The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-04-06
In Facts WhereOn His Cam
paign Is Based.
Proofs Cited by Justice Burch
of Kansas Supreme Court
IN A VERY REMARKABLE PAPER
Shows That the Colonel Is
Plainly Mistaken
In Declaring Powers of Ameri-
can Courts Exceptional.

Colonel Roosevelt is evidently grossly
mistaken in an important statement he
recently made to the effect that only
American courts are entitled to declare
unconstitutional laws passed in the in
terest of the whole community.
This interesting and important error.
which has apparently hitherto passed
unnoticed, has been brought out by
Justice r. A. Burch, of the Kansas su-
preme bench, in a scholarly paper read
before the last meeting of the Saturday
Ni-ht club and entitled Constitutions
and Courts
Inasmuch as Colonel Roosevelt IS
basing his campaign to a large extent
upon specific criticism Of the American
courts, the fact that he is in error in
his premises is important.
The State Journal accordingly asked
portions of his paper. This was given
with some reluctance, Justice Burch
saying in the paper itself
I'm order to prevent any possibility
of misa pprehension desire to impress
upon the club that my purpose In pre-
senting this paper is in no Esnse con-
troversial. I merely hope to take out of
the air. as President Lowell would say.
and bring back to earth the discussion
of a single subject, interesting alike to
call attention to the very recent and
much neglected precedent set by the
people of the commonwealth OF Aus
tralia-"
Justice Burch said:
Under the political system of the
United States the courts have power to
determine, in pending controversies,
whether or not an act of the legislature,
which in terms governs the case. con-
travenes the fundamental law, and II 4
does to give judgment according to the
constitution.
THE result is that they are some
times called upon to decide between the
logical requirements of a written docu-
ment and the imperative needs of a liv-
ing people. The strain thus placed
upon the courts by rigid constitutions
which they feel bound to interpret and
to enforce has been very great and has
led to denunciation of particular deci-
sions, of particular courts, of the power
itself and of courts generally.
"A very distinguished lawyer of this
state in an address tofore the Okla
homa Bar association last year said:
There isn't a civilized country on
the globe in which the judges exercise
the power here claimed, nor one whose
people have asked to be sheltered under
such paternalt protection
'tMr. Justice Clark of the s,,n,ar-,
court of North Carolina. is reported a.
saying,
Such power does not exist in anv
other country and never has,
The same method was used by Col.
=. HooseveIt os IN an editorial in the Outlook
or march 8, 1912, in which he said:
Colonel RoOseveIt's Statement
In this article speak purely of the
kind of decision which only American
courts courts are entitled to make-the kind Of
decision which no judge in our neiRhbor
Canada, in Australia, in England in Ger
many, or in France. has the right to
make, or would for one moment ne ner
mitted to make. / am speaking OF the
action Of the court of a state when II de-
clares that a law passed in the collective
constitutional; and I have especially IN
view the laws affecting human rights
from vital standpoint-the laws affect
ing the terms and conditions Of life and
among the workers
IF these statements are based upon
a study of political science such as
President Lowell insists upon, ana IL
they embody facts of the kind Ambas-
sador Bryce insists upon, they are i'm
portant.
'T shall not have time to discuss the
judicial systems of all the countries
named by Col. Roosevelt In this co1In-
try the federal constitution is a law.
and each state constitution is a law
the federal constitution being by force
Of an express declaration, the supreme
law of the land. Acts of the federal
legislature and acts of the state leRis-
Iature are laws. Whenever the valSdity
Of a stateue, pressed upon a court as
measure of right, is challenged, the
court compares it with the constitu-
ton to see if the two laws are consist
emit. If they are inconsistent, the case
be decided according to both.
One of them must give way, and the
being supreme the statute
must give way.
"From time immemorial the Eng
ish courts have exercised a function
which is in essence and I'm principle
IDENTICAL in every respect with the one
described.
Australia's Constitution Like Ours
In the Oklahoma address quoted 1t
vas stated that no people had ever
asked to be sheltered under the protec-
ion of the power described; and Col
Roosevelt took occasion to name Aus
ralia as one of the countries where
40 Judge would have the right to make.
,r would be permitted to make. a de-
.ision holding a statute to be uncon-
ytitutional.
'The fact is that in the year 1900
he people of Australia asked the Brit
sh parliament to shelter them under
he protection of just such power Tho
petition of these people. almost four
Millions in number. 81 per cent of whom
were of pure British descent was
rranted; and a constitution which they
lad adopted, providing for a high court
4 judicature expressly modelled after
he supreme court of the United States.
vas embodied in an act Of the British
,arliarnent which esta blished the com
nonwea1th of Australia. Each state OF
he commonwealth possesses a constf-
ution and courts of it's own, as in the
United States, and the power of the
ourts. state and federal. over uncon-