The labor journal. [volume] (Everett, Wash.) 1909-1976, 1922-06-30
Continued from Last Week }

In extending their jurisdiction in
other directions the federal courts
have often gone to the judiciary of
England for precedents, but in as
serting their right to set aside the
laws of congress they have never
looked in that direction, and for a
very good reason. AS Chief Justice
Clarke of the supreme court of North |
Carolina has aptly said:
"The courts have attempted only
once in England to assert a right to
set aside an act of parliament, and
then Chief Justice Tresillian was
hanged and his associates eXiled to
France, and hence subsequent courts
have not relied upon it as a preced-
ent No court in England
since Tresillian's day has refused to
obey an act of parliament"
In the beginning encroachment by
the federal judiciary was very grad
ual. In the case of Marbury VS.. Mad
ison, where the power of the iudic
iary to nulIify statutes was first
formally declared, it is worthy of
note that this principle was not in
volved in the decision, but was as
serted only as an opinion of the court
and that it was further qualified by
the statement that it is only legisla-
ton CLEARLY repugnant to the con-
stitution" that can be declared void.
This is one of the commonest STRAIT
egems of the court. The particular
case is decided in accord with the
popular attitude, but there is often
adroitly introduced into the decision
| what lawyers call obiter dicta,-that
| is, a carefully worded declaration as
| mere incidental and collateral eX-
| preston of opinion not material to
| the decision of the case before the
| court but which is injected into the
case at bar to prepare the way for a
contemplated decision when the occa-
sion shall be more opportune.
This, it may be remarked, is exact
| ly what the supreme court did the
other day in the Coronado case,
| where it dismissed the case against
the United Mine Workers, but laid
down a line of policy which will IN
future be relied upon by all federal
and many state courts to limit, if not
destroy, not only trade unions but
| organizations of farmers and others
who are concerned in bitter contro-
versies against the powers of en-
| trenched wealth.
Until recent years the Supreme
| court ventured to assert this great
power to override the acts of con-
gress only upon rare occasions and
at widely separated intervals of time,
AS only a relatively small part of
the people were directly affected by
any Of these decisions, the public as
| whole were not aroused to the
dangerous inscription which was TAX
ing place. There were, it Is true,
occasions, such, for example, as the
decision that congress did not have
the right to levy an income tax,
| which aroused the entire country, but
in these cases the evil was cured by
| a constitutional amendment overrul-
ing the supreme court, so that the
direct question of the courts usurp-
ed power did not become continu-
ing issue.
For several years before the out
| break of the Great War. however, the
| people had become aroused to this
| dangerous situation and a continuous
campaign was being conducted to
| check or correct it. This, you will
! recall, was one of the issues in the
campaign of 1912, when Theodore
| Roosevelt brought forward as his
| remedy a proposal for the recall Of
! judicial decisions. This movement
for reform of the American judiciary
ike many great reform movements
| of that kind, was interrupted and set
| back by the outbreak of the World
| War. But the judiciary was not
| checked. On the contrary. it had
used this period when the attention
Of the people was diverted by the
problems of war and Of recOnstruc-
ton, to extend its powers and TO null
lily the acts of congress with greater
boldness than it ever before display
ed.
Seven years ago Justice Harlan,
one of the wisest and most far-signt-
ed men who ever sat upon the SUI
preme court, said:
when the American people come
| to the conclusion that the judiciary
of this land is usurping to itself the
functions Of the legislative depart
| ment of the government, and By Iu-
dicial polify of the United States,
we will find trouble. Ninety millions
of people-all sorts Of people with all
sorts of OpiniOns-are not gong 70
submit to the inscription by the ju-
dietary Of the functions Of other de-
partments Of the government and the
power on its part to declare what is
the public policy Of the United
States"
In my opinion. the time Of which
| Justice Harlan spoke is now at hand.
/ believe that the decisions of the
supreme court and the iniunctions Of
| the lower federal courts, coming as
they have as the elimination Of a
long train Of judicial Inscriptions. have
aroused every citizen who pretends
to have any concern for the welfare
Of his country.
| believe that this question Of iu-
dicial usurption is now the supreme
| issue.
The decision handed down by the
majority Of the supreme court on
May - last. in what is commonly
known as the child labor case. is
merely one Of the latest manifesto
tions Of the usurption Of power by
! that court
! Assuredly it is not necessary in
this presence to discuss the evils of
child labor in our industrial system.