Evening star., 1924-10-05
LA FOLLETTE'S COURT CURB
PLEA PARALLELED IN 1901
Thomas Jefferson Loudly Protested De-
cision by Marshall-Public Opinion
Held Check on Abuse of Power.

=
was entitled to the writ, but-and
| this was the first case Of its kind
was the law of 1889 constitutional"
The Constitution gave the court ap-
pellate jurisdiction, but the writ Of
mandamus could only be used in
original jurisdiction. The court de
cided that the law was unconstitu-
tional.
From Chief Justice Marshall's opin-
ion in that case the judiciary has
gathered TO itself the present control
over legislation. Part of his deci-
sion Will bear quoting here, as it is
used as an effective answer to those
who contend against this veto power.
The Constitution" Chief Justice
Marshall held lis either superior
paramount law, Interchangeable by
ordinary means, or it is on a level
with ordinary Legislative acts, and
like other acts is alterable when the
Legislature shall please TO alter il.
II the former part of the alternative
be true, then a Legislative act con
trary to the Constitution is no law:
if the latter part be true, then writ
ten constitutions are absurd attempts
on the part of the people to limit {.
power in it's own nature illimitablo.
Certainly all those who have
framed written constitutions contem
plate them as forming the funda
mental and paramount law OF the
Nation. and consequently the theory
of every such government must b.
that an act of the legislature repug-
nant to the constitution is void. This
theory is essentially attached 70 a
written constitution and is conse-
qUently 10 be considered by this couTt
as one of the principles Of our so
society. II is emphaticallE
the province and duty of the Judicial
department 10 say what the law IS.
. If two laws conflict with
each other, the courts must decide or
the opera ton of each
From that time on the power o.
the courts to declare a law uncon-
stitutional and therefore invalid has
never been successfully disputed.
Thomas Jefferson protested angrtlE
and bitterly. against the decision.
perhaps more angriiy and more bit
terly than the radical Mr.. La Fo!-
lette.
The next important decision of the
Supreme Court was one of the factors
which hastened the Civil War and the
Republican party-imagine it, the Re
publican party-denounced the de
cision in the strongest language at its
convention which nominated Abraham
Lincoln. The decision was in the
Dred Scott case, in which the court
held that a slave taken temporarily
into free State or Territory in which
Congress had forbidden slavery and
brought back into the slave state
afterward, was not citizen capable
of SUNG in the Federal courts il by
the laws of the slave State he was
| still a slave. The fourteenth amend
| ment. adopted after the Civil war
| neGatived this decision.
E,rix Cyox. nscisiou
A peculiar situation which. accord
ing to historians, affected public con-
fdence in the court, arose over a
| five-to-three decision in 1870. which
held invalid a law making govern
ment paper legal tender for debts.
This decision was reversed by the
court Il year later. and again in 1874.
The first reversal came about with
the creation of an additional judge
ship and the appointment of new
judge, and this time the decision was
by five-to-four majority. Finally,
| in 1874. the same question was
brought up for decision and the court
again reversed its first decision with
only one dissenting vote.
The case brought to light what
| is considered to be one of the dan
gerous weaknesses of the Supreme
Court. The Constitution does not
| specify the number of judges. There
is nothing to prevent an administra-
tion from forcing through Congress
some measure the constitutionality
of which is questiona BILE. The five
| to-four decisions prove that interpre-
tation depends not only on legal
! training. but upon the juriSt'S point
| of view. Witness the minimum wage
law. The President. by the simple
e1pedient Of appointing additional
judges whose general outlook on
problems are known, may easily sue
ceed in having a measure declared
| constitutional by one set of judges
which assuredly would be declared
| invalid by another group.
Public Opinion safexuarded.
There is nothing TO prevent this ex-
| cept public opinion. but that alone
! is the greatest safeguard against the
| inscriptions use of such a situation.
| Criticism has been made of the Su-
preme Court in that ii does not keep
| abreast of the progress of mankind
| in sociological development The
| court which would have declared un-
| constitutional a law enacted 100 years
ago. might easily recognize the valid
| ity of statute enacted today in
more enlightened period. 1t has been
said that had the minimum wage law
| SO years hence, there would have
| been little question of its constitu-
| tionality.
Those who hold to the judicial con-
| troll of legislation, however, point 10
the decision of the Supreme Court in
| the child labor law. to uphold their
beliefs just as readily as the oppon-
ents of judicial control cite it as an
| example of the need for change.
a dn1I ic ~
of the need for child labor regulation
that all it's evils are granted. The
| Supreme Courts decision pointed to.
| a weakness in the Constitution, they
| say, rather than exemplifying the
evils of the courts veto power. 1t
is the Constitution, not the method of
guarding it, which needs repairing
| now and then.