WHY THE PEOPLE DISTRUST THE COURTS, SECOND ARTICLE
Roe, Gilbert E.
OUR JUDICIAL OLIGARCHY (SECOND ARTICLE.) Why the People Distrust the Courts By GILBERT E. ROE (Copyrighted, 1911, by The Robert M. La Follette Co.) STARTING from the same point—The Constitution...
...They stand for the "sacred rights of property" as against "individual rights...
...When the Constitution was adopted so little was thought of the people's ability to govern themselves that the framers of that instrument provided that the President should be elected by a college of electors, designed to act independently of the will of the people...
...Which shall it be...
...8) "Volume IV...
...Equally dead in a number of the states is the Constitutional provision respecting the election of United States Senators by legislatures, and it now seems certain that every state will, in the near future, select its Senators by direct vote of the people, whether a formal amendment to the Constitution on the subject is adopted or not...
...it is immaterial what they (the Courts) have declared void...
...While the proceedings of the Constitutional Convention were secret, we know from Mr...
...Of all the agencies of government the courts alone have shown themselves insensible of, or indifferent to this change...
...A single individual, if only he holds judicial office, may destroy a most excellent law desired by practically all the people, duly passed by large majorities in both Houses of Congress, and approved by the President...
...He thought laws should be well and carefully made, and then be uncontroulable...
...B. Hart, Editor) Vol...
...16) The above suggested facts and circumstances, while by no means exhausting the subject, go far to support the conclusion reached by careful students of the question that the exercise by the Courts of power to nullify laws as unconstitutional is simply judicial usurpation...
...STARTING from the same point—The Constitution of the United States—the people and the federal courts have been traveling in opposite directions for more than a hundred years...
...2) id...
...page 382...
...The Courts Have Usurped the Power to Declare Laws Unconstitutional, and Therefore Invalid THAT THE COURTS of this Country exercise the power to declare any statute invalid which appears to them in conflict with the Constitution is, of course, admitted...
...The real power to declare whether that shall be law which Congress and the President have enacted into law, is exercised by the courts...
...5) More than one-half the states now have direct primaries, all adopted in recent years...
...So far as really important legislation is concerned, such as that relating to taxation, commerce, labor, corporations, trusts and the like, Congress has become little more than a body to initiate or propose legislation...
...Impelled by the spirit of democracy, the people of this Country have found ways to avoid the Constitution and possess themselves of the instruments of government...
...nor can they find anything in the Constitution, either directly or impliedly, that will support them, or give them any color of right to exercise that authority...
...The relation of the individual to his government has been changed much more in this Country since the adoption of the Constitution than it was by its adoption...
...There are now merely some minor tax qualifications in a few of the states, and some very elementary educational qualifications...
...See also opinion of Justice Gibson of Pennsylvania in Eakin v. Raub, 12 Seargent and Rawle, page 33...
...Conflict over Judicial Powers by Haines, pages 32 and 33...
...While the people have been laying the foundation for democracy, the courts have been building an oligarchy...
...3) All states abolished property qualifications before Rhode Island did so, but that state finally dropped that qualification in 1888...
...The injustice of the old laws made plain by knowledge and experience is to be corrected...
...14) It can not well be contended that the framers of the Constitution assumed that the Courts would exercise such supervisory power over legislation as they now lay claim to...
...The people demand the Initiative and Referendum because they wish to make or unmake laws...
...But this is only a small part of the story...
...6) The National Progressive Republican League was organized January 21, 1911...
...208-9...
...17) When it is remembered that only thirty-nine of the sixty-five delegates appointed to the Constitutional Convention signed the Constitution, and that it was only after a -protracted struggle that the ratification of the necessary number of states was secured, it is obvious that the Constitution would never have been ratified by the people had they suspected that it gave judges the power now exercised by them...
...Madison himself did move that the supreme court be given the less objectionable authority to pass upon legislation before it was finally adopted, and if the Supreme Court should hold it unconstitutional, make it necessary that the measure in question be passed by a two-thirds vote of each House before it would become effective as law...
...7) It is not pretended that there is any language in the Constitution which expressly gives to the Judiciary more than to the Executive or Legislative branches of the Government, power to determine that a law is in conflict with the Constitution...
...9) id...
...Third, that the poor man is not on an equality with the rich one before the courts...
...In the first place it is to be noted that the courts of no other Country claim the right to set aside the laws made by the legislative branch of the Government...
...Mercer as to the power of the judges to set aside law...
...9) Mr...
...this is a principle that springs from the very nature of society, and the judicial authority can have no right to question the validity of a law unless such a jurisdiction is expressly given by the Constitution...
...28th, 1911, page 3787...
