Milford chronicle., 1937-06-25
(Reprint from Dickinson Law Review
of June, 1880
BY RUBY r. VALE
of Milford and Philadelphia

~ ANO1A Ats fThAlAN
of Milford and Philadelphia
Article 3 Section l of the Fedora
Constitution is the tendon of Achil
les of the American system of gov
ernment and also may be it's safet.
valve. The duty to create a Suprem,
Court and inferior Federal courts
necessarily includes the control ovel
the judges through whom the judi
ciary functions. The performance oi
this duty is imposed on the Congress
and the President and they also are
invested with the incidental powers
to confer jurisdiction, to define the
judicial function and to fix the num-
Der of judges. The President, with
the consent of the Senate, names the
judges. Lord Bryce refers to the
failure of the Constitution ito de-
termine the number of judges in the
| Supreme Court" as "a weak point,
joint in the courts armor through
which a weapon might some day
penetrate" 1t is this dual legislative
and executive power to create the
courts and to determine the number
and personnel of the judges that in
full understanding and proper eXer-
else has made a free and independ-
ent judiciary; and figuratively, is the
tendon which maintains the equili-
brium of justice and sustains the
weight of order as administered un-
der our dual Federal and State gov
ernments. But this vital tendon is
exposed to the possibility that exec
utive dominance over a subservient
Congress may atrophy or cut it, with
resultant collapse of equilibrium and
the executive becoming the domi-
nant authority in government and in
its administration of justice.
The reason our government is so
delicately balanced and the admins
tration of justice so sensitive to
change is because its structure is de-
fined, its mechanism is determined,
the rights of the people are protect
ed and the limitations on the func-
tions of its organs are imposed by
a written constitution whose words
of general import must be given ulti-
mate meaning by human tribunal.
The mechanism of our government
and its principles of constitutional
law are in a constant state of tiuX
and both reflect in their evolution
not only the variant political and :
conditions but also the +,
minds, characters and environments !
1f the judges that give meaning to
he Constitution and apply it to
changing conditions. They then are
he real arbiters of government and
Of law under our Constitution who /
IN final appeal speak last in the jul
iicial understanding. of its vital
written words and in its application
o new conditions.
1t is clear that with statutory
change in the personnel of the Su-
lreme Court and with consequent
change of interpreta-
ion, Il e., when the proper inter-
jretation gives definition to uncer-
ainty or sustains statute of doubt
ul constitutionality or condemns
itatute that clearly offends the Con-
titution) the last Interpretation is
lot in the nature of an amendment
O the Constitution but rather is de-
laratory of the Constitution; and
his because neither Interpretation is
by giving a meaning now
ifferent from that when first writ
en- or arbitrary by not applying that
meaning now as then to similar sit
ations, but both interpretations are
he conscientious opinions of inde-
endent and oath-regardful judges.
When, however, the Congress, at the
equest of the President, creates new
ldges for the avowed purpose of
ustaining as constitutional legisla-
on similar to that which the Su-
RENE Court heretofore in proper ;
ischarge of its functions had strick- {
n down as unconstitutional. then .
ne statutory increase in the number ,
f Judges and their change of mean
lg or of the application of the
ords of the Constitution is not in [
,rpretation but in fact and effect is
namendment to the Constitution, ;
made for that avowed pur-
)se.
The essentials of a representative {
smocracy are that the people shall ;
'dain a fundamental law which es- {
blishes a government with sover- {
gnty vested in the popular will, eX- {
'cised for the general welfare and
hich functions through agents. l
here can be no democracy with {
presentation without either the s
additional assent of the people or, Il
ter referendum to them, their Or t
inal adoption or subsequent a
nendment of a constitution. C
The unwritten constitution of Eng [
nd may be amended by act of Par Il
lment or by judicial Interpretation j
the House OF Lords, but by either {
ly if and when sustained by pub 8
opinion. There is reserved al Ii
iys to the people of England the IL
wer of repeal by subsequent Par o
ment and to nullify constitutional Il
of the House of Lords p
the creation of new Lords. Il
While amendments may be made Il
the written Constitution of the ii
Iited States in four different ways. t.
CHI of the methods makes the ap- 81
oval of ratification by the people ii
fundamental essential of consti- di
.ional change. The executive in ef- ii
It may write into our Constitution ST
basal principle declaratory of hu-
N relations only if it is universal OF
accepted as true because founded VI
obvious or admitted fact, as when cl
mer President Theodore Roose- re
t declared the consuming public in
be a third party in interest to all NJ