New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1868-01-21
THE SUPREME COURT AGAIN.

| THE SCPREuE COUNT AG1IN.
The Times and World, hunting in couple, are
nosing around, shutting the air. and scratch
ing violently to find something in the Consti-
tuition which prevents Congress from enactlng
| that the assent of twO-thirds or three-fourths
! of the Supreme Court shall be necessary to
annul an act of Congress on the ground of I'M
cOnstitutionality. They are unable to find a
! single clause to sustain their assumption.
! The Times therefore goes to the expense (Of
character) to invent one. 1t strangely says that
the Constitution declares that "the Supreme
Court shall decide all questions arising under
"the Constitutions" The Constitution does not
so declare 1t declares that "he judicial
"power shall extend to all cases in tdw
"dnd equity arising under this Constltu-
"tion. the laws of the United States,
:" and treaties" &c. 1t is the judicial
power, presiding in the Supreme, Circuit, and
District Courts, which is here defined, and not
the Supreme Court merely; and it is leases
8" in law and equity not @ all questions arising
under this Constitution" of which jurisdiction
is conferred on these Courts. The distinction
is not merely verbal but historical and impor-
tant. The Supreme Court had fulfilled its
proper function of deciding cases i'll law and
equity many years before the theory was
preached that it had the power to nullify a
law of Congress by deciding it unc0nstltu-
tional, in such manner as would BIND
the Executive and Legislative branches of
the Government. President Jackson held
that the three coordinate branches of the
Government must interpret the Constitution
independently, each for itself, and that the
construction placed on it by Congress could not
bind either the Executive or Congress. The
whole doctrine that the Supreme Court has
revisory jurisdiction over the laws of Congress,
and can sustain or annul them at pleasure, ac-
cording to the political bias of the judges, Is
one of recent growth 1t could not have been
foreseen by the trainers of the Constitution, for
no such power exists in the highest courts
of Great Britain, in analogy TO which
our Constitution is framed i'll many re-
spects. SO far as the trainers of the Con-
sttution showed a design to place the ulti-
mate sovereignty anywhere, it was vested IN
Congress, not in the Supreme Court. But
Slavery having a majority III the Supreme
Court, after it had lost it in Congress, took
refuge in its citadel, and undertook to erect 1t
into a kind of supremacy over Congress and
the Executive, like that which the Mikado or
Spiritual Sovereign of Japan enjoys over the
Tycoon, or Civil Emperor. The gradual
accession TO, or usurpation OF, tins tunc-
ton by the Supreme Court, converts 1t
into a political and legislative branch OF the
Government 1t becomes really the ultimate
Senate for supervising the legislation OF Con-
! gress without whose asserting vote no law
can be said to have been finally passed. That
! such a political power shOuldl hinge upon the
mere power to decide ceases in law and
equity may be one of the logical effects of
written Constitution, just as party nOmina-
! tons to the Presidency are a logical effect of
the Electoral College, but, like that it was an
unforeseen effect, and to claim that the trainers
| of the Constitution contemplated that the SUI
preme Court should be lifted into Third
House, or Upper Senate, of the Legislature,
with a TevsOry power over the other two
bodies, and veto on the President, is pre-
posterOus.
But, cOncedng that the power to annul the
laws of Congress, at will, is one of the powers
which the Supreme Court may exercise as
an incident to the power to decide cases In
law and equity, this power" of the Supreme
Court is still under the legislative control of
Congress. For the Constitution cOnfers on
Congress the power to make all laws
(which shall be necessary and proper for car
irving into execution all powers
"vested by this Constitution in the Govern
"ment of the United States, or any department
" or officer thereof"
If, therefore, it is one of the powers vested
in the Supreme Court to decide for Congress
what is and what is not constitutional" then
Congress may make all laws which, in its own
Judgment, shall be necessary and proper" to
regulate the manner in which the Supreme
Court shall decide upon the cOnstitutionality of
the acts of Congress. If, therefore, in the judg-
ment of Congress, it is proper and ought to be
necessary that the Supreme Court should not
annul an act of Congress for alleged uncOnsti-
nationality, except by three-fourths or unani-
nous vote, then law TO that effect is one OF
the laws which Congress is expressly author
| lied to pass by Clause 18 of Section WILL of
| Article j. of the Constitution of the United
States Congress has never exercised a power
more plainly conferred.