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About The commoner. (Lincoln, Neb.) 1901-1923 | View Entire Issue (April 1, 1916)
Vic-i TF2 iwtw "wr ?, " "1" The Commoner 'APRIL, 191G 13 H t- m m. "rv .:w -:,1 'W Ju 1 the Dred Scott case. The criticism of that de cision by Abraham Lincoln was sharp and shrewd. That decision, probably mpre than ovfMnt nlKP mfido thr irreat Civil war inevlt- able and brought in its train the enactment of I the thirteenth, fourteenth, and fifteenth amend ments. We can not overlook the fact that the su preme court, in reaching out for mora power, held in 1842 that a corporation was a citizen' of the stato which had created it. Up to that ime the court had uniformly held that a cor poration was not a citizen within the meaning of the "diverse citizenship" clause of the con ettHiHnn Thn rPRiiU. nf thin "chance of front" fc was that corporations have brought their cases In the federal courts in overwhelming numDers hofnrfl life-tenure, annointivo Judges, most of t whom have been trained in the employment of corporations As the president oi one great railroad company said when he defied a state statute regulating its rates, "the federal courts are the haven and home of corporations." Later on we. had another spectacle. The legis lature elected by the people of New York, in the discharge of the police powers resident in every state government, tfassed an act restricting the hours of labor of bakers subjected to excessive heat in their trade. The highest court in New York promptly held that the people of the state could thus protect the health and the lives of its laborers. The case was carried into the supreme court of the United States, and there, by a vote of five infallible judges against four fallible judges, the powers of the states were set aside and it was held that the great state of New York could not thus protect the lives and health of its laborers because it would interfere with the "liberty of contract." The reason given was worse even than the usurpation of authority. It was an insult to the Intelligence of the public, for everybody knew that these bakers were not seeking to vindicate the liberty Bof contract, but were aslring to be protected in Itheir lives and health. The decision of the court was in truth based upon unwillingness to curb the power of the employer over the em ployee. Further back we had been treated to the .spectacle in the Dartmouth College case of the court holding that the charter of a cor poration was not a privilege but a contract, and therefore irrevocable, with the sequence that If a corrupt legislature could be induced to grant a charter, no subsequent honest legislature could revoke it. There would be no place for the people to control their own government. To meet this condition the people of the several states promptly made amendments to their con stitutions, by which it was provided that char ters of all corporations granted thereafter should be subject to change, modification, or re peal at the will of the legislature. It was thus that the people were forced to regain their con trol over their creatures by nullifying the de cision of the courts. For 100 years the court had held an income tax constitutional. By this means, indispensable aid had been given to the party of the Union in carrying on the Civil war. But those who were called upon to pay the in come tax, the multimillionaires and great cor porations, again presented a case calling in ouestion the validity of the action of congress. The supreme court, following the precedents from the foundation of the government, but only by a bare majority, again affirmed the power of congress. Soon thereafter one of the majority judges, having received possibly a wireless intimation of the views of the 39 men who signed the constitution at PhiladelDhia in 1787, let it be known that he had experienced a change of heart. A petition for rehearing was granted and then by another vote of five infal lible judges against four fallible judges (with a change of personnel, however) the act of con gress was held unconstitutional, though it had been passed by an almost unanimous vote in both houses of conerss and had been approved by the president. The result of th's astounding change was that more than $100,000,000 of taxes annually were red Sdntt v. Sandford, 19 How., 393. "Louisville, C. & C. R. Co. v. Litson, 2 How., 497, ' T.nchner v. New York. 177 N. Y., lf45. T,nChner v. New York, 198 TT. S.. 45. T)artmouth. College v. Woodward, 4 Wheat,v518. ,, -. TO0 aj3flr , Pollock y 'Farmers' L. &.,T.1Co..w158 u. a., fioi. transferred from those best ablo to pay them and upon whom congress, with the approval of the president had placed them, and wcro im posed upon the toiling masses who wero already overtaxed. The people ol the Union would not stand for this, and again a constitutional amend ment was passed and finally adopted. But In the meantime It is estimated that more than $2,000,000,000 were levied upon the producers of the country to tho exemption of tho great corporations and of tho multimillionaires upon whom congress in the discharge of Its duties and powers had seen fit to lay it. Other instances of this abuse of irresponsible power by the courts could bo cited, in both the federal supreme court and many of the state courts. But it should go without saying that irresponsible and lrrovicwable power Is always tyranny. Even if its effects are not always as evil as the cases thus cited, it is Intolerable be cause It is in contradiction of tho will of tho people, upon whom wo boast that our govern ment rests: "All power proceeds from the peo ple and should bo exercised for their good only." Not only such power was not given to the ju diciary In any constitution, stato or federal, but in the convention at Philadelphia there was an attempt to put it in the United States constitution. It was voted down, though tho clause was brought forward by James Madison, afterwards president of tho United States, and by James Wilson, afterwards a member of tho United States supreme court. That convention sat with closed doors, with its members sworn not to communicate any of its proceedings to their constituents, and a vote to destroy its journal was prevented only by a bare majority. That journal' was not made public for 49 years, and wo now know from It that this proposition that the judges should pass upon tho constitu tionality of acts of congress wns defeated four times, i. o., first on June 4, 1787, receiving at that time tho vote of only twd states. It was renewed no less than three times, i. e., on June G, July 21, and, finally, for tho fourth time on August 15, and at no time did it receive the vote of more than three states. On this last occasion (August 15) Mr. Mercer thus summed up the thought of the convention: "Ho disap proved of the