...Walter Clark, L. L. D., Chief Justice of North Carolina, on "Judicial Supremacy", The Arena, Feb...
...This motion was three times made in the Constitutional Convention and three times voted down...
...It is within the scope of these articles only to suggest the leading facts upon which this question turns...
...10) Again, "I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in making out the limits of the powers of the several departments...
...First, that they have usurped the power to declare statutes unconstitutional, and therefore, invalid...
...14 page 175-6...
...Besides, it would have been absurd, and contrary to the practice of all the world, had the Constitution vested such power in them, as they would have operated as an absolute negative on the proceedings of the Legislature, which no judiciary ought ever to possess, and the state, instead of being governed by the representatives in the general assembly, would be subject to the will of three individuals, who united in their own persons the legislative and judiciary powers, which no monarch in Europe enjoys, and which would be more despotic than the Roman decemvirate, and equally insufferable...
...On June 12, 1911 the United States Senate voted in favor of a constitutional amendment, providing for the direct election of United States Senators...
...26, page 3. (4) California, Missouri, Nebraska, Oregon and Wisconsin have all provided by law, during the last few years, for a popular vote on candidates for the United States Senate...
...The state courts, at first with some hesitation, have in the main followed the lead of the federal courts...
...The people without formally amending the Constitution, have rendered nugatory the provision for the election of the President by an electoral college, and have substituted therefore a direct popular vote...
...1) Both Daniel Webster and Chance-lor Kent viewed with alarm the prospect that freehold property should cease to be the foundation of government, and it was not until the Constitutions of the Western States were adopted after 1816 that manhood suffrage became the rule...
...By the terms of the Constitution, property in the form of slaves was given representation in the government...
...11) Again he said: "Nothing has as yet been offered to invalidate the doctrine that the meaning of the Constitution may as well be ascertained by the legislature as by the judicial authority...
...and the new problems, which are the greatest that ever confronted any people in the history of the world, must also be met...
...page 399...
...The Initiative and Referendum have been lately adopted in California, Colorado, Maine, Missouri and Montana...
...Utah adopted a Constitution providing for Initiative and Referendum in 1900, but the legislature has thus far avoided enacting a law to put it into effect...
...2) Today not only is manhood suffrage practically universal (3) but the women in many of the states are now admitted to suffrage on equal terms with men, and the movement to extend suffrage to women is everywhere steadily progressing...
...15) Spirit of American Government, by Smith, pages 88 an...
...page 210...
...Either those decisions must go down and cease to be law, or the forces of democracy and popular rule must be turned back...
...it is their usurpation of the authority to do it, that I complain of, as I do most positively deny that they have any such power...
...Among its organizers are 9 leading United States Senators and 13 leading members of the House of Representatives and 6 governors of states This organization has for its avowed purpose not only the election of United States Senators by popular vote, but the establishment of the Initiative, Referendum, Recall, Direct Primaries, Corrupt Practice and other democratic legislation throughout the Country...
...To be Continued) (11) Article 6 82 Constitution of the United States...
...Michigan has the Initiative and Referendum on amendments to the Constitution...
...5) It is hardly worth while to make up the roll of states in which these various reforms have been adopted, for by the time the list is completed other states will be added...
...6) It is to be remembered that the mass of people are always much in advance of their political representatives in a movement toward democracy, so that the legislation already enacted is not the highwater mark of the popular demand...
...The people have decided that they can do this work for themselves, and have entered upon it...
...15, 1791, Martin v. Hunter, 1, Wheaton, 326...
...We have but to compare the share in government which the Constitution assigned to the people, and that which they actually possess today, to see how radical is the change which has been made in a few years...
...15) Concerning the excercise of this power by the courts, in an early North Carolina case, Mr...
...While the people have been remaking the Constitution so as to obtain more complete and immediate control of their government, the courts have been remaking the Constitution so as to escape more completely from popular control...
...The Justiciary of Arragon he observed became by degrees the lawgiver...
...Whether the Constitution conferred this power upon the courts, or whether they have simply assumed it without Constitutional authority, and contrary to the intention of the framers of that document, becomes a pertinent question in view of the agitation at the present time to deprive the courts of such power, or at least, to very materially modify it...
...Immediate control of the machinery of government is a means, not an end...
...Madison's Journal shows the following entries concerning the discussion on this subject: "Mr...
...Mercer disapproved of the doctrine that the judges as expositors of the Constitution should have authority to declare a law void...
...When the Constitution was adopted in 1787, there was no such thing as manhood suffrage in the colonies...
...Second, that having seized the power to declare some statutes invalid, because unconstitutional, the courts have come to legislate generally, by declaring other statutes invalid merely because they doubted the wisdom of the justice of such laws, and by reading their own opinions into other statutes regardless of the legislative intention...
