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'APRIL, 191G
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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',
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