The Washington times., 1906-03-08
Senator Bailey'S Theory.

Senator Bailey of Texas is widely
reputed the greatest constitutional
lawyer in the Senate; and the contri-
button he has just made to the dis
cussion of the difficult legal phases
Of the rate regulation problem justi-
fles this reputation. The Texas Sen
ator has once more demonstrated that
constitutional lawyers can often gain
useful information by reading the
Constitution.
From the beginning, the real prob
lem in rate legislation has been to
keep the Federal courts from undo
ing the work of Congress. This is
the bald fact. To frame a law Civ
ing commission of experts power
to fix rate was one thing; to frame
1t so that it should prevent the courts
suspending that rate on the merest
intimation of railroad company that
its constitutional rights were en-
dangered was another. From the
beginning this has been the sticking
point
The lawyers of both House and
Senate have accepted. and the public
has accepted, from the beginning, the
contention that the power of the
courts to eDjOin an invasion of con-
stitutiOnal rights was fundamental;
that it was granted by the Constitu-
ton. 1t became, then, a problem of
how so to frame the measure as to
coddle the courts into giving it
chance. That all the predictions
of the courts would tend toward the
railroad view of the case has been
universally accepted, unquestioning-
ly admitted.
But now comes Senator Bailey,
fresh from a reading Of the Constitu-
ton, and broadly declares that Con-
gress is greater than any court ex-
cept the Supreme Court 1t has
power 10 limit the equity Jurisdiction
OF the inferior courts by statute It
can say, if it chooses. that the courts
inferior to the Supreme Court shall
not have the right to use the injunc-
ton in given cases. And in this
case, il ii chooses, Congress may pre-
scribe such limit TO the power of
the court in handling i rate case.
Only one Federal court is provided
by the Constitution. That instru-
ment says that the judicial power
OF the United States shall be vested
in a Supreme Court and such inferior
courts as the Congress shall from
time to time ordain and establish. !"
Congress did not make the Supreme
Court But it did "ordain and estab-
hsh" the inferior Federal courts; and
the creator is greater than the crea-
ture. Congress has power, then, ac-
cording to Senator Bailey. to deter
mine the part these inferior courts
shall take in guarding Constitutional
rights, and the processes by which ii
shall do this. 1t may, if it chooses,
forbid the employment by them of
the process of injunction In such
cases as those contemplated by the
rate law.
This is understood TO be the gen
eral view of Senator Bailey as he
mas set 1t forth, rather casually, thus
far. That it has a far-reaehing sig
nlncanee, not only as affecting the
rate regulation problem, but also in
respect to other and no less import
ant phases of Federal Jurisprudence,
need not be explained TO either law
yer or layman. The country has
grown into the impression that any
Federal court, anywhere, had power
to enjoin whom and whatever it
chose. The courts, by assuming and
exercising the power, have encour-
aged this belief Now, it is proposed
under this Bailey construction of the
fundamental instrument establishing
the Federal judiciary fatty to deny
this tremendous power; to set up that
such power shall not be employed
except when it is specifically granted.
II Senator Bailey has succeeded in
making himself fairly understood
thus far, and if he shall be able to
get his position sustained by the
Supreme Court. he will have made
most important and beneficent contri-
button TO the whole great problem of
the jurisdiction of our national judici-
ary, as well as to that of rate regu-
lation