doctrine that tho judges, as ex positors of the constitution, should liavo author ity to declare a law void. He thought laws ought to bo well and cautiously made and then to bo incontrovertible." The docrtine that tho courts can set aside an act of the legislature has never obtained in Eng land, which has no written constitution, nor in France, Germany, Holland, Belgium, Denmark, Austria, Norway, and Sweden, nor in any other country that has a written constitution. Its as sertion in this country has not therefore oven the "tyrant's plea of necessity." The rest of the world have gotten along very well with out it. The courts have attempted only once in Eng land to assert a right to set aside an act of Parliament, and then Chief Justice Trcssilian was .hanged and his associates exiled to France, and hence subsequent courts have not relied up . on it as a precedent. Of course, there have been expressions at times in the courts of England criticizing acts of Parliament generally with great modesty, but sometimes going to the extent of saying that they were not valid but this never extend ed beyond an expression of disapproval, for no court in England since Tressillan's day has re fused to obey an act of Parliament. Prior to the American Revolution the acts of our colonies were sent home to England, wh"re they were allowed or disallowed by the privy council, for in this way the mother country held its control over the colonies. After the ac knowledgement of the independence of the thir teen colonies and before our federal convention met at Philadelphia, the courts of four states New Jersey, Rhode Island, Virginia, and Nnr'h Carolina had assumed to themselves the power formerlv exercised by the privy council in Eng land. This met with immediate and strong dis approval, and in Rhode Island the judges were "drdpped." Those decisions were well known to the members of the convention at Philadel phia'. Mr. Madison and Mr. Wilson favored the nesv doctrine of the "paramount judiciary" as a safe1 'check upon legislation, for government by the: people was new aid the property holders weVef fearful of the excesses of an unrestricted congress. The'rattempt was 'to get the judicial veto into the federal constitution In its least objectionable shape by submitting tho acts of congress to the court before tho final passage of an act, but even this failed, for though four times prosentcd by theso two very ablo and Influential members, this suggestion of "Judicial veto" al no tlmo re ceived tho votes of more than one-fourth of tho states. - Thoro can bo no doubt that If such power had been inserted tho constitution would never havo been ratified by the soveral states. It is truo that the constitution docs proscribe that tho constitution of tho United States and tho acts passed undor tho authority thereof shall bo supremo over tho state constitutions and laws. This Is necessary In any federal gov ernment. This docs not, however, confer upon tho supremo court tho power to sot naldo acta of congress, like the Income-tax and othor stat utes, not involving the boundary lino between state and federal jurisdiction. Tho very fact that this provision wbb put Into the federal con stitution shows that tho convention did not in tend to confer upon tho court tho unlimited power claimed later under tho doctrine of Mar bury v. Madison. Aware of this defect, tho court since tho war has sought to found its ju risdiction to nullify legislative action upon tho fourteenth amendment. It has been well said that that amendment, which was Intended for the protection of the negro, has failed entirely in that purpose, but has becomo a very tower of strength to the great aggregations of wealth. Not only no force can bo justly given to the construction placed by tho supreme court upon the fourteenth amendment, from tho knowledge of tho history of Its adoption, but the words used can not fairly be interpreted as they havo been. "Due process of law" meaNs the orderly proceeding of tho courts, and the "equal pro tection of tho laws" was never intended to give to tho federal courts irreviewable supremacy over congress and tho president. It Is not too much to say that the ingenious reasoning in Marburv v. Madison and tho con struction placed upon the fourteenth amendmont havo had tho same origin In the desire of the supremo court to amplify Its jurisdiction, and in tho desire of tho great interests to hold tho courts as a shield between them and tho action of congress and the Ioglslatures when they have not succeeded In defeating legislation by fair moans or foul. But as a last resort, it is urged, must not congress and the legislatures obey the constitu tion? Most certainlv. Tho members take an oath to do so, and there Is as much patriotism and, considering tho larger size of legislative bodies, a greater aggregate intelligence in them than in the courts. But It does not follow that If a legislature, or congress, misconceives or vi olates the constitution, tho courts havo tho power to nullify tbelr action. The only super vising control of the legislative body given by the constitution is tho voto of the executive; not of tho courts, and that executive veto Is only suspensive. If the legislature still Insists, the supervising power is In the people In tho election of senators and representatives who will put a more correct construction on the con stitution. It must be remembered that there Is no line in the constitution which gives the courts, in stead of the people, supervision over congress or the legislature. There Is no constitutional pre sumption that five Judges will be infallible and that four will be fallible. If the legislative and executive departments of the government err the people can correct it. But when th courts err, as they frequently do for instance, as in Chisholm v. Georgia, in the Dartmouth Collece cas-. or in the income tax cas, not to mention others there is no remedy, except by the long, slow process of a constitutional amend ment or by a change in the prsonnpl of tho court, which Is necessarily very slow when tho judges hold for life as they do In the federal courts. I do not intend to question tho ability and integrity of Chief Justice Marshall. Like other men, ho saw the world from his own standpoint and from his environment and with tho prepos sessions of h's day. He had small faith in the capacity of the people for self-government. He believed in a strong central government and distrusted the states. He believed that the function of government was the protection of property rights, which he thought Jeopardised by the rule of the people, who wre mostly withr out property. At that time he exneriment of popular government was untried and the people, were uneducated. Moreover, he was a strong', (Continued on Page 14) ,( i -' - V arl..w& jsjiv i.Ai3Cn j,t.Mfc. ,.. A. j . . jt r