The representative. [volume] (St. Paul, Minn.) 1893-1901, 1895-04-24
For Twelve Years They Did Not
Dare to Declare Any Act I'm
constitutional.
JEFFERSON HELD THAT THE COURT HAD
NO POWER TO OVERRIDE CONGRESS-.
How the Tory Element Took Pos
session of the Court and Used
Its Powers Against the Liber-
ties of the People.
Now They are the Final and Om-
nipotent Power and Self.gOv-
ernment Exists Only In
Name.
[From the Chicago Times-Herald.1

From the Chicago Times-Herald.1
The decision by the Supreme Court
of, the United States in the recent
"Income-tax" case is only one in
long line of decisions by that tribunal
wherein laws of Congress have been
declared unconstitutional wholly or in
part. The bench was constituted ty
the judiciary act of 1889, which provid-
ed for court of six Judges who were
appointed by Washington, John Jay
being the chief justice. The court
was organized in New York City. in
February, 1880, and from that day to
this has held it's annual sessions at
the seat of government, first New
York, then Philadelphia, then Wash
ingtOn.
Under the administrations of Wash
ington and of Adams, that is during
the first twelve years of the courts
existence, the judges carefully avoid
Ell the question whether they could
declare an act Of Congress as being
repugnant to the constitution. 1t
was urged, and very plausibly, as
against the exercise of such judicial
power, that the three departments of
the government, the executive, the
legislative and the judicial, were CO.
ordinate and equal, and that one
could not override or declare null the
action of the others.
Such was the ground that many of
the early statesmen held. Jefferson
h0v CT
tion of the power by the court it has
been maintained that each depart
ment has still the right to cons true
the constitution for ITSELF and such
has been the attitude of several of
the Presidents when the emergency
has arisen. But the people have gen.
orally acquiesced in the theory that
the supreme court is the ultimate
arbiter Of the cOnstitutionality of an
act of Congress or state Legislature.
Since 1901 it has exercised the power
in some two hundred cases, in twenty
one or twenty-five of which acts of
Congress have been nullified, and in
the remainder acts of Legislatures
and municipalities.
One of the last acts of John Adams
as President was to appoint John
Marshall chief justice of the supreme
court, who took the oath of office, Jan.
81, 1901. Jefferson was inaugurated
President, March 4, 1901, and thence
forth, not only through Jefferson's
presidential term, but until his death,
these two men stood face to face in
battle over the construction of the
constitution. Jefferson was deter
mined, so far as he was able, to re-
strict the powers of the national gov
ernment in favor Of the people and of
the states, while Marshall was equally
determined to construe the constitu-
tiOn so as to enlarge and centralize
those powers. They were no sooner
seated in their respective chairs than
case arose that gave Marshall
chance to make the first onslaught.
In the closing hourse Of his admin
istration John Adams made many az
pointments, filling every existing va
cancy with federaliSt. 1t SO hap
pened that some Of the commissions
out and signed. These remained in
the secretary Of states Office, where
Jefferson found them when he took
possession, and he ordered them to be
withheld. One of these was in favor
Marbury, and at the next term of the
supreme court, in December, 1901, he
moved the court for writ of manda-
mus against John Madison, secretary
of state, commanding him to deliver
the commission to the plant. If. This
is the celebrated case of Marbury
against Madison, and it contains the
first authoritative announcement by
the supreme court that it has the
right as we'll as the power to declare
null and void an act of Congress in
violation of the constitution 1t was,
in fact. a lecture to Thomas Jefferson
as to his duty, and that he should de-
liver the commission to Marbury as
matter of justice, but it wound up by
saying that as the court had no juris-
dictiOn over the case, it could not is
sue the writ of mandamus. Conse-
quendly Marbury did not get his COM
, mission, and the result was drawn
battle. While the decision, there fore,
is mere obiter dictum, it esta blished
principles which have never since
been controverted, and which lie at
the bottom of many subsequent
cases.
Jefferson looked upon the opinion as
defiance to himself, and he lost ne
opportunity Of showing his hostility
to the federal courts. Through his
Influence one Of the judiciary acts
was repealed, and sixteen of the So
called midnight judges" were
thrown out Of their places. Two OF
the federal judges were impeached.
one being convicted, while the other,
Justice Chase, of the supreme court,
vas acquitted.
But Marshall was secure and to the