New-York tribune., 1912-03-18
THE growth OF JUDICIAL POWER

THE GROWTH OF JUDICIAL POWER
In q speech delivered in Brooklyn the
other day Chief Judge Cullen OF the
Court Of Appeals made an effective ana
interesting reply to the common charge
that the judiciary has been unduly ex-
tending it's powers. 1t is the people, lie
said, who have extended the courts
bowers in this state. In the original con-
stitution Of New York, Judge Cullen
pointed out, the Legislature was ooml-
nant. so much so that the upper house
constituted, with three judges OF the
Supreme Court, the highest court in the
state, the Court Of Errors. That is TO
say, the Senate decided what the consu-
tuition meant. There was, therefore, 10
such judicial check upon the Legislature
as at present. Every subsequent
constitution that has been adopted by
the people" said Judge Cullen mas
Limited the power Of the Legislature,
"and if the powers of the courts nave
"been increased it has been upon the
wish Of the very people whom 1t Is
claimed we 'obstruct.' The constitu-
ton adopted just after the Civil War,
for example, prohibited action by the
LEGISLATURE in twenty-five cases. At the
last constitutional convention five new
restrictions on legislative power were
added
This taking away power from the
Legislature has been deliberate. 1t has
been inspired by dlstrust Of the Legis-
lature. When there was general fear
that the Legislature would not pass
bill or would repeal it if enacted the de-
sired legislation was embodied in the
constitution, which is full Of matter
that has no proper place I'm organic
law and, owes its place there 10 lack OF
confidence in the Senate and Assembly
Its very inclusion in the constitution
bespeaks the confidence reposed in the
courts Politicians might buy and sell
| legislation, but they did not traffic in
court decisions. What the people saw
put into their constitution they felt sure
would be permanently effective. The
courts at this time were the reliance OF
the public against unscrupulOus political
and financial interests. That was the
reason why their power was steadily
enhanced in the way Judge Cullen points
out, through the constantly increasing
prohibitions of legislative action placed
in the constitution.
The practice Of overlooking the consti-
tuition with what should be purely legis-
lative matter has not worked happily. 1t
! has burdened the state with the inceS"
SAINT task of amending the constitution
and it is responsible for whatever feel
ing exists that a simpler and quicker
method of amendment is desirable. 1t is
the occasion, moreover, for much of the
present dissatisfaction with the courts.
Powers which the people were glad TO
have placed carefully out of the reach
of the Legislature in the days Of their
deepest distrust many now desire 10 eX-
ercise, and are impatient with the courts
for not offering them some easy way
around the obstacles which they helped
TO create IF state constitutions could
be got back to their ancient simplicity
occasions for pronOunCing laws unconsti-
tutiona would be infrequent. That
would be better way out of the present
situation than the adoption of a device
for suspending or ignoring constitutions
whenever their prohibitions were found
incOnvenient.