...10) Elliot's Debates, Volume IV, page 354, (House of Representatives...
...Since that time the slaves have been not only freed, but given the ballot...
...Even the most radical of the men of 1787 who participated in the formation of the Constitution never dreamed of a government wherein the people possessed such powers as the people of this country now exercise, and the Constitution was clearly framed with a view of preventing the exercise of such powers by the masses...
...17) See Hon...
...11) id...
...This has been done again and again within the last few years...
...Charges Against the Courts THERE ARE THREE principle grounds of complaint against the courts...
...The Trend toward Popular Government GREAT as these changes are, however, they are insignificant in their effect on popular government, compared with the tremendous consequences involved in the laws providing for the Secret Ballot, and Direct Primaries, and for the Initiative, Referendum and Recall...
...date of any party for any position who maintained such a dogma...
...Their decisions, it is charged, are protecting special privilege, and represent ideas of government and of law which are in conflict with the convictions of a majority of the people...
...The tradition of the ages, which obtained when the Constitution was adopted, that the people must be protected against themselves by the wealth and intelligence and better element of the community is exploded...
...They demand the right to recall their representatives, because they are determined that those representatives shall at all times obey the popular will...
...12) John Marshall, before he became chief justice, declared before the Supreme Court of the United States: "The legislative authority of any Country can only be restrained by its own municipal Constitution...
...At all events, however, France, Germany and Switzerland, and our sister republics on this Continent, and indeed most Countries have written Constitutions and in none of them do the courts claim the prerogative of invalidating laws merely because they may think such laws conflict with the Constitution...
...16) Haines, The Conflict over judicial Powers, page 33...
...A measure has many times in recent years passed the House of Representatives by the necessary two-thirds majority, to amend the Constitution so as to elect Senators by popular vote, but such measure was never brought to a vote in the United States Senate until February, 1911, and while it failed of the necessary two-thirds majority, fifty-four Senators voted in favor of it, and only thirty-three against it...
...1908...
...The differences are much more fundamental and far reaching than those which arose at the time of the Dred Scott decision...
...writings of James Madison as edited by Gaillard Hunt...
...13) "Ware v. Hylton, 3 Dallas, 211...
...13) (7) 10th Amendment in force Dec...
...Spaight of that state, afterwards Governor of that State, said: "I do not pretend to vindicate the law which has been the subject of controversy...
...12) id...
...9, Page 150...
...No man could now be the candiCon...
...4) (1) The American Nation, A, History (A...
...The right to vote or hold office was dependent on property qualifications...
...California, South Dakota and Washington already have the recall...
...The courts are frankly the champions of the old order as against the new...
...Carrying out the idea of the distrust of the masses, the Constitution provided for the election of United States Senators by the legislatures of the several states...
...There has been more fundamental legislation in favor of popular government enacted in the last fifteen years than in all the previous history of the Country, and that which has already been adopted is only a small part of the program now pending...
...Madison himself some years after the Constitution was adopted, declared in Congress" that a decision of a Constitutional question "may come with as much priority from the legislature as any other department of Government...
...The differences between the people and their courts today do not arise, as on some occasions in the past, over a single decision...
...The House had previously voted favorably to the same amendment, but since the resolution was amended by the Senate, it had to go to conference, where it is at this writing...
...8) "Mr...
...The debates in the Convention negative any such idea, as does the fact that the attempt to exercise such power by the State Courts over state statutes had been sharply rebuked by the people...
...Greater reforms in government have resulted from the peaceful methods of the last quarter of a century than were accomplished by the American Revolution...
...Madison's Journal of that Convention, first published in 1839 and then under the authority of the United States Government, and many years after the death of all the participants in the Convention, that no motion was made in the Convention to give the courts power to declare unconstitutional any legislative act duly passed and approved by the executive...
...This certainly was a logical argument, and when the framers of the Constitution desired to give the federal courts power to decide a state statute or Constitution invalid because in conflict with the federal Constitution, or the laws made in pursuance thereof, or treaties made under the authority of the United States, the power so to do was expressly given...
...Dickinson was strongly impressed with the remark of Mr...
...In England, of course the Constitution is unwritten, but the fact would seem to be an argument in favor of the exercise of such power by the courts, rather than against it, for where the Constitution is written so that it may be read as well by one department of the Government as another, there would seem to be less excuse than otherwise for lodging the exclusive right to finally interpret the Constitution in one branch of the Government to the exclusion of the others...
...It is to be remembered also that the Federal Government has only such powers as are delegated to it...
Vol. 3 • June 1911 • No. 25
