Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1891-03-22
JUDICIAL LEGISLATION.

While the disappointment and perplexity
caused by the Supreme Court rulings on the
street cases have produced some unnecessarily
pessimistic views concerning the influence
OF that body upon legislation. it is the fact
that the muddle naturally suggests refec-
tions on the growing tendency OF courts to
make legislation by a process of exclu-
sion, simply through the decisions of the
| courts.
Law ought TO be, under our system of
| government, an exact science. With writ
ten constitutions defining the powers and
| limitations of Legislatures. and statutory
enactments expressing the legislative de-
crees, the expert legal mind should be able
to determine the validity of municipal act
as unerringly as the expert mechanical mind
can determine the stability of wall or the
strength of piece of machinery. Yet, in
! this case, weare confronted with the fact that
most of the best legal minds are entirely in
error concerning the validity OF the street
| legislation, and that at present there is a
profound morass of uncertainty as to what
can be done to remedy the situation in ac-
cordance with the views of the Supreme
! Court.
Much of this uncertainty is DOUBTLESS due
to loose legislation; but it is very much
!, complicated and aggravated by the disposi-
tion of courts to pass upon laws, not in
accordance with stated and definite rules,
but in accordance with the judicial pre-
disposition for or against the given legisla-
Ia L.
means the most signal examples of this ten
dency. They are based on the judicial idea
that under the system of assessment which
they overthrow practical injustice was
afflicted, the fact being that the method of
assessment was virtually one that had been
maintained for generation. The Penn
avenue cases afforded an example of another
sort, in which a plan of street improve
ment, in its general details the most equi-
table ever devised, was completely wiped
out. The hardships which these decisions
were intended to prevent are as nothing to
the hardships which they Infiict. The un-
certainty of the judicial ruling is also dem
standing will to-day give written guar
antee that any of the proposed curative
legislation" will run the gauntlet of the
Supreme Court.
A more marked illustration of the same
tendency is found in the United States
Supreme Court decisions on interstate COM
merce cases. That body has given out a
group of decisions in which the principle is
asserted that State legislation cannot under
the Constitution regulate that immense and
somewhat indefinite mass of transactions
known as Interstate commerce. To main
tain that principle they have had to reverse
the rulings of some of the best jurists that
BODY ever contained, and even some OF the
members of the court have had to take back
their own opinions in former cases Yet
when we come to search the Uuited States
Constitution for this alleged prohibition we
not only fail to find it, but actually find a
direct expression of the intention that the
States shall exercise regulation over some
departments of interstate commerce, in con-
formity with national legislation.
The idea of making legislation or consti-
tutions the edicts of courts, may be an in
heritance from the common-law practice of
making law by preeedentsi but 1t is not
in accordance with our system of govern
ment. The division of powers under our
system is distinct. The representatives. of
the people are to make the laws, and if they
make bad laws the people have the remedy
in their own hands. The executive is to
carry them out whether good or bad; and
the courts are to construe them with refer
ence to the Constitution. Under such d.
vision of powers it is as dangerous for the
courts to 60 outside the definite rules of con-
struction as for the Legislature to disregard
the constitutional limitations. Perhaps the
courts may be wiser than the Legislature
with regard to certain classes of legislation;
but when they undertake to make or un-
make legislation. they destroy the balance
of the Government, and plunge US into the
uncertainties that are sufficiently exempli.
fed by original package and street de-
cisions