The Washington herald., 1907-09-27
An Attack on the supreme Court.

Chief Justice Walter Clark of the Su-
preme Court Of North Carolina. breaks
a lance in the old controversy as 10 the
power of the courts 10 declare void an
act Of a legislative body. He asserts
that the assumption by the Supreme
Court of the United States of power to
declare acts Of Congress unconstitutional
is without a line IN the Constitution
TO authorize it," which is perfectly true,
Moreover, as he shows, when attempts
were made in the constitutional conven-
ton Of 17S7 10 confer such power on the
Supreme Court they were emphaucally
rejected. From this historical fact Jus
tce Clark infers that the trainers of the
Constitution never contemplated that the
Supreme Court should exercise the power
of annulling legislation; and further
more. it is his opinion that if the con-
venton had dreamed Of any such thing
it would have given Congress some re
view over judicial action, and would not
have placed IN the hands Of an appoint
i've body Of judges unreviewable power
TO annul the popular will as expressed
in legislation. IF five lawyers can mega
tive the will OF 100000 intelligent peo-
pie" the North Carolina jurist remarks.
then the art Of government in this
country IS reduced to the selection Of
these five lawyers"
But the Supreme Court does not make
a business OF annulIing acts OF Con
gress. It strains every point in favor
OF the consttutionality Of Congressional
legislation, and its consistent policy IS
20 avoid conflict with the legislative
will, if any warrant, express implied,
OF constructive. can be found in the
Constitution for the exercise Of legis-
lative power that is called in question.
Many will think. as Justice Clark does.
that the adverse decision in the income
tax case illustrates the worst side of
judicial nUlliication of legislation, but is
not that counterbalanced by many other
instances in which the court has held
with the legislature on grounds of pub
lie policy when a strict construction OF
the Constitution would have led to a
contrary decision? What of the 'insular
cases, in which our colonial adventure
was upheld. by every ingenuity of ju-
dicial Interpretation, even to the adop-
ton Of the doctrine of inherent powers
of national sovereignty the only one
consistent with the final opinion of the
court? Conservatives would be only TOO
glad if the Supreme Court would annul
vast deal more legislation than it
does. They are now hoping that the
so-called Roosevelt measures will be
sQuelched by the court. but what chance
is there that they will be? Practically
everybody expects that the court will
find a way to square these measures
with the Constitution. It Is seldom. in
deed. in practice, that we find the Su
preme Court standing athwart the will
of the people, as expressed in IegIsIa-
ton.
1t may be admitted that the Supreme
Court has grown In prestige and au-
thority. as have Congress and the Exec
utive, by the exercise Of powers not lex
pressly conferred by the Constitution
The trainers Of the Constitution no more
COZ -emplated a Congress ruling subject
peoples in distant lands, or an Execu-
tive with authority exceeding that Of
any earthly monarch, than they did a
Supreme Court which has assumed at
various times to annul the acts of Pres
idents, Congresses, and States. But the
Supreme Court has proved a workable
institution, which. in spite of its power