The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-03-28
The Destruction Of Judicial Power

One of the most eminent constitu-
tional lawyers in the country writes to
us as follows with regard to a tentative
suggestion the other day that if Senator
BAILEY's amendment should destroy In
the inferior Federal courts one OF the
judicial powers necessary to the pro-
lection Of the citizens against deprlya-
ton OF property without due process of
law, that necessary judicial power might
have to be exercised, Immediately and
originally, by the Supreme Court itself:
The suggestion that in the contingency mem
toned, the destruction of the power in Inferior
courts OF the United States TO afford in equity
preventive relief by lnterlocutOry and nnhl injunc.
tion-for the power TO destroy one Involves power
TO destroy both-the Supreme Court might, In the
exercise OF It's original Jurisdiction. protect the life,
liberty and property Of the citizen, requires couec-
ton, for the last clause OF Section 2, Article H.,
of the Constitution is as follows:
I'm all cases affecting Ambassadors, other pub
! lie Ministers and Consuls, and those In which a State
shall be q party, the Supreme Court shall have
oriofnal Jurisdiction. In all the other cases before
mentioned. the Supreme Court shall have appellate
Jurisdiction, both as TO law and fact, with such
executions and under such reg ulations as the Con-
gress shall make
1t was decided by the Supreme Court in MAR
! BURY persus MADISON MARsBALL. Chief Justlce)
that this original Jurisdiction. limited to two cases.
cannot under the Constitution be increased by
Congress"
1t is with difidence that We venture
further remarks on the interesting and
novel question of pure law raised by
Senator BA1LEY's amendment and dis
cussed by the correspondent whose COM
ment is printed above.
Yet it is proper to say that our tenta-
tive suggestion that the destruction by
Congress Of necessary judicial powers
in the Congress created lower courts
might perhaps transfer those necessary
forms of intervention directly to the
supreme judicial tribunal, whose exist
ence rests on the Constitution itself, was
made in full view Of the limitations as
to jurisdiction of which u correspond
ent reminds us; and also of the Supreme
Courts opinion in the case cited.
This line Of speculative thought was
prompted by the very interesting and
exceedingly important distinction which
Senator SPooNER is reported as making
between Jurisdiction, in the ordinary
sense of the word, and judicial power,
such as the Bailey amendment would
take from the inferior courts. We say
that Mr.. SPooNER is reported as making
this distinction; for as we write the full
text of hio speech on the subject has
not vet reached us in the Congressional
Record.
In this line we submit, still tentatively,
the subjoined considerations:
l.. The constitutional provision as to
due process of law is a restraint on the
legislative as well as on the executive
and judicial branches OF the Govern
ment, and cannot be construed as leav-
ing Congress free to make any process
it may enact serve as due process Of
law"
?. The Constitution vested all judicial
power in the courts just as 1t vested all
legislative power in a Congress and all
executive spower N q President. The