Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1915-01-23
By New York Bar Special Com
mittee- Resolution Declares
Duty of Courts to Uphold
Fundamental Law as Against
Legislation-Other Points of
the Resolutions.

Committee on the Duty Of Courts to
Refuse To Executive Statutes in Con-
trave1tion OF the Fundamental Law"
In general it was studied reply TO
critics who complain of judicial usur-
patton of legislative power by the Amer
lean judiciary. but at the outset the re-
port reviews particularly the writings
of Col. Roosevelt, and in reply to his
| arguments, as well as those of others, it
offers 1879 printed book pages OF legal
citations historical data and other
matter.
Paragraphs Of Mr.. Roosevelt's criti-
cism OF present tendencies were first
| quoted as follows:
| Under our American system of gov
! eminent the judge occupies a position
such as he occupies no where else in
the world q position which really makes
! him. so far rs the negative side Of legis-
laIion is concerned, the most important,
! legislative official in the country: for of
| course ii is merely TO repeat truism to
say what was so we'll said by an English
Bishop two centuries ago, and quoted by
Mr. Justice Holmes among others:
| Whoever hath an absolute authority
to interpret any written or spoken laws.
it. is he who is truly the law gfver TO ali
| intents and purposes, and not the person
VINO first wrote or spoke it In some
most vital respects the judges have be-
come far more truly the Iaw givers than
| either the executive or the legislative
! bodies, State or National, can be- In
no other country is this permitted as
With us. III Germany, France or Eng
land, when the people have spoken and
definitely declared their mind through
| the legislature, the courts carry out the
popular wish and apply i, as formulated
! in law. Here the courts decide whether
or not that wish shall be granted.
! whether or not the people are to have
their will. Surely none will contend that
the judge is not the servant of the peo-
pie. and II behooves US to look carefully
into any tendency to turn him into mas
| ter instead Of servant. SO that the Gre
| aled rules the creator
| Did the trainers Of the constitution OF
the United States and the State Con
Ventio9s which ratified il. intend that the
Federal Supreme court should refuse to
enforce fedora and State legislation in
| excess Of or in contravention of its pro-
visions" asks the Committee
If not, by whom M how did they
intend TO enforce AheA.s DIVISIONS if the
bill Of rights il the first ten amendments
10 the federal constit utinn; also the anti
| slavery, anti-peonage, equal protection
Of the laws, due process OF law and
! equality before the laws provisions Of
the bill OF rights contained in the 18Th
18th, and 18th amendments also by
whom and how did they intend to deter
rhine conflicts between federal and state
power?
''Un1er the canon law throughout con-
| tincntal Europe during the middle ages,
the national constitution and laws. in
| Guiding III England part of Magma
Charta and several acts OF Parliament.
were refused execution wherever they
Confficted with the so-Called canon law
Or liberties OF the church
In short the American Revolution was
! lawyers revolution to enforce Lord
Coke's theory Of the invalidity of Acts
OF Parliament in derogation of common
1 right and Of the rights of Englishmen
| When the trainers of the constitution
freed themselves from parliament abso-
lu1ism did they intend TO substitute a
consolidated congressional absolutism
Of IS State legislatures in State matters.
without providing any tribunal to up
hold the privileges of freemen as defined
by them in the constitutional bin Of
rights, also TO determine the inevitable
conflicts between the Federal and State
jurisdiction"
IT was pointed out that Article III.
Section ?, Of the Federal Constitution
reads:
The judicial power shall extend to
| all cases, in law and equity, arising I'M
| DER this constitution, the laws OF the
United States, ana treaties made. or
! which shall be made, under their author
:ty'
All the trainers of the constitution.
! who have expressed their opinions on
the subject except four. one of whom
subsequently changed his views and
agreed with the majority approved Of
the judiciary refusing TO execute acts in
excess of or in contravention of the fed
eral constitution" says the Committee?
At the conclusion of the exhaust
presentation OF its case, including the
survey of the judicial system in many
other countries the committee submitted
the following resoluhons
! Resolved That in declarations possess
! ing written fundamental Law. il. is the
duty Of the courts to uphold the funda-
/ mental law as against legislation in con-
| travention thereof by refusing to en-
force as ultra wires or uncons titutional
| all statutes in excess Of or in contraven-
| ton OF the fundamental law, save ana
| except where the written fundamental
law Of the federation confers upon the
federal council or somebody with the
! powers of federal council plenary and
exclusive jurisdiction TO determine con-
ficts between the fundamental law and
ordinary statutes, as we'll as to enforce
the bill Of rights.
Resolved, Further, that in a federal
democratic republic with A. legislative
units q federation and IS states) either
| judicial review or else supreme federal
council with plenary power TO revise
veto, annul or suspend all legislation
both federal and state, either in whole
! or in part. is the only peaceful means
| Of resolving the inevitable conflicts be-
tween the constitution and the rights
and duties Of the federation and the leg
islation in 40 legislative units. as well as
TO uphold and enforce the bin of rights
| Resolved Further that the exnpri