« PreviousContinue »
in all of them the Legislative department has supervision of the conduct of the Judges and can remove them by impeachment. In three of them—Massachusetts, New Hampshire and Rhode Island—the legislature, as in England, can remove the Judges without trial, by a majority vote.
It may be mentioned here that the common idea that the Judges in England hold absolutely and for life is a mistake. Up to the Revolution of 1688 they held at the pleasure of the King, who could remove any Judge at any time without a trial. ' Since 1688 the Judges in England, as in the three American States above named, hold at the pleasure of the Legislative department which can remove them, as the King formerly"did, at will, and without trial.
This being the status of the other two departments of the government as expressed by the organic law, what is the place contemplated for the Judiciary department, taking the Constitutions as they are written! There was given to the Judicial department no authority whatever over the other two departments of the government. There was not conferred on it, as upon the Executive, any veto over the action of either of the other two departments, not even the suspensive veto conferred on the Executive. Its members were originally appointed in all the States by the Executive, save in those in which such appointment was subject to confirmation by the Legislative department and a few States in which the Judges were elected by the Legislature. It was thus the creature of one, or the other, or of both the other departments jointly, and the members of the Judiciary were made removable as already said, by the Legislative department and in three of them they still hold at the pleasure of the Legislature. In the Federal government all the Judges of the Circuit and District Courts hold subject to the right of Congress to legislate them out of office at any moment. In 1802, sixteen Circuit Judges were thus legislated out of existence by Congress and at sundry times since District Courts have, in like manner, been abolished. As to the Federal Supreme Court, it holds its appellate jurisdiction "with such exceptions and under such regulations as Congress shall make."2 Indeed as to the Reconstruction Act, Congress enacted that the court could issue no writ to construe the validity of such statutes and the court issued none. The Judicial department therefore is the creature of the Legislative department, which from time to time can increase or diminish the number of the Judges inferior to the Supreme Court. The number of Judges on the Federal Supreme Court is not fixed by the Constitution, but by Congress, which from time to time has increased or diminished the number when it thought the public interest demanded, for instance, when it was thought desirable to change the ruling of the Court as to the Legal Tender Act.
The Court being the creature of the Legislature and subject to it for the extent of its jurisdiction and for its existence—to a large degree—whence comes it that the court has been exercising the supreme power in our government, i. e., the last word in legislation.
There is certainly no express authority for "Judicial Supremacy" or the "Judicial Veto" by which that department assumes the irreviewable and therefore the absolute supremacy over the other two departments. There is not a line in the Constitution of any State or in the Federal Constitution to authorize it. If there was, it would only be necessary to point to the words and end all debate. There would be no necessity for sophistical argument and we would be saved the absurd spectacle of attempting to support the authority of the Court upon the fact that some other court, at some other time, had made the same assertion. The former assertion is as groundless as one made now, unless the authority can be found in the Constitution.
It would be very strange indeed if any Constitutional Convention had conferred the last and ultimate power of sovereignty upon a majority of a Board of appointive Judges, an authority which was denied to the Legislature
2 Cons., Art. Ill, sec. 2, clause 2.
by the suspensive veto given the Executive; and when it had denied an absolute veto to the Executive. Yet the Judiciary, the creature of the other two departments until in more recent years (in a majority of the States, but not yet in the Federal government) the Judges have had the dignity conferred upon them of a direct mandate from the people by election at the ballot box. It may be noted also that this change from an appointive to an elected judiciary was brought about as a check upon the irreviewable and , irresponsible power assumed by the courts of setting aside the action of the Legislative approved by the Executive department.
It would consume too much space to discuss the assumption of this power by the State Courts, as it has been more flagrant in some States than in others. Latterly there has been a further curb sought to be imposed upon the assertion of this supreme power in the courts by the adoption of the "Recall of the Judges," in the State Constitution in eight States. Those who, like the writer, do not think the "Recall of the Judges" advisable, may well consider the fact that a free people will not willingly consent that the action of their duly elected representatives empowered to make their laws, and of their duly elected executive, shall be brushed aside by a bare majority of a board of lawyers without any authority conferred in the Constitution.
Have the courts assumed this irreviewable power and asserted for a majority of the court an infallibility which they have denied to the minority of the court, and to the other two departments of the government?
Taking the Federal Court as an example, a few instances will make reply. Not long after the Federal Supreme Court was created, and it will be remembered that it was created, and its jurisdiction fixed by an Act of Congress, the Judiciary Act of 1789, and not by the Constitution, that Court haled a sovereign State before it and passed sentence in Chisolm v. Georgia. Immediately the people took the alarm and the Eleventh Amendment was passed to prevent the repetition of the sight of a sovereign State being brought into court at the suit of a private individual. It was fortunate that this was done, for otherwise the docket would have been crowded since, with actions by the American Tobacco Company, the Standard Oil Company, and railroad company after railroad company bringing into court the States whose legislation was not acceptable to those great aggregations of wealth.
The next assumption of power was in Marbury v. Madison. John Marshall was Secretary of State. In January, fc 1801, he was appointed Chief Justice and qualified as such and took his seat on the bench January 30, 1801, still retaining, however, his position as Secretary of State. President John Adams having been defeated for re-election, at midnight on March 3 John Marshall, as Secretary of State, was signing and sealing commissions when, as Parton tells us, as the clock struck the hour of 12, Levi Lincoln, with President Jefferson's watch in hand, forbade Secretary of State and Chief Justice Marshall to deliver the commissions then upon the table already signed. Among them was one to Marbury as Justice of the Peace of the District of Columbia.