The commoner. (Lincoln, Neb.) 1901-1923, April 01, 1916, Page 12, Image 14

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The Commoner
VOL. 16, NO. 4
Back to the Constitution
By Walter Clark, LL.D., chief Justice of the
supremo court of tho Btttte of North Carolina.
Itoprintcd from Vol. Ill, No. 3, of tho Virginia
Law Uovlew.
Law was long ago defined as "a rule of action
prescrihod by tho supremo power in tho state,
commanding what is right and prohibiting what
la wrong." Which Is tho body in this country
that has tho last supremo word in legislation?
Under our form of government wo havo an ex
ecutive, a legislature, and a Judicial department.
Tho thoory taught in tho schools is that each of
theso is separata and distinct and that neither
can interforo with tho other. Laying aside pre
conceived opinions and deceptivo forms of ex
pression, what is tho real government which wo
Tho legislative is understood to be tho law
making body, as its name imports. If so, it
should bo tho supremo power here, as in Eng
land. In what ways do the Constitution of the
Uiiited Statos and tho constitution of the states
placo any restrictions upon that body? Accord
ing to tho federal constitution and that of
nearly all tho states, there is only ono restriction
that anothor department can placo upon tho law
making body and that is that tho executivo can
interposo his voto upon any legislation which
doos not seem good to him, but tho constitu
tional convention did not see fit to mako this an
absoluto veto. For that would havo placed tho
supremo powor in the executivo. Tho executive
was not given tho ltiBt word, but it was provided
that by a certain voto, which is two-thirds in tho
fedoral constitution and varies In tho different
statos, tho veto can bo overruled by tho law
making body if it adheres to its views. This is
In accordance with tho theory of our govern
ment, which is that the lawmaking body is ono
of restrictions; that is, that it represents the
pooplo and has all power that is not denied it
by the organic law, whereas, tho executive and
Judicial aro grants of powor and have no au
thority except that conforred by the constitution.
This Is tho Btatement mado by Black and sums
up correctly tho analysis of our state and feder
al constitutions as they aro written. In the
federal government, which is not an original
sovereignty, but the creation, after tho revolu
tion, of tho states, tho authority of tho federal
lawmaking body is also a grant of power, for it
has, or .correctly should have, no powers except
those expressly conferred, or necessarily in
ferred from thoso that aro given.
Now, as to the executive (both state and fed
eral), its only powers aro those which are ex
pressly given or derived by necessary inference
from thoso that aro conferred. Tho only au
thority given this department to interfere with
tho others in any way is the veto already men
tioned, and that is not absolute, but subject to
be overruled by a legislative vote. In four
states Rhode Island, North Carolina, West Vir
ginia, and Ohiothe governor was even denied
any veto power, though in some of these in later
years it has been conferred.
As to tho Judicial department the power of
the executivo over it was in the appointment of
tho Judges. This at first was very general but
now the number of states in which they are an
pointed by the governor, with the consent of the
senate, has been reduced to seven. The control
of the Judiciary department by he legSative
was made more complete in that in those stalls
where the governor appoints the upper house
can affirm or reject his nomination, and in all
of them the legislative department has super
vision of tho conduct of the Judges aSM
move them by impeachment. Ir fthrw otthlt
Massachusetts, New Hampshire , nfl iih7
Island-tho legislature, w i5 BnglaSd cant
move the Judges without trial, maTorUy
It may be mentioned hero thnf n,
vn l.u in M. UIlNrilirn n 41
Ofmttey held at the pleasure1 oYZmn
Black, Constitutional Law, sec. 100.
who could remove any Judge it any time with
out a trial. Since 1688 the Judges in England,
as in tho three American states above named,
hold at the King formerly did, at will and with
out trial.
This being the status of the other two depart
ments of tho government, as expressed by the
organic law, what is tho place contemplated for
tho Judiciary department, taking the constitu
tions as they are written? There was given to
the Judicial department no authority whatever
over the other two departments of the govern
ment. There was not conferred on it, as upon
the executive, any veto over the action of either
of the other two departments, not even the sus
pensive veto conferred on the executive. Its
mombers were originally appointed in all the
states by tho executive, save in those in which
such appointment was subject to confirmation
by the legislative department and a few states
in which the judges were elected by the legisla
ture. It was thus the creature of one or the
other, or both the other departments jointly,
and the members of the judiciary were made
removable, as already said, by the legislative
department, while in three of them they still
hold at the pleasure of the legislature. In the
federal government all the judges of the cir
cuit and district courts hold subject to the right
of congress to legislate them out of office at any
moment. In 1802, 16 circuit judges were thus
legislated out of existence by congress, and at
sundry times since district courts have, in like
manner, been abolished. As to the federal su
preme court, it holds its appellate jurisdiction
"with such exceptions and under such regula
tions as congress shall make." Indeed, as to
tho reconstruction act congress enacted that
tho courts could issue no writ to construe the
validity of such statutes, and the court held that
it could issue none. The United States ju
dicial department, therefore, is the creature of
tho legislative department, which, from time to
time, can increase or diminsh the number of
the judges inferior to the supreme court. The
number of-judges on the federal supreme court
is not fixed by the constitution but bv congress
which, from time to time, has increased or dim
in shed the number when it thought the public
interest demanded; for instance, when it was
thought desirable to change the ruling of the
court as to tho legal tender act.
Tho court being the creature of the legisla
ture and subject to it for the extent of its ju
risdiction and for its existence to a large de
gree, whence comes it that the court has been
exercising the supreme power in our govern
ment i. e., the last word in legislation?
