The Washington herald., 1911-08-02
Supreme Court and Congress.

Senator Owens effort to secure the
recall of Federal judges through Con-
gressional resolution is not likely to be-
come a fact accomplished in the i'm
mediate future Leaving out of the
question all the objections which Mr..
Owen urges against the present sys-
TEN, it is stills difficult to see how he is
10 overcome the constitutional provision
that Federal Judges, when appointed,
are to continue in service during good
behavior.
There is one feature of his speech,
however, which is quite unique Sena-
tor Owen asserts that the Supreme
Court of the United States has no au-
thority TO pass upon the constitutionality
of an act of Congress. He shows that
in the constitutional convention an eff
fort was made four times to invest the
court with this jurisdiction, and each
time it was defeated. Not only did the
Constitution go to the States for rati-
hcation without this provision. but Mr..
Owen asserts that # such a proposition
had been incorporated in the document
il never would have been ratified. In
addition to this, Chief Justice Marshall
declared in one of his opinions that
judicial authority can have no right
10 question the validity of law unless
such jurisdiction is expressly gwen by
the Constitution In the absence of
such express grant of authority, the
Supreme Court, Mr.. Owen insists, has
usurped power which does not right
fully belong to it.
Tie c"estion is curiously coincident
with Representative Berger's old-age-
pension bill. which incorporates a pro-
vision which distinctly exempts the pro-
posed law from being reviewed in the
courts. This is in line with action
taken by Congress in 1868 when it
passed a law forbidding the United
States Supreme Court from passing
upon the constitutionality of the recon-
struction act. The court recognized and
respected the prohibition.
Il you'd have made a vast difference |
in :he history of our country if the |
Supreme Court had never been called i
on to decide upon the constitutional |
ity OF Congressional enactnents. Alex |
ander Hamilton, in his Federalist let |
tiers, discussing the judiciary, admitted |
that eventually the courts would have to |
decide upon the constitutionality of |
laws, and he endeavored, somewhat |
vaguely, to prove that this would not |
give the judiciary superiority over the
legislative branch. Hamilton, indeed. |
was inclined to minimize the power of |
the courts. His view was set forth as
follows:
Whoever attentively considers the
different departments OF power must
perceive that, in a government in which |
they are separated from each other. the
judiciary. from the nature of its func-
tionS. will always be the least danger
Gus to the political rights of the Con-
st!tution, because it will be least in
capacity to annoy or injure them. The
Executive not only dispenses the honors,
but holds the sword of the community.
The legislature not only commands the
purse, but prescrlbes the rules by which |
the duties and rights of every citizen
are to be regulated The judiciary, on
the contrary. has no influence over
either the sword or the purse; no di-
rectIon either of the strength or of the
wealth of the society, and can take no
active resolution whatever. 1t may
truly be said to have neither force nor
will, but merely judgment, and must
ultimately depend upon the aid of the
executive arm, even for the efficacy of
its judgments"
Hamilton believed that if a particular
statute contravened the Constitution it
would be the duty of the judicial
tribunals to adhere to the latter and dis
regard the former" He did not see,
apparently, that in carrying out This
idea it would inevitably lead to elevat-
ing the Judiciary to the pinnacle of our
government-that the judiciary, origi-
nally placed third and last in our ma
tional structure, would eventually domi-
nate both the legislative and the execu-i
tive He did not seem to realize that
the pivot of our government would fn-
ally be the Supreme Court, and not the ;
White House or the Capitol. He did {
not anticipate that the judiciary would /
undertake to nullify the action of the |
legislative branch, nor that it would
regulate the authority of executive Off
cials by the exercise of the power of
Injunction. I,
II has happened, however, that in the
evolution Of our government the last has
become first II is equally apparent
that the condition cannot be--and. in
deed, ought not 10 be--chanped In .