The Bennington evening banner. (Bennington, Vt.) 19??-1961, 1911-11-23
crIticisino the Courts

thing of a Burlingtonian, discusses In
the Atlantic with admirable modera-
ton and foresight the problem OF
criticising the courts. In the early
DAYS of the country, the courts were
not regarded as quite the sacred and
remote institution that some people
would make OF them today. Jeifer-
son wrote of them. THE Judiciary
of the United States is subtle corps
OF sappersand miners, constantly
working underground to undermine
the foundations of our confederate
fabric" Nor were their utterances
in constituting the constitution always
accorded anything like that finality
which-when they are settled beyond
the possibility Of reversal-all men
now will concede them.
President Jackson claimed that
either of the other two branches OF
government could give its own con
struction to the constitution withou,
being bound by that laid down by
the courts, and it was only after
years of criticism by Calhoun and
defense by Webster that the princi-
ples laid down by Marshall became
supreme. Furthermore II was pre-
oisely because of that extended crit
icism and defense that those princi'
ples became so we'll grounded In the
common consciousness that not only
LAWYERS but everyday men knew
them and their value and were will
ing to fight for them in the time
when they must be fought for or lost
In fact II was not until the memoir
able court criticism of Lincoln that
men began to say that the judiciary
was too lofty and its utterances toe
conclusive to allaw criticism OF 1t TO
be anything but an insufferable az
front. When fancy and his colleag
ues decided the bred Scott Case
slave holders buttressed themselves
behind that decision feeling that at
last they had the final word; and
Lincolns unrelentirg attack called
forth a stringent protest
I'VE believe" declared Lincoln
"as much as Judge Douglass, perhaps
more. in obedience to and respect
for the judicial side of the govern
msnt. We think its decisions on con.
stitutional questions, when fully set
tied. should control not only the par
ticular case decided. but the general
policy OF the country, subject to be
disturbed only as provided in that in
strument itself. More than that
would be revolution. But we think
the bred Scott decision is erroneous
We know the court that made ii has
often overruled its own decisions and
we shall do what we can to have II
override this
Douglass contended that the attack
on the particular decision constituted
an attack on the whole judicial sys-
TEN, Nand created an issue between
the friends and the enemies OF the
supremacy OF law
The particularly valuable part OF
Mr.. Ayers article is that in which
ho analyses present movements and
contends that there is at present a
deep lying conflict and tendency 70
stretch the constitution into a bull
wark to set back the drift of things
and prevent the country from facing
and solving in a constructive way a
tremendous problem which condlt
ions make II imperative TO decide.
The problem is how to check and
adapt an order OF rampant individu
allsm, at conflict in its outworkine
not only with our national ideals but
with our standards of humanity. In
the eighteenth century a school OF
thinkers, Quesnay and Adam Smith
developed what they called the lais
sgg.iaire doctrine OF government; tn,
hands OFF doctrine. with for its mot
TO He governs best VINO governs
least This doctrine was profess
aeanst the selfish rule Of kings. at
as ii released the inhabitants OF I
county from rules curtailinP thcil
liberties for the benefit of selfsl
/ kings. il was a benefit, but In so fai
rs u released them from laws cur
failing their liberties for the benef
oil one another II has resulted h
great harm. Tricky settled coun
tries were not long in experiencing
/ the evil of this theory and very sool
threw II over. In America, however
as long as the country needed some
thing to drive men out to settle tn
new parts. II worked well; II a MAJ
became so overbearingly prosperou
as TO be oppressive to his neighbor
they could easily go west" Blu
now with more thickly settled. IN
dustrially active, country, and part
cularly with the device OF the corpo
| auon-under which the combine
wealth and brain and ability OF man
men are enabled TO masquerade b,
fore the law as one person-th
laisse2.faire doctrine breaks down
We need as wide a right OF regulatio
OF the individual for the good OF IN
many as the constitution will ADM
The great merit OF Mr.. Ayers a
ticle is that Il warns against usin
the constitution. not as broad guild
OF conduct but as something whlc
can be stretched and moulded Into
weapon for presgr,4lg The eXistin
rule irrespective Of how condition
may change When we suspect
court Of doing that we are entitled
stand up and cry out to the men {
our time as Lincoln cried out to IN
men Of his-free Press Burlington