Thte?e, ls certainly no express authority for
JmI C, f?remacy" or the "judicial veto," by
which that department assumes the reviewable
and therefore the absolute supremacy over the
other two departments. There is not a line in
the constitution of any state or in the federal
const tution to authorize it. If there were U
would only be necessary to point to thl words
and end all debate. There would be no Zes
sity for sophistical argument, and we would be
saved the absurd spectacle of attemptlnTta sun!
port the authority of the court upon the fact
Sad' E ther CUrt' at SOme other . had
made the same assertion. The former asser
tion is as groundless as one made now! unless
the authority can be found in the constitution
f Jnf7Ulid bG Very Grange, indeed, if any con
!r i mal fconventin had conferred Xhl last
jor tv 1ofraa hnPer,0f sovereIenty upon a ma
jority of a board of appointive judges an Vn,
thority which was denied to the leKiriitu?e bv
whenThadnr,0 gIT the and
wutWe Y Tef anlabaolute vet0 t0 the ex
ecutive. Yet the judiciary was the creature nf
the other two departments until, in nWre-
?St In AffJS-f rjrity of the states bu! no
Ha ?i th51fefral government, the judges f hav
had the dignity conferred upon them of i , a t
rect mandate from the people bv eSSJ2 ? ?"
ballot box. It mav be noted afsoftaMw-M th
from an appointive to an elect i hang-e
hroughtout as a check fiiKSg
a21? mt8iC86n88tltution' Art V
EX5oTte MGCardIe' 74 U- S- 7 Wall.),
And irresponsible power assumed by the courts
of setting aside the action of the legislative ap
proved by the executive department. '
It would consume too much space to discuss
the assumption of this power by the state courts
as it has been more flagrant in some states than
in others. Latterly there has been a further
curb sought to be imposed upon the assertion
of this supreme power in the courts by the adon
tion of the "recall of the judges" in the state
constitutions in eight states. Those who like
the writer, do not think the "recall of the
judges advisable, may well consider the fact
that a free people will not -willingly consent that
the action of their duly elected representatives
empowered to make their laws and of their duly
elected executive shall be brushed aside by a
bare majority of a board of lawyers without any
authority conferred in the constitution.
Have the courts assumed this irreviewable
power and asserted for a majority of the court
an infallibility which they have denied to the
minority of the court, and to the other two de
partments of the government?
Taking the federal court as an example, a few
instances will make reply. Not long after the
federal supreme court was created and it will
be remembered that it was created and its juris
diction fixed by an act of congress, the judiciary
act of 1789, and not by the constitution that
court haled a sovereign state before it and
passed sentence in Chishold v. Georgia. Im
mediately the people took alarm and the eleventh
amendment was passed to prevent the repetition
of the right of a sovereign state being brought
into court at the suit of a private individual. It
was fortunate that this was done, for otherwise
the docket would have been crowded since with
actions by the American Tobacco Co., the Stand
ard oil Co., and various railroad companies,
bringing into court states whose legislation was
not -acceptable to those great aggregations of
The next assumption of power was in Mar
bury v. Madison. John Marshall was secre-
ilSL-i Sia?-, X2 January. l0i;ne was ap
pointed chfef justice and qualified as such and
took his seat on the bench January 30, 1801,
uvl Z tmrijs however, his position as secre
llL i ,8tate President John Adams having
Jf df eaTted fJ re-election, at midnight on
Mn L Jolm Marshall as secretary of state
, ni!5S?nBf aid ?? aling amissions when, as
?.; pJIUn UQ hUr f 12' Levi Lincoln
X 5 I telIs J18?' With Resident Jefferson's
CWp? tS JE? VP )a?,e Secretary of State and
Snlfa mS8"06 M"rsna11 to deliver the commis
sions then upon the table already signed. Among
o? twS? tone to Marbury as justice of the peac!
of the District of Columbia.
BUOTemflmS"6? re Was brught before the
Xcm Si if Wh ch Marshall was still chief
SlJ !eefn? compel Mr- Madison, the
?h7comf7 f i aie' t0 delIver t0 Marbury
stoned nn Wh'?h Marhall himself had
secrltarv o RfnCfCUPyi1ng1 Pe do,lbl Psition of
secretary of state and chief justice.
hi8nown dftntf S?Cl,n,f to sIt in lament upon Chief U8tice wrtla
counts had tL"Wllic? he verted that the
greSS but WnnnTVeri 8Gt &Side Of COU-
pScledlnm SSSJ finalIy With hissing the
So JurlsdM fV?G groUnd that the court had
&eh?J?Jmmndmw' as the con
fn obiter dnS?nJS7ed BVLCh power' Th, n
SSwer ihlih 3; th,B Vast and reviewable
lv7me cwpt thS nf !lJ a maority of the su-
if the onnrf ? lt was known that
Jefferson IS w6?ed the wrlt to issue Mr.
CwS TnTffnl r distinctly made. Later when
sit the "now anS?a11 in anothGr cae did as-
droga'tionTa statnta ooSk0' ?
son nithilv anM ? v: orJeorRia Andrew Jaek-
deciskm hJ w hn Marsuall has made his
aecision, has he? Now let us see him execute
bo muhbKr eXeU-d and has remained as
tloiof til a a?er- The evil from the asser
the court lnd0(ltrIne of ulmate supremacy of
the couris has, however, abided with us.
ofrln11 asa6rtoas against, any .act
or congres-s, however, for 54 years, and then in
2 Dall., 419.
1 Cranch, 137.
" ' Vii