The Elk Mountain pilot., 1922-07-27

by the President The offered
ang the of the judiciary merely the proposal
presented by Madison James Wilson, that the Su
preme Court have the power the President
pass upon legislation final adoption, and if
the Supreme Court should hold unconstitutonal that
the in question should be passed by wothrds
of each House before should become effective
law 1t in this restricted form that the members of
the Constitutional Convention overwhelmingly rejected
the theory of "a paramount judiciary"
There is therefore sanction in the written Consti
tuition of the United States for the power which the
They have secured this only by
usupation Thomas Jefferson foresaw this inevitable
croachment of the judiciary the sovereignty OF the
people, and used his mighty to resist it. He said:
ut has long been my opinion and have never shrunk
from its expression that the of dissolution OF our
Federal Government is in the udciaythe irresponsible
body working like gravity, by day and by night gaining
little today and gaining little and advanc
ing noseless step thief the field of jurs-
diction until all shall be usurped-"
English Justice Hanged for Veto
In extending their Jurisdiction in other directions
the Federal courts have often to the judiciary of
England for but in asserting their right to set
aside the laws of Congress they have never looked in that
direction and for very good AS Chief Justice
Clarke of the Supreme Court of North Carolina has apty
said:
The courts have attempted only once in England
assert right to aside of Parliament, and then
Chief Justice Tresiian hanged and his associates
lied to France and hence subsequent have not
since Tresans day has refused to obey act of Par
lament"
Judicial Encroaclments
In the beginning encroachment by the Federal judc
iary very gradual. the Marbury against
Where OF judiciary to nullify stat
utes first formally declared it is worthy of that
this principle involved in the decision but
asserted only opinion of the and that it
further qualified by the statement that it is only legisa
ton CLEARLY repugnant to the Constitution" that be
declared void That the first time they undertook to-
say anything the subject and then they said it had to-
be plain about which there could be dispute
This is of the commonest straagems of the court
The particular decided in accord with the popular
attitude but there is often aroitly introduced into the
decision what lawyers call obter dctathat is,
fully worded declaration incidental and collat
nf tloI
the case before the court but which injected into the
case at bar to prepare the for contemplated decision
when the occasion shall be opportune.
This, it may be remarked, is exactly what the Su-
preme Court did the other day the Coronado case,
Workers but laid down line of policy which will in fu
ture be relied by all Federal many State
to limit and hamper if not destroy only
but organizations of farmers and others who
cerned in bitter controversies against the of in
trenched wealth.
years the Supreme Court ventured to as
sert this great to override the acts of Congress only
upon occasions and at widely separated intervals
time AS only relatively small part of the people were
directly affected by of these decisions the public
whole not aroused to the dangerous usurpation
which was taking place There it is occasions
such for example, the decision that Congress
have the right to levy income which aroused
entire country but in these the evil cured by
constitutional amendment overrung the Supreme Court
that the direct question of the usurped power
did not become continuing issue.
Judge made Law Denounced by Roosevelt
For years before the outbreak of the Great
War; however, the people had become aroused to this dan
situation and continuous campaign was being
conducted to check correct it, This you will recall
of the issues in the campaign of 1872 when
dore Roosevelt brought forward his remedy proposal
for the recall of judicial decisions The growing
ment for the reform of the American judiciary like many
great reform movements of that kind interrupted
and set back by the outbreak of the World War
judiciary checked On the contrary it availed
itself of this period when the attention of the people was
diverted by the problems of and of reconstruction to-
extend it's and to nufy the Congress with
greater boldness than it ever before displayed
Ito be Continued)