Year: 1868

From the New York World (Dem.) Jan. l2l


The Judiciary Committee of the House
has instructed Mr.. Wilson, its chairman,
to prepare bill requiring two thirds
majority of the Supreme Court to declare
any law passed by Congress unconstits-
tional. The number of Supreme Judges
is eight. Five of these being less than
two thirds, six would be the smallest
number that could set aside law for re-
pugnance to the Constitution; thus
giving an unconstitutional law three
chances to one to prevail over the Con-
stitution.


The enormity of this attempt to tam
per with justice in her highest sanctuary,
this attempt to destroy the independence
of the Judiciary, this attempt to degrade
and subycrt the Constitution by enacting
that the laws of Congress deserve thrice
the respect which is due to 1.-THE enor-
nifty of this attempt cannot be over
stated by any strength oflanguage. The
proverb that whom the gods wish to de-
stroy they first make mad, was never
more fifty applied than to this last pro-
iect of the Republicans.


In the first place, the proposal of such
law is confession that the reconstruc-
ton acts violate the Constitution con-
fession that Congress is aware that they
cannot pass the ordeal of judicial ex-
animation by an impartial and fairly
constituted tribunal The bill so sud-
denly proposed is prompted by the ex-
pectation that the reconstruction acts
will be brought before the Supreme Court
within the next few days. The bill, OF
course, cannot be retrospective; TOR In
that case it would unsettle every consti-
tutional decision ever rendered by the
Supreme Court. A disgraceful attempt
| is therefore to be made by Congress
Ito run a race against the Supreme
FCourt, and hurry an act through impair
ing the powers of that tribunal before it
shall have time to set aside an uncon-
stitutional law. So many Republicans
have openly questioned or denied the
| constitutionality of the reconstruction
acts. that it is no wonder Congress dares
not trust the Supreme Court to pro-
nounce an opinion on the subject. But
bill to deprive judges OF their authority
| is so bold and so wild an infringement
of the rights Of the Court that will reaci
against the party more destrnctively
than anything it has yet done. The OBJ
iect of the bill is TO punish judges for
nerceiving that an act of Congress is
unconstitutional, by depriving them oi
their authority. Its practical effect will
be the same as removing certain num-
ber of dissenting judges from the bench
during the trial of a particular class ol
cases. 1t is all the same whether Judge
Nelson is legislated off from the bench
outright, or an act is passed deprlvine
his opinion Of its influence upon de-
cision. 1t is all the same whether Con-
gress filings out three judges in order to
reduce the Conservative predominance
or whether it simply nullifies their votes
by declaring that three judges on one
side shall balance six on the other.


In the next place, this bill is foolish
and suicidal, because the Supreme Court
has Just the same power to declare IL un
constitutional as any other. This the
Court would unquestionably do; and the
Republican party would incur the odiu='
of passing such bill without reaping
from it any advantage.


II is fundamental TO the very concep.
ton oil court Vi JuoAiSci en"s 80" P~A


lies to a suit shall have equal advanta-
ces. The plaintiff and defendant have
eoual rights, and when they come into
court to demand justice, nothing should
he regarded but the merits of their re-
snective causes. A law which should re
quire twice as many judges to decide
cause for the plaintiff as for the defend
ant or rice persa. would do violence &c
all notions of equity. But the very poinll
in issue between plaintiff and defend
ant is often the econstitutionaiity oil la"
If one of the parties is to have two
chances to the Others one, there Is nc
equal justice, the BALANCE IS not nelS
even two-pound weights are put intG
one scale and one-pound weights int
the other. il is a burlesque on justice
TO organize tribunals in such a mannei
that plaintiffs and defendants do no


come into court with equal advantages
In Jury trials. although the verdict mus
be unanimous, the plaintif and defend
ant stand on an equal footing II take


Just as many jurymen to decide in favo
OF The plaintiff as 1t does in favor Of thl
defendant II Law should be passel
subveriing this equitable rule, an'
making the consent Of twelve jnryneI