Evening star., 1924-10-05

/ ~ NE Of the least radical of SEN
ator La Follette's theories
is his attitude toward the
| ~ United States Supreme Court
and the Federal judiciary.
Yet his proposals to amend the Con-
stitution and thereby prevent nulli-
hcation Of Congress- made laws by an
inferior Federal judge Of the Supreme
| court have been attacked far and
wide as tending toward bolshevism.
John w: Davis put 1t rather neatly
| the other day when he referred to
the La Toilette proposals as savering
| more of London than of Moscow For
what Mr.. La Toilette wants England
/ mas had for many years. AS for the
| Supreme Court, that stately craft has
been bufeted about os much by the
! storms and squalls of a century, yet
| lived to weather other gales. that it's
! seaworthiness has been amply tried.
Senator La Toilette is not the first
! 10 have become alarmed at the pow
ers Of the Supreme Court and the
! Federal judiciary. He can cite au-
thortties in his favor as far back as
| Thomas jefferson. For the attitude
i toward the courts and their control
or legislation has always depended
upon the individuals point of view.
Contrasting Viewpoints.
! Those who believe in the theory of
! checks and balances and the protec-
| tfon of property rights at whatever
| cost will uphold the Supreme Court
and the Federal judiciary in it's con-
troll over legislation. Those who con-
! slider the popular rule" as dependent
| upon legislative and executive su
/ premacy have always sought to curb
, the veto powers of the judiciary.
! Those who believe that a law en-
acted by Congress represents the ex-
! pressed will of the people and that
/ Congress is A fit judge of its consti-
1 tutionality decry the right of the
! courts to nullify it. Those who be-
lieve in the rigidity and infexibility
! of the Constitution are unwilling to
/ allow any but the trained jurist to
/ pass upon its possible infringement.
i Senator La Toilette contends that
the Constitution never intended, but
that the courts have usurped. not
only the vctoing power which the
founders confined to the President,
but the power to nullify laws after
they have been in operation, thus
! tending to place within the courts
the declaration of what is TO be the
public policy.
COnErexs Interested Party.
No one contests this point with
| those who favor the checking power
of the judiciary point out that il
could not have been otherwise. The
Constitution was adopted as the
| foundation of the Government. Any
law passed by Congress must con-
form to the Constitution. and it is
an established principle that the in
depreciation of ehe law belongs to
the court of justice.
! If Congress. were allowed to pass
on the constitutionality of a law, il
has been pointed out that, being an
interested party. it would decide in
its own favor. This would tend to
subjugate the Constitution to Con-
gress, instead of following the in
tent of the founders to require that
/ Congress perform its functions un-
der the Constitution.
| The President, who was given the
power of veto. is not necessarily a
lawyer, nor is he diSinterested
party. Interpretation of laws and,
therefore, decisions, as to their con-
stitutionality, gradually came under
the judiciary. mainly because there
| was nobody else to take the job.
La Toilette View Not New.
Senator La Toilette is perfectly
correct in his contention that the
courts have gradually usurped for
| themselves a power which was never
expressly given under the Constitu-
tion. The Supreme Courts decisions
were throwing the country into fits
long before the minimum wage law
or the two child labor laws were
! ever conceived.
The first attacks on the court fol-
| lowed a decision that it had jurisdic-
ton to entertain suits by private
persons against a State. Interpreting
article iii of the Constitution in 1898,
the Supreme Court decided that an
| action lay against the State of
Georgia at the suit of private plain
tiff. Georgia refused to appear in
| court. and the Supreme Court gave
judgment against her by default. in
case She did not appear and plead
before fixed day. Georgia raised
such a howl ably supported by Alex
ander Hamilton, that other States
came rushing to her rescue. and Con-
gress accordingly added the eleventh
amendment to the Constitution.
The Supreme Court then rested on
its laurels until 1901. President
Adams in the last hours of his ad-
| ministration appointed several JUS
ticeS of the peace in the District of
Columbia, among them being William
Marbury. But the incoming Secre-
ldfy OF state, James MdOlSOn, VINO
had just been appointed by the new
President, Thomas Jefferson, refused
to turn over the official commissions
to the justices of the peace, holding
that Adams had made the appoint
ments to perpetuate his friends in
Office.
Historic Decision Made,
The appointments had been con-
firmed, signed and sealed and in the
possession of the Secretary of State.
Marbury asked the Supreme Court
to deliver writ of mandamus to
the Secretary, ordering him to de-
liver the commissions The judiciary
act of 1883 authorized the Supreme
Court to grant a mandamus, and the
court held that under the law the
IT, nnn W.