Green-Mountain freeman. [volume] (Montpelier, Vt.) 1844-1884, 1868-01-29
The Supreme Court.

just the Democrats pretend to be very |
much alarmed because Congress is consider |
/ ing bill requiring concurrence of two
! thirds Of the judges of the Supreme Court in |
deciding any law Of Congress unconstitu-
tional. 1t is denied by some Democratic
writer's that Congress can, constltutionally. |
50 limit the power of the Court in such de-
sisions and other writers claim that, even
if within tho power residing in Congress,
such legislation would be an unwarranted
assault upon the independence Of the Court, |
and an unjust and impolitic restriction of its
judicial functions Let us consider both of
these positions.
The constitution declares that a. the judi |
d" cial power of the United States shall be
g vested in one Supreme Court, and in such |
'' inferior courts as the Congress may from
% time to time ordain and establish The |
constitution also says, 90 the judicial power
g shall extend to all cases, in La,c and equity,
g arising under this constitution, the laws of
" the United States, and treaties made. or
. which shall be made under their authority
| The Supreme Court has original jurisdiction
in q certain class of cases, and appellate juris>
diction in all other cases '' with such excep-
- tions, and under such regulations the
:. Congress shall make These are all the
provisions of the constitution which are
| claimed to have any bearing upon the ques-
ton before Congress. 1t is admitted that
Congress may, without violating these pro-
| visions, increase the number of judges, and
this has been done without question. 1t is
also admitted that Congress may declare how
many judges shall constitute a quorum, and
| this has been done without question, bare
! majority having been constituted such quo
rum. But if Congress can say that five shall
constitute quorum, why may it not require
six for that purpose? If it has any power to
power covers all that is contemplated by the
proposed legislation. There is nothing left
to argue about.
! As the constitution is silent as to how
many judges shall constitute the Court, when
and where it's terms shall be held, in fact
silent in everything except in respect to the
tenure of Office, and the jurisdiction of the
Cours,-it must necessarily follow that Con-
gress has the right to declare ho,c the judicial
power shall be exercised by the Supreme
Court, deriving that right from the clause in
| the constitution which declares that Congress
shall have power - to make all laws which
shall be necessary and proper for carrying
:. into execution all powers
vested by the constitution in the govern
- ment of the United States, or in any depart
rnent or officer thereof"
If. then, Congress has the constitutional
power to enact that law shall not be de-
clared unconstitutional by the Supreme
| Court unless two-thirds or more of the judges
concur in such decision, what objection is
there to such an enactment? Here it should
be borne in mind that every law of Congress
must have the approval either of ma
ierity of the House and Senate, and the Pres
ident, acting separately, or the approval of
two thirds of the House and Senate, if the
President vetoes the bill. The Senate is al
Ways composed largely of lawyers, and a
majority of the House always belongs to the
| profession from which judges are chosen, and
it has generally happened since the origin of
the government that the President has been
| taken from the legal profession. Before a
bill can become law at all it must receive
the support of a body of professional states
men who have made the constitution study,
and who are presumed to have considered the
question of the constitutionality of the law,
~ we'll as it's expediency and necessity, before
acting upon it. What improperly can there
he, in this view of the case, in requiring at
least two-thirds of the Supreme Court to
sgree, before it can veto 4 law of Congress?
If the constitution makes two-thirds vote
7 of Congress necessary to override an execu-
D tive veto, ought not two-t thirds of the Supreme
4 Court to be required to annul law passed
BY that two-thirds vote? The reasonableness
Of such requirement is apparent upon the
n merest statement of the proposition, and re-
: quires no argument to compel the assent of
t every person whose mind is not closed against
e conviction by partisan prejudice.
= Nor is the independence or equality of the
d judiciary with the executive and Legislative
departments, assailed by the contemplated
Il legislation. The organization of the judiciary
d was left by the constitution in the power Of
!. Congress 1t can and does act only under
Is but only interprets and applies the laws ant
+! treaties of the United States. Its whole
:, method of procedure is fixed by law. The
j. judicial power is vested in it, but Congress
8 makes the laws which fix the methods of it,
= action as much as though the Court had no
"A been mentioned in the constitution. 1t is, IL
20 fact, wholly dependent upon legislation TO
D. the laws of it's being, and any enactmen
NJ which does not take from it constitutions
'. right, cannot assail its independence, as
Il rightfully had no independence of such legif
er lation.
a As to the expediency of passing such BIZ
- AZ the one which has received the sanction G
. the House, and is now before the Senate
n there is much diversity of opinion eve
ut among Republicans. If the Supreme Cour
,et was not becoming, or trying to become,
be political power, it might be advisable to leaV
it as it now is. But when it enters the pt
10 litical arena, and seeks opportunities TO al
NJ null laws which have been solemnly enacte
ire by overwhelming majorities of the La"
b. making power,-laws enacted to secure IL
- dividual right, and establish free govern
on ments-the law-making power owes IL u =
= own existence, as well as to the ''nf''''e"'