Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1914-05-13
COURTS AND LAWS.
=, cu,EF JUSTICE EMERY LEO.
TUREs AT YALE.
,aEs COURTS DO NOT KILL STAT
DEE DEE ,rsr BECAUSE THEY THINK
THEM INExpEDIENT.
Nav Haven oourier.Jourmai, May 9. |

,v.w Haven oourier.J Journal, May O.
40 sixth and last lecture on "what
..,,ce and How Can 1t Be Securedf' in
S,orrs course, former Chief Justice l..
Emery. of Maine, yesterday considered
.nor the power of the judiciary to re-
49, osect to unconstitutional statutes as
initial TO securing justice. He said in
part: .d ..,..
- a novsr is that the judges misuse 1t
"a block legislation they think unwise.
T,s argument has practically no founda-
.;on in fact. Among the thousands of
...ss holding statute unconstitutional,
s.rdIv dozen can be found so decided
hscanse the judges thought the statute in
s-ned;ent. On the contrary, the courts
,-on, the beginning have disclaimed any
s,ch power in strong and explicit
language"
The lecturer cited many judicial
orinions to that effect. Among them was
that of the supreme court of Minnesota
aeclarinp it was ''not at liberty to declare
statute unconstitutional because 1t is
tbouzht by them to be unjust or oppres-
.;ve or to violate some natural, social or
nolitical rights OF the citizen, unless it
ran be shown that such injustice is pro-
bibited or such rights protected by the
constitution" Also that OF the Maine
coprt that sit is for the legislature to de-
,srmine when laws are necessary or ex-
nedient for the welfare ofthe people, and,
bowever Inconvenience, restricted or
even injured some OF the individuals may
he. such general laws are to be given effect
unless there can be pointed out some pro-
vision in the constitution which pro-
hibits them" "Furthe-," he continued,
sit is a settled canon OF Interpretation
that the constitutional prohibition must
be clear to justify holding statute I'M
constitutional.
"A review OF all the cases would show
that the courts do not obstruct the current
fprogress as claimed by their critics, but
only keep its from overlooking its banks
to the destruction Of the revered rights OF
the people.
Nevertheless, despite the lessons OF his
tory, ii is still urged by the impatient that
this judicial check should be removed, and
that the legislature itself, as the elect OF
the people, may and should be trusted to
heed constitutional requirements and re-
strictions. Legislative decisions on con-
stitutional provisions do not indicate the
soundness OF the proposition 1t is COM
mon knowledge that legislative majorities
often override law and fact for partisan or
personal advantage" In support OF this
statement the lecturer cited numerous in
stances, notably that in his own State OF
Maine, where the legislature by yea and
nay vote, "two-thirds OF all the mem bers
elected to each house," declared that "the
public peace or safety" imperstively re-
quired that a statute making Lincoln 9
birthday legal holiday should take effect
at once instead OF at the end of ninety
days.
''But it is further urged that even IL the
judicial check be retained, 1t should be
subject to reversal by a majority OF such
OF the electorate as choose to vote upon
the matter. Such q procedure would des-
troy all constitutional guarantees of the
personal liberty and other rights, no mat
ter what safeguards might be put about
1t. Constitutions, to be of any value as
bulwarks OF personal rights, should not be
changeable with the popular sentiment OF
the day. They should contain only the
results OF long and deep reflection and ex-
perience."
In conclusion, the lecturer restated his
theories as follows: "Q) After all, human
justice consists in securing to each indi-
ydual as much liberty of action in the
exercise of his physical and mental powers
and as much liberty to enjoy the fruits OF
such action as is consistent with like
liberty for other individuals, and with
such restrictions only as are necessary for
the welfare OF society as a whole with
out discrimination for or against any
Individual. (2) Justice is more firmly
secured by government with a division
OF powers, written constitution exclud-
lug from government interference such
PERSONAL rights as reason and experience
nave shown to be necessary both for the
happiness and efficiency of the individual
ana OF all; and (3) by a judiciary indie
pendent and strong, with the power and
'he duty to defend those rights when as
sailed by selfish or impatient and change
able majorities.