The farmer and mechanic. [volume] (Raleigh, N.C.) 18??-19??, 1911-03-07

- attention dl bStNA -"
MI fac. concerning eul
| State Supreme Court
to-wit: THAT 1t was the first coui
in America to declare a ies1siati'e
az, unconstitutional" The bare state
ment of this fact tf 1t Is q lactl
did not concern me, nor 40 ! IilHn
it concerns but few others IL wa
the comment thereon that mace tHe
article particularly noticeable ana :
soon thereafter wrote the editor brler-
~ concerning the Democracy of Nr-
Cowper's views. That letter you pub
iished in the October Review. 20
gether with a reply OF MI. Co"per.
expressed some convictions th2t /
entertain, and / am glad to say tnat
In doing so I voiced the sentiment
OF a very large portion OF the tEi@el
ship of this n
The substance of my article was
that our courts nave the
powers of the Legislature and that a
judicial veto Is contrary to he pr1n-
ciples Of real Democracy. The reply
to what I had to say fails TO snow
that the courts have the constitutional
power to veto a legislative ACT put
the author seems satisfied to rest his
case upon the statement that this
power is a fixed" principle and for
a hundred years has been "acquiesced
in" AS to the real vital contention,
namely, that the veto power OF a
court, or of any authority as to that
matter is contrary to real Democracy,
he had not a word to say. He did say
some things that should not go I'M
challenged. What I shall say is not
said in a captious spirit. I am per-
fectly willing to have Mr.. Cowper
style me an "iconoclast." An iconoc-
last is "a destroyer Of idols" and If I
-. 0o ~or
that have been used as stumbling
docks in the way Of the progress OF
real Democracy 1 shall be happy.
Mr.. Cowper says that the right Of
the courts to set aside an act of the
Legislature is "a great fundamental
principle which has been fixed and
settled beyond peradventure. .
To say the least it is a late hour for
this doctrine to be questioned. I deny
that anything is fixed in a peoples
government except the right Of the
people to rule. The moment a thing
is fixed at that a popular
right is surrendered. Acquiescence is
the fundamental attribute of a slave.
This is not the first time that this doc
trine has been questioned. 1t has al
way been questioned. It was ques-
toned in the convention that framed
the Constitution of the United States.
1t is evident, I think, that if the
lIdIIltFS OIL the constitution represent
ing amajority Of the States had real
]y intended to give the courts the
power to annul a law they would have
sale So in direct language. OF course
if the Legislature should pass an act
that is specifically prohibited by the
Constitution it would be void. No one
questions hat. For example. if a
Legislature should pass an en- most
facto law it would be void beca~e
specifically prohibited. Acts of this
kind fall outside of the question. I
do not believe that the people ever de-
sired, or that their Representatives
ever intended hat the entail
low three, or five, or any number of
judges to create that condition Of
haos that the defenders Of the
judicial veto seem to dread so much.
Under u present practice no lawyer
knows what the law is, or if he knows
what the courts say it is today, he
does not know what it will be to-
morrow. To illustrator: In 1856 a law
taxing incomes was constitutional. In
1892 such a law was unconstitutional
and consequently no law at all. But
the case is much worse than that
The income tax law OF 1894 was good
law on one day and bad law the next
day because q judge changed his mind
1t is inconceiVable that withholding
the veto power from the courts could
possibly create the chaos and uncer-
= tainty that exists with the exercise
Of that power
We are .ravely reminded that the
right of trial by jury might be en-
dangered but for this assumed ore
negative of the courts. No .on be-
lieves that any Legislature would ever
destroy the right. It is a fact, how
ever. that Notwithstanding the risht
Of trial by jury is guaranteed by the
y 49, tio. tho =, lor-A
sion denied that right to nfen charged
with crimes. So that the constitu-
tional right Of trial by jury is defeat
ed not by the Legislature, but by the
judiciary.
But this is going afield from the
question. In the draft for a form OF
government by Mr.. Randolph and
submitted to the Constitutional con.