Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1884-02-15
THE uIGHEsTHUMAN SOVEREIGN
Ti.
The Judiciary, How Limited

State Legislature, much less either branch
OF the legislative body-the House of Repre-
sentallves or the Senate. 1t is not the gov
ernor OF State or the President OF the
| United states. Neither the governor nor
the President are any thing more than the
| administrators and executors of powers de.
fined and entrusted to them. Nor any more
is the highest human authority the Supreme
Court. The court has only limited authority
and this not to enact, frame or make laws, but
to declare that O law has been rightly or cou-
sttutiOnally enacted and void If net so en-
acted. The only sovereign authority, we say,
is the people, and the cearest expression
OF this authority is the will of the people,
declared in the constitution or by vote in
harmony with Its provisions. Hence The
preamble OF the constitution Of the United
States begins. ave the people Of the United
states do ordain and establish" And
this beginning and implication ls in har-
mony with that class in the Declaration of
Independence made two years earlier than
the constitution, that all Just powers Of gov
ernmcnt are derived from the Consent OF
the governed"
Extreme Jealousy has been shown through
out our whole history, colonial, confederaied
and united, SOUTH in Virginia and the Caro-
mas, as well as in New England and the
NORTH. All asserted and maintained this
| principle both as an idea and a rule OF legis-
allon md practical life that the people arc
supreme; that their will is the basis of gov
ornment, their will embodied and enacted by
representative legislators Is the law OF the
!anu' Nothing human is superior TO it.
This jealousy, we say, like line OF light,
runs all through our history in the church
and in the state. In the Federal Con-
gross, where the object wes to form a
more perfect union and ratify the bond that
should bind all the people together, and
when the constitution, in its departments
and forms was under debate, and in the pro-
cess OF formation, this principle was most
distinctly asserted and carefully guarded.
All propositions that would jeopardize this
principle, as well as all that were designed to
deny it, were sedulously voted down and
denied any place in the constitution. In this
Congress Pnckney and Rutledge of South
Carolina made most earnest effort to en-
graft upon the constitution that the first
branch OF the legislature, the House OF Rep
resentatives, should be chosen by the states
and not by the people. To this Wilson of
Pennsylvania protested. vigorous author
ity,' he said, should flow Immediately
from the legitimate source of all authority,
The people" Again, The election of the
llrst branch Of the people is not the corner
stone only, but the foundation Of the fabric. >
hamilton ana Mason supported this view and
this is the one wrought into the frame of the
government. The constitution itself was re-
ierred to the people to be adopted and MT to
the States.
80 whcl the propositions respecting the
IJudiciary were brought forward, Mason,
| Madison and others, according to Bancroft 5
| History of the Formation OF the Consitu-
ton persistently desired to vest in the Su.
preme Court revislonary power over the
acts of Congress, with an independent mega
tive, or Negative in conjunction with the
executive To this Mercer replied tine
judiciary ought TO be separate from the legis,
ature and independent OF it, Mercer, dis
approved of tue doctrine that the judges
should as cXpostors of the constitution, have
authority to declare law void" The mo-
ton Of Madison supported as it was by his
weight Of character in the Congress and
| seconded by able advocates, carried only
| three States, Maryland, Delaware and Vr-
ginia So the Supreme Court was
denied all authority to legIslatc or
enact laws. At the same time it
was made the 'bulwark Of lin
| tied constitution against legislative Gu
| croachments.' The court itself like the leg
islaturc and the executive is the creation of
the people and subordinate TO the consitu-
| ton which is their organic law. 1t follows
| then, that every opinion or judgment of the
court contrary to the constitution is void.
| II an act of the legislature at variance with
the constitution is void a decision of the
Supreme Court at variance with the consti-
| tuition is equally so. Things that are equal
| to the same things are equal to each other"
| "Ihe prior act OF the superior" says Ban
croft, must be preferred to the subsequent
| act Of an inferior, otherwise it might trans
| form the limited into an Unlimited consltu-
| ton. When there is a clashing between q
decision OF the court and the constitution, or
| the will Of the people clearly and legally
declared, the latter and superior must make
void the former and inferior. The supreme
authority must prevail over all delegated
and interior power Otherwise not only is
the constitution subverted but the very spirit
| that enacted it, violated. A decision of the
Supreme court settles nothing except the
case in point. 1t does not prohibit further
legislation. 1t binds neither the legislature
nor the executive.
volved has lately TRANSFERRED in the State of
| Iowa. Some three years ago the legislature of
Iowa framed and submitted articles of
amendment to the constitution to the peo-
pie. These articles prohibited the manu-
tacture and sale of alcoholici liquors as
beverage. The people, at u special election
adopted these AIT ,cles by the overwhem-
ing majority Of more than thirty thousand.
The legislature in framing the articles Of
amendment, and the people in adopting
them, clearly intended to declare their will
and the public policy of the Slate in relation
to alcoholic liquors. But some of the citi-
zsns OF Iowa hating and resisting this
policy managed TO bring the matter before
~ nf la
the amendments submitted TO the people
were not properly passed in the Legislature.
The court took up the matter and found that
the amendments passed by the legislature
and properly submitted 10 the people diff
Tered IN word or two, more or less, passing
the House aud the Senate. In other words
The amendments passed IN the House and in
the Senate were not precisely identical. |
They dilIer, however, only in word or two. |
and not at all in intention. On this merely |
technical vcrbal-perhaps clerical error, the |
Count declared the amendment void. So the |
will OF the people, intendin. to fix the public |
policy OF the State, was denied and defeated. |
Thus the judges have practically approved |
the doctrine that Mercer, in the Federal
Congress, AS above quoted, disapproved, and
rs eXpositor of the Constitution made void
he highest law. But the people OF the land
wiser in their good sense" as Bancroft SAYS,
than the judges alone, because they include
within themselves the wisdom Of the Judges
hemselves,' do not confess defeat but only
for Il time. In the September
Election last fall the utility and the equity
md the constitutionality in fact of this
lecison was made the basis Of a
allying cry against the decision.
The leaders of the people made prominent
he fact that the court had clearly made a
mistake and violated the spirit of the con-
titution in their decisions. They had made
'oid the expressed judgment of the people
,ivcn without respect to party and by such
IN overwhelming majority in 1882. The {
riends of prohibition triumphed in this :
contest by large, If not increased majorities
fence Governor Sherman in his inaugural, | I
ONE two weeks since, urges the legislature :