New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1868-01-24
VHO SHALL CONSTRUE THE COySTITU-
TION,


designed to give that Court, the creature,
supreme power over Congress, its creator
resorts to the "Federalist," a book with which
we are somewhat acquainted, and quotes
passage which proves only that the Judges,
in making their decisions in cases in law and
equity, are to cOnstrue the Constitution for
themselves, independently of Congress and OF
the President, and are to enforce laws through
their marshals and officers, or not according
as they regard them as constitutional OF
otherwise. This conflicts with no doctrine
advanced by THE TRIBUNE. What we said,
to which The World excerpts, is this:
1.-THE Supreme Court had fulfilled its proper function OF
deciding cases law and equity many years before the
theory was preached that it had the power TO nuly
law OF Congress by deciding unconstitutional IN s"eh
manner as w0ud bind the Erechre and Legislature
branches Of the Government"
The World italicscs the first part OF our
statement, and attacks it, wholly overlooking
the last clause. which is an essential part OF IT,
All that is claimed by the writer in the
&" Fedcralst" is the independence OF the gu
preme Court from both the Executive and
Congress- and its right, equally with the other
two branches of the Government, to construe
the Constitution for itself. What The World
claims is the complete dependence of both the
President and Congress on the Supreme Court,
and the right of the latter to cOnstrue the
Constitution for both of the other branches OF
the Government. The former doctrine equal
ICES the three departments of the Government,
and makes each a check or balance on the
other. The latter crccts the Supreme Court
into supremacy over the other two. and
places it at the head of the political and legis-
lative functions of the Government.
Some of "our fathers who framed the Gov
eminent under which we live" and who "un-
dcrsto0d this question Just as well, and even
better than we do now had serious misgiy-
ings as to conccding to the Supreme Court the
power of final decision on purely political
questions, and many statesmen of later
times have expressed doubts as to the safety
of submitting such questions to this trlb-
unal in times of high party excitement. Mr.
Jefferson, founder of the Democratic party
said in letter to Mr.. Jarvis, dated Monticello
Sent. %, 1920: "You seem to consider the
iudges rs the ultimate arbiters of all consti-
d" tutional questiOns-a very dangerous doctrine,
"indccd, and one which would place us under
" the dcspOtism of an Oligarchy. Our judges
" are as honest as other men, and not more So
"They have, with others. the same passions
for party, for power, and the privilege of
" their CORDS Their maxim is bOni jHdiciS est
"'d5npiiare juriSdiciOncm,' and their power the
more dangerous, a. they are in office for life.
and not responsible, rs the other function
aries are. to the elective control. The Con
stitntion has erected no such single tribunal
knowing that, to whatever hands coniided.
with coIruptions of time and party, itS
members would become dcSpots. Ii has
more wisely made all the depart
mcnts co-equal and cO-sovercign within
" themselves" Again, IN letter to Mr.. w.
II. Torrance. June II, 1915, Mr.. Jefferson says:
"Thc second question, whether the judges are
" invested with exclusive authority to decide
on the constitutionaity of law. has been
heretofore a subject of consideration with me
Gin the exercise of official duties. Certainly
" there is not a word in the Constitution which
has gwen that power to them more than to
1.-THE executive OF legislative branches There
were many other occasions when Mr. Jefferson
expressed similar opinions
Mr.. Mason of Virginia, during n discussion
in the Senate in 1902, said, i'll that body :
"The object, of courts of law as understand
chem. are to settle questions of right be-
"tween suitors, to enforce obedience to the
Z" laws, and to protect citizens against the OPP
"pressvc use of power in the Executive
Offices. Not to protect them against the
" Legislature, for that | think | have shown
/" to be impossible, with the powers which the
Legislature may safely use and exercise, and
because the people have retained IN their own
hands the power of controlling and directing
" the Legislature by their immediate and me-
diate elections Of President, Senate, and
House of Representatives"
In the House. Robert Williams of North
Carolina said: If this doctrine is to
extend to the length gentlemen con-
Government to be swallowed up i'll the
vortex of the Judiciary. Whatever the
other departments of the Government
"may do, they can undo. You may pass
claw but they can annul it. Will not the
"people be astonished to hear that their laws
depend upon the will of the judges, who are
themselves independent of all law" In the
same discussion, John Randolph of Roanoke
said: But sir if you pass the law, the judges
"are to put their veto upon it by declaring 1t
unconstitutional. Here is a new power, of a
dangerous and uncomfortable nature, con-
"tended for. The decision of a constitutional
"question must rest somewhere. Shall it be
"confided to men Immediately responsible to
"the people, or to those who are irresponsibleY
for the responsibility by impeachment is lit
"tle less than name. From whom is a cor
"rupt decision most to be fearedY To me it
"appears that the power which has the right
of passing without appeal, on the validity of
"your laws. is your sovereign. But,
L" sir, are not we as deeply interested in the