New-York tribune., 1870-01-10
THE JUDICIAL POWER.
A MEDICATION

hat high Office with that of the conspirator Catne
nto the Senate of Ancient Rome. were an indecOrum
most unbecOming But to avow the opinion, that
'he conspiracy of Catue far less alarming, far
ess deleterious much less obnoxious to condemna-
lion, than the recent bill Of Senator restricting the
Jurisdiction Of the Courts of the United States is
neither extravagant nor unwarranted. Had the
conspiracy of Catiline succeeded Rome could still
have recovered from the temporary injury To deny
10 the judicial department of our General Govern
nent the authority and the functions until this time
ever possessed by it, TO deny TO this moderate
AID LIMITED Government the security of its suprem-
lcy and the safety and integrity of the Governments
Of the States or, to speak more cOmprehensbly yet
not inaccuratey. were to deny to the Constitution
the power of accomplishing any of the great pur
for which it is declared in its preamble. The
people of the United States ordained and established
&C. The mover of this bill avows in the inception of
his remarks, Against all my legal education and
precOnceptons against the reiterated rulings" of the
supreme Court, against all professional tradition.
and against the authority of all the writer's on Amer
can Constitutional Law. found myself involuntarily
doubling the right of the Court to declare act of
Congress invalid for unconsttutiOnality." BY some,
such an ayOwa might be pronounced the audacity
Of superior genius by Others, the presumption of
ignorance and by others the crude folly of hasty
opinion. Without iudulging in any such terms of
censure or dsapprobaton, it may be properly said,
the mover declares that the period of CESSATION of
this anomalous thing within two years" that
IL would have been better for his fame if the incuba
zion had been shorter, unless like the egg found by
Sindbad the Sailor its monsrosity must have
quIred so long term of parturiton.
The Senator frankly tells US of his "nvOluntarily
1oubtng' mind and we cannot but believe it would
have been happy for him had he remembered say
ing of Lord Bacon, that doubts among thoughts
like bats among the birds: they only fly by
twilight"
But this could not havebeen ifor the mover is
assured that the delivery of this monster notion
only needed the coming of the MONDAY of the con-
C,ygated councils of this nation in whose presence
tIe egg is broken and out comes a bird. one of
whose claws was large the trunk of a large
uee'
amid the spasms and the throes of this extraOr
binary production should be at a loss TO solve the
problem of Its existence not apprsed of the
mystery by its author. This question:" he says
"lOrCcd itself upon me Does the Constitution vest
in body of the exclusive power to make
laws for the nation and at the same time vest in
another body of men the power to annul them ~ "1O
this afirmatively,' he tells us, as the Su
prcme Court in effect claims it should be answered
presented to my mind a sOecSm as well as so grave
cn mputatiOn upon the leQalGcumen and common
OF the trainers of the Constitution that l was led
from this point into examination of the uhOIe sub
ject.s
The answer to this question is direct negation to
all its parts:
First: The Constitution does not vest in one body
Of men the erclurs pOuer TO make laws for the Pres
ilcnts sanction is given to all laws not only those
made with his unreserved approval, but those as to
which he has interposed his veto if repassed by two
Il rls of each branch of Congress, as provided in
the seventh section of the first of its articles.
Second: The Supreme Court never, in effect or
otherwise has claimed the power to annul law
The fundamental positions taken by the Supreme
Court are to be seen in its own language quoted by
The Senator
1T emphatlcaly the province and duty Of the judi
cal department 10 say what the law s Those who ap
l, the rule TO particular must OF necessity
zach other the Courts must decide the operation OF each
u law be in opposition to the Constitution, II both the
5t the Court must either decide that conformaby
To- tho Constitution disregarding the law the Court must
dermne which Of these eonaietqg rules governs the
What is the comment on this clear exposition of
Tie judicial power of the Government "Tbe in
iral proposition" the Senator says, while true in
sense, is not applicable to the question. court
may decide whether what purports to be statute is
,a form legal enactment, and TO that ertent may say
what the statute law is; but beyond that its function
merely to expOund and interpret the terms of the
statute. The Congress is composed of Senators and
representatives each of whom is sworn to support
lie Constitution. Authorized by the people to exer.
rise their highest sovereign attribute, they are
thereby invested with the sole and exclusive capacity
aud right of judging aud determining the necessity
sud prOprety of any law, without appeal from their
decision, save to their constituents. This is too
pain proposition TO need more than its statement;
aud the conclusion arrived at from his statement is
declared 10 be this The passage of any bill, there
fore is of necessity a legislative judgment of both
houses that it is constitutional Judgment de jure
ana de faco rendered by tribunal having exclusive
Jurisdiction of the question in the first instance and
competent 10 render it, Was there ever greater
Ignorance displayed of the position lquoedl of the
supreme Court II declares its province and duty
10 be- first to say what the law il, and, having so
lone if two laws conflict with each other to decide
on the operation of each.'
l. not the Constitution law. and a supreme law
Does il not so declare itself to be in its sixth article
But are laws enacted by Congress, because OF such
enactment, necessarily supreme lawsi Ihe language
of the Constitution denies this careless groundless
Insertion. The words are express. that the laws
assed by Congress to be supreme laws shall be made
=. in pursuance of the Constitution" Who is to de-
cidef The Senator, denying the power Of the Judi
cal department it solely to the Legislative
department and for what reasOn' Because, as he
asserts they are authorized by the people to exer
else the highest sovereign attribute without appeal
save to their constituents
The answer to this mere assertion of the Senator
Is again a negation. Who can show that the power
of enacting laws is higher, more sovereign attr-
lute than the power of deciding upon their consttu
tiOnalitYf
n this idle question were raised it might be said,
on the contrary the enforcement OF the laws its