Twin city review. [volume] (Champaign, Ill.) 19??-1929, 1924-10-31
VETO POWER By
COURTS NOT Up
HELP By HISTORY
By SENATOR Ia TOILETTE
Delivered Before A. +. of l.. Consen-
tion. CINCINNATI. 1922

DtiiNCfNu DrIOfe ~ r. VI L. AHNAANHf
tion. Cincinnati. 1922
From what source, il may be asked.
have the federal judges derived the
supreme power which they now SO
boldly assert?
Not only was such power not given
to the judiciary, state or federal, but
the records of the constitutional con-
vention show that when il Vas pro
posed in the constitutional convention
that judges should have veto upon
acts of congress, il was deeisively de-
feated on four separate occasions, and
at no time received the support Of
more than three states.
As matter Of fact, no member Of
the constitutional convention was bold
enough TO bring forward a PROPOSE.
tion that federal judges should have
the power of nullifying a law after
it had been enacted by congress and
approved by the president.
The most extreme measure offered
eXalting the power of the judiciary
was merely the proposal presented by
Madison and James Wilson, that the
supreme court have the same power
as the president TO pass upon legisla-
tion before its final adontion. and il
the supreme court should hold IL I'M
constitutional, that the measure in
question should be passed by a two
third vote of each house before il
should become effective as law.
1t was in this restricted form that
the members of the constitutional con.
vention overwhelmingly rejected the
theory of "a paramount Judiciary
There is, therefore, no sanction in
the written constitution of the United
States for the power which the courts
now assert. They have secured this
power only by usurpation.
Thomas Jefferson foresaw this in
evitable encroachment of the judiciary
upon the sovereignty of the people
and used his mighty powers to resist
it. He said:
"lt has long been my opinion,
and / have never shrunk from its
expression, that the germ of dis
solution of our federal govern
ment is in the judiciary-the ire
sponsible body working like grav-
ity, by day and by night, gaining
a little today and gaining little
tomorrow and advancing its noise
less step like thief over the field
of jurisdiction until all shall be
usurped."
In exsending their jusiisdittion in
other directions the federal courts
have often gone to the judiciary of
England for precedents, but in assert
ing their right to set aside the laws
of congress they have never looked
in that direction and for very good
reason. As Chief Justice Clark of the
supreme court of North Carolina has
aptly said:
"The courts have attempted
only once 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 ii as
a precedent. Il No court in
England since Tresillian's day has
refused to obey an act of parlia-
ment."
Several years ago Justice Harlan,
one of the wisest and most far-sighted
men who ever sat on the supreme
court, said:
WHtH ine AintIICdH peopte
come TO the conclusion that the
judiciary of this land is usurping
to itself the functions of the leg
islative department of the gov
ernment, and by judicial construc-
tion only is declaring what should
be the public policy of the United
States, we will find trouble.
Ninety millions of people-all
sorts of people with all sorts of
opinions-are not going to submit
to the usurpation by the judiciary
of the functions of other depart
ments of the government and the
power on its mart to declare what
is the public policy of the United
States"