New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1876-03-29
A DEAD IAW.

One hole is enough to spoil balloon. The
Supreme Court finds but one hole III the En-
fOrcement act, but that one is quite enough
to make the entire act pOwerless and pracu-
cally weld. For it is flaw in the sections
which prescribe penalties for the commission
of offenses. In the decision of the Kentucky
case Sections and of the Enforcement act
are held to be unconstitutional on the ground
that, upon strict construction of their terms,
they impose penalties for acts which the pre-
yious sections of the act had not declared
offenses, and which Congress had no cOnstitu-
tional power to declare Offenses against the
United States. The Court hold that, being
defective in this particular, these sections
are unconstitutional and therefore invalid
In every particular-that the courts have no
power to say that provision which III any
respect violates the Constitution still has
validity to some extent, or to determine to
what extent. The objection is narrow and
sharp one, but it punctures the act effectively.
The difficulty is only that these sections were
not so worded as to limit the penalties I'M
posed to the performance of acts which can
constitutionally be made Ofenses against the
United States; but that difficulty is fatal The
Court has no power to legislate-to rcmake an
act of Congress. In the singularly terse and
fOrcible language of Chief Justice Waite,
IL would certainly be dangerous II the Legislature
could set net largo enough to catch all possible OF
fenders and leave to the courts to step inside and say
who could be rghtuly detained and who should be set
at large This would TO extent substitute the judi
cal for the legislative department of the Government
The courts enforce the legislative will when ascertained
IL within constitutional grants OF power. within LIS
legitimate sphere Congress is supreme, and beyond the
control Of the courts bnt steps outside OF It's consul
tutional limitations and attempts that which beyond
it's reach the authorized to- and when called
upon In due of legal proceedings must annu its
enc Oachments upon the reserved power OF tie states
and the people To limit this statute in the manner now
asked for would be make law, not to enforce an
old one This is part Of our duty We must therefore
decide that Congress has not as yet provided by appro
pirate legislation for the punishment OF the oense
charged in the indictment.
This is one of the most remarkable and i'm
portant decisions ever rendered by the SUI
preme Court. 1t marks the commencement of
n new era in the exercise of legislative power
During and since the war. Congress has often
acted az if it were supreme, not merely within
but "OutSide of its constitutional limitations
For some error in this direction there was
much excuse. A powerful party persistently
tried to make the Constitution of the United
States the left wing of Lees army. The same
party had so construed the Constitution as TO
make it the bulwark of slavery. Public Opin-
ion recoiled. 1t not only rejected with in
dignation those constructions which would
have deprived the Union of power to de-
fend itself against armed rebellion, but,
with natural exaggeration, sustained Congress
in the assertion of its power, even after the
war, TO adopt any measure which 1t deemed
necessary for the public welfare. Then greedy
or malignant partisanship began to demand, as
necessary to the public welfare, measures
which were only needful for the maintenance
of unworthy or corrupt men in power OF
these measures the Enforcement act was one
of the most Odious. Under ii shameful abuses
have been perpetrated. No calm and reasona-
bic legislature would have failed to see that
such an act would invite the gravest abuses /;
no legislature animated by profound rever-
ence for the Constitution would have passed
so far beyond the limitations of its power
The passion which IN those days blinded
many eyes has somewhat cooled. Pablo Opin-
ion at last perceived that though enemies of
the Union had tried to prostitute the COnsti-
tuition to disloyal uses, still the Constitution
must be reverenced and Obeyed as the only
safeguard Of free institutions. A very large