions as tho
representative of their interests and aspirations.
A. mere offer of office, by preference of one man
over others, just to please his pride, simply for
the sake of the office a presidential chair or
a kingly crown there would have been no
honor In that. If the man accepted his nomina
tion in that spirit, it dishonored him; if his
constituents proffered it in that spirit, It dis
honored them. But If both were actuated by a
better spirit, then and only then were the nomi
nations honors. But in that caso tho honors
rest upon both. Tho fact that this honor was
bestowed thrice, imposes no obligation upon
Bryan to retire or upon those who trust him to
retire him. In fact it makes his participation
in politics now all the more imperative as a
duty, and his advice all the moro valuable.
But what is it that Bryan is doing, over which
old enemies and cold friends make such an up
roar? They say that he is trying to dictate tho
presidential nomination. Let's see. In Tho
Commoner of September 1, Mr. Bryan's position
is stated, doubtless by himself, in these terms:
"Mr. Bryan has but ono desire in the matter,
namely, that the best man may be chosen. Ho
has hesitated to urgo any ono man over others
because he is anxious to have tho benefit of all
tho light possible. Many have already reached
a decision for ono candidate or another and Mr.
Bryan is glad to see such organize and present
the claims of their choice." This is precisely
in accord with the attitude Mr. Bryan has main
tained from the start.
As to one person, and only one, has Bryan
discriminated. This Is Governor Harmon; but
he discriminates against Harmon. Wo can
therefore understand why Harmon's supporters
roar. They know that with Bryan's advice hos
tile, Harmon can hardly be nominated, and if
nominated will certainly be defeated at tho
polls. But how shall tho other roar be ex
plained? Supporters of any of the four men
Bryan has named favorably and with no dis
crimination, upon what theory do any of them
complain that he is dictating tho nomination?
We can think of none except that he names four
men instead of one. But if that Is their reason,
aro they not in effect asking Bryan to do tho
very thing for their candidate which they mis
takenly complain of him for doing for some
other candidate? Bryan has no right to be a
boss, of course; but on the other hand hasn't
ho the right not to bo bossed?
ONE INSTANCE
After reading the report of the disbarment
of Attorney Thatcher and his reinstatement by
the legislature one can understand why SOME
Judges object to the recall. But the court goes
to the limit when it disbars an attorney for
showing up tho record of a judge and the dis
barment occurred AFTER the people had de
feated the judge!
THE CONGRESSIONAL BALANCE SHEET
In Tho Commoner of September 1, William
J. Brynn makos what ho calls a balanco shoot
of tho rocord of Uie democratic party at tho
special session of con gross which closed last
month. Wo hero translate tills balanco from
literary Into bookkooplng form:
DR.
Making U rul or wood chairman of oomrnlttoa on
ways mid moan 8. ("Ho Is not a thorough-
folnic tttrirr reformer and tiln onvlronrnont la
gainst progressive democracy am
hI to a Hurronder of tho democratic doctrine of
froo wool and to tho surrender to tho aonatc of
tho honor of introducing tho bill reducing th
tariff on Iron and atoel ) 1
Not putting wool on tho freo Hat. ("Tho tariff
on wool Ih tho koyatono of tho protectionist
arch. lCvory speaker on tho tariff will
bo confronted by tho tariff on wool if lid at
toinpta to attack tho principle of protection,
and ha must crlticlKO congrosa, or, if ho do
fenda congroas, ho iiiuxl do ho at tho oxponao
of party prlnciplo") 1
Adjourning without RtihtnlaHlon of tho amend
ment for election of United Htatoa aonatora by
direct vote of tho people 1
Not passing an antl-truat bill. ("Tho decialon of
tho supromo court In tho Standard Oil and to
bacco cases no Impaired the proaont antl-truat
law that additional legislation la lrnporatlvuly
noccaaary") 1
Allow aucret caucua 1
Balanco to credit of futuro asaslona 4
9
CR.
Election of Champ Clark aa apcakcr ("a groat
improvement over Speaker Cannon") 1
Transfer of committco appointiuonta from speaker
to party caucua, each party selecting Ita own
quota ("a atop in advance") 1
Carried forward 2
Brought forward 2
Passing amendmont for eloction of aonatora by
direct voto of tho peoplo ("an epoch-making
reform") 1
Corrupt practlcea act. ("Carrion out tho laat
democratic national platform broad
ened and Improved In tho aonato and tho proii
dont haa signed it. Thia la ft dlatanct victory
for tho party. Mr. Taft emphatically oppoaod
tho idea In tho laat campaign") . i 1
Keeping faith with the preafdont In aupporllng
the reciprocity agreement ("a atep in tho
direction of tariff reduction") 1
Passago of wool bill, votocd by tho prenldont.
("Would havo given tho people a largo rneaauro
of relief. Moro relief had It become,
a law in tho form in which It paaaed tho houac.
Still moro aatlafactory had It been
framed on tho basis of freo wool") 1
Paaaage of farmers' free Hat ("a very meritorious
mcaaure. Tho farmors ought to re
member that in thia matter tho president de
liberately surrendered thorn to tho grood of
tho protected intoreata and caat in his lot with
thoso who furnished hla campaign fund") 1
Passage of cotton reduction bill. ("Bill waa good
and tho aonato amendments mado it hotter"),. 1
Action on Arizona and New Mexico statehood.
("Tho first resolution permitted Arizona to voto
out tho recall of judges and pormltted New
Mexico to change hor constitution ao aa to make
It moro easily amendable. When tho president
vetoed this, congress wisely changed tho reso
lution to compel tho elimination of tho recall
of judges tho provision can bo reinstated by
tho state and thus secured statehood for both
territories 1
A credit balance of 4 points out of a possible
14 makes a hopeful showing, to be sure; but
unless at the next session this credit is very
largely increased, those voters who look upon
tho matter as Mr. Bryan does and they are not
so very scarce, either may lack enthusiasm a
year hence that the rank and file of a progres
sive party must have In order to win. Louis F.
Post, in The Public.
THE EDUCATED INTERESTS '
To the Editor of tho World: Tho duty of
the educated leisured classes is to impress upon
working classes the vital necessity for tho reign
of order under tho law. Andrew Carnegie to
tho Editor of tho World.
That is to say, the educated bondholders,
stockholders and officials of the steel trust
should teach tho Ignorant working classes to
respect and obey tho law.
Tho educated classes who control the beef
trust, the sugar trust and like law-abiding cor
porations should teach the ignorant working
classes t oobey the injunctions of the courts and
tho statutory enactments of congress and the
state legislatures.
Certain educated and leisured members of
high society should instruct the Ignorant of tho
workday world in morals, the ethics of matri
mony and the duty of respecting the divorce
decrees of tho courts.
As one of the ignortant working class, I fear,
however, that there always will be economic
unrest and perhaps strife as long as there are
Carnegies and tho particular form of mental
strabismus whoso distorted view Mr. Carnegie
ingenuously confounds with education. It. It.,
In New York World.
New York, Sept. 24.
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