The Washington herald., 1911-08-01

cases. and forth. and that the reason Of this
bad behavior is due to the fact that the Judiciary
Is not responsible TO the people either by election
or recall.
Interests Favored by Judges.
''The right Of recall Of Judges is all
the more important" asserted Senator
Owen, when we recognize the fact that
the big interests Of this country have
taken infinite pains to bring about the
nomination and promotion as Federal
judges of those whose opinions were
known to be favorable to their point of
view" go
In support Of this assertion, Mr.. Owen
cited a large number Of cases wherein
State laws in Texas, Kansas, Minnesota,
Oklahoma, and other Commonwealths
which had been enacted for the purpose
Of compelling corporations to contribute
their share to public maintenance. had
been nullifled by Federal judges. He was
especially severe upon the Supreme Court
Of the United States for its decision
against the income tax, for emasculating
the interstate commerce law. and for its
recent antitrust decision. He quoted JUS
tice Field as saying that the income tax
was IAN assault upon capital" and JUS
tice Brown as saying that the decision
was the first step toward the despotism
OF wealth. The constant tendency Of the
Federal courts, he said, had been to sus-
tain property rights as against human
rights. 1t was not, he said. that corrupt
men were put upon the Federal bench,
but their point of view was like that
of Judge Field-they were always ready
wealth and, therefore. to be declared un-
constitutional
Judicial InfaIlibflfty.
Senator Owen was sarcastic in his ref
erence TO judicial infallibility. He char
acterized the theory as "a Tory argu-
ment." and said that every justice upon
the Supreme Court bench had been de-
clared fallible, because at some time he
had been upon the minority side.
1T has always been the habit Of kings
and potentates," said Mr. Owen, sarcas-
tically. ito surround themselves with
pomp and ceremony to impress the mass
Of men with their sacred function. They
have always claimed to receive the right
to rule from God himself, and to rule by
divine right. The Judge in ancient times
wore huge horsehair wig. silk gown, and
ermine. 1t impressed the people with
the enormous dignity of the individual
so attired. 1t raised the presumption of
his infallibility. 1t excited the rever-
ence OF men. and so those who have
found their shelter behind judicial
oligarchy have impressed tremendously
upon the people of this country the idea
of judicial infallibility. We are taught
that We should reverence the courts;
that We should not question their Judg-
ments. and when the Supreme Court OF
the United States has spoken IL should
no more be questioned than We should
question the word OF God.
Il believe that the people should be
taught to reverence the judicial branch
of the government, and believe the Judi
cial branch Of the government should be
so framed as to merit reverence. l have
a reverence for government. 1 have a
reverence for the judiciary. 1 have a
great respect for the judges on the bench,
yet 1 should not hesitate to vote for the
Impeachment of corrupt judge, nor
would hesitate to vote for the recall of
a judge who merited recall or a Judge
who regarded an income tax as an as
sault on wealth. The theory of judicial
has the same meritorious
of truth as Santa Claus. 1t
Is a pleasing fiction suitable for very
young children"
Exercised without Authority.
Senator Owen contended that the Fed
eral courts had no authority to pass upon
the constitutionality of acts of Congress.
The constitutional convention, he said,
had been asked four times to provide
that the Supreme Court should pass upon
the constitutionality OF acts Of Congress,
and the effort had failed, not more than
three States voting in the affirmative.
He said that If the provision had gone
into the Constitution, that document
would never have been ratified, land
yet," he added, the Supreme Court has
assumed, without constitutional warrant,
to declare acts of Congress unconstitu-
tionaL The Constitution is one of dele
gated powers and It does not delegate the
right to declare statutes unconstitutional"
Mr.. Owen devoted some time to dis
cussion Of this phase Of the subject,
showing that no republic has given its
courts the power to review the acts of
its national legislature, while in Mexico
the constitution expressly forbids the
courts from declaring unconstitutional
any act of the Mexican Congress. In
England, he said, a chief justice was
hanged for high treason because he de-
;lared an act of Parliament invalid.
He also quoted Chief Justice Marshall |
IS declaring that judicial authority can |
nave no right to question the validity of |
l law unless such Jurisdiction is expressly |
given by the Constitution. mo one pre-
ends" said Mr.. owen, that the juris-
liction is expressly given by the Con-
stitution.''
DISCRIMINATION CHARGED.