Tulsa daily world. [volume] (Tulsa, Indian Territory [Okla.]) 1905-1919, 1911-09-19
Has the Judiciary USuped Powers OF
Legislation Never Intended For It?

lal decisions, the courts have arrogat"
ed 10 themselves power not dele
gated by the constitutions a power
that has already become grave
menace 10 the Nation aud It's Ideals
The subject, however, IL one not 10
be disputed with "A man Of lesser SIN
ccrity than Judge Brennan. lie says
Articles betray an ignorance that
would not be confessed by an ordinary
school boy As | grope through the
MAKE OF Misunderstanding. And
again "A few elementary principles
Of constitutional law ought to be un-
derstood by the great metropolitan
newspapers and magazine writer's
consider these unfortunate OBJ
seryations that Mr.. Brennan himself
would not have stand in the record
had he given the text Of his letter clos
or scrutiny; for it is an assumption
that the thought presented by the
editorial writer Is a child of ignor-
ance, while the defense by learned
counsel is prima facie evidence Of
great erudition. A conclusion that
is entirely unsupported by fact or
logic.
The whole subject under discus
sion resolves itself into this simple
proposition: Does the supreme power
Of our government center in the ju-
dietary? II It does, then the right
Of the court to set aside legislative
euactments by an arbitrary ruling
follows with all the fatality of cold
logic. If 1t does not then the judic-
larry has arrogated TO itself power
that it can not maintain under the
constitution.
Judge Brennan says: "What tri-
bLnal shall say when Congress has
exercised more than the power dele
gated to It?
My answer is that certainly no tri-
bunal Of lesser or even coordinate
power can do so. To justify the right
of the judiciary to exercise this au-
thority 1t Immediately becomes nee
cssary to find either its right in the
constitution to do this thing or its
right by the possession of superior
ability to exercise this grave power
The one is as impossible as the other
| suspect that 1t is this false sense
of responsibility ever present with
the judiciary that has brought about
the condition existing. Can a pro-
posed act of the Legislature receive
judicial consideration only at the bar
Of the court? Is it to be argued that
the supreme legal power of the Ma
ton reposes In the bench of the Ma
ton?
The comprehensive scheme of gov
tained its present position is COM
posed Of three coordinate branches
the executive, the legislative and the
judicial The word coordinate means
If it has any meaning at all, that each
of these branches of government are
equal in power. That means that no
one is superior to any other. And
that means that no one may over
ride the judgment of the remaining
two. But It is done, almost every day;
certainly many times every year. And
it has been done ever since the fa-
nous decision of Mr.. Chief Justice
Marshall when he performed the rare
feat, but since become quite common,
of reversing himself and arrogated
to his tribunal the right to say when
an act of the legislative, though ap-
proved by the executive, should be-
come a law.
1t is absurd.
our government, It mas been well
said, is government by parties, or
political organizations. Through these
mediums the action of the citizenship
is directed. There are certain over
shadowing issues in each campaign.
The people succeed in sending to the
congress majority favoring the en-
actment of specific law. 1t is
draughted. In the consideration of
that law. If not in its draughtlng,
there is legal ability the equal of any
thar ever wore the ermine. | assert
without fear of even formal contra
/ diction, that there has not been a
Congress from the first to the present
/ one. in which there was not present
legal ability the equal Of any that
occupied the bench contemporaneous-
/ ly. The constitution Is for the guild
ance Of the legislative and executive
no less than the judiciary.
The first consideration given any
proposed legislation is its relation TO
! the basic law of the Republic-the
| federal constitution. There Is never
a time from Its inception up TO the
moment It receives the signature of
the presiding officer of the body
through which It has passed, that this
Is not an ever present consideration
Nor does concern with It's constitu-
tionality rest there.
Having passed the legislative
branch Of government 1t goes to the
executive. Here It is subjected to the
most comprehensive machlnery-ma-
/ chinery filled with checks and re-
straints and balance and safety valves
II the bill embodies new legislation
in any sense Of the word, then II Is
the subject Of cabinet session. II is
/ picked to pieces, taken apart. re-
assembled. and always the test ap-
piled Is the constitution Of the United
States. II goes to the attorney genera
for judicial consideration. He meas
ures 1t by the federal constitution
And when the executive finally comes
To act on ito either yitalize II by
his approval or to give It It's quictus
by his dlsapproval he applies the yard