The Indianapolis times. [volume] (Indianapolis [Ind.]) 1922-1965, 1923-10-23


there are abundant presidents
on both sides To find pre-
oedents for the authority now used
by the United States Supreme Court
to declare acts of Congress uncon-
stitutional, some learned lawyers go
farther back than the constitutional
convention itself
For example, q defender of the
court will cite the case of Holmes VS..
Walton New Jersey in $780, where
the Legislature having provided for
jury Of six, the court refused to
carry out this provision on the ground
that it was Unconstitutional and the
Legislature appeare to have accepted
the courts decision.
On the other hand. those who chal-
lenge the courts authority can pre-
sent the case CT Rutgers vs.. Wad-
dington QNew York; in 1884. wherein
the judge himself said: THE SUI
premacy of the Legislatures need not
be called in question; If they think 1t
fiji positively to enact a law there Is
no power which can control them.
When the main object of a law is
clearly expressed and the intention
is manifest, the judges are not at lib
erty, although 1t appears to them to
be unreasonable, to reject It: for this
were to set the judiciary abcve the
legislative, which would be subversive
of all government"
Cites Old Writer
Charles Warren. former assistant
United States attorney general. author
of The Supreme Court in U. s. His
tory" in defending the Supreme
Court, finds comfort in a remark of
a writer in a Philadelphia paper in
1888: Besides. should Congress be
disposed to violate the fundamental
articles Of the Constitution . . still it
would be of no avail, as there is a
further barrier interposed namely, the
Supreme Court of the Union. whose
province It would be to determine the
constitutionality OF any law that may
be controverted."
This, Warren takes to indicate the
understanding OF the public at the
very time the Constitution was being
ratified that the Supreme Court would
have such power He and others who
agree with him have dug up many
such statements to prove their point.
Quotations to Contrary
But Jackson II. Ralston, recognized
constitutional authority. who has
spent some years. investigating the
presidents in the matter for the
American Federation Of Labor, can
counter with many quotations to the
contrary. One. for instance, from a
letter written by Governor Spaight OF
North Carolina in 1887. the year OF
the constitutional convention. of
which Spaight was member. smet.
1T is immaterial what law they
(the North Caroliaa tudgesl have de-
clared void: It is their usurpation OF
the authority 10 DO II that I complain
OF, as l do most positively deny they
have any such power Be
sides. II would have been absurd and
contrary to the practice OF all the
world had the constitution vested
such powers in them, as they would
have operated as an absolute negative
on the proceedings of the Legislature
ana the STATE instead or
being governed by the representatives
in general assembly would be sub
iect to the win Of three individuals.
who united in their own persons the
legislative and judiciary powers, which
no monarchy in Europe enjoys
."
Two Schools OF Opinion
Much more could be written as to
what the people OF that day thought.
and the net result would only be that
there were two schools OF opinion on
the subject. The truth probably is
the vast majority was so concerned
with fears that great arbitrary pow
ers might be given the executive,
making him sort OF king. or the
great powers the Legislature might
give itself, that not many turned
their eyes upon tho courts. Danger
OF this branch Of the Government be-
coming all-powerfIl certainly was not
foreseen by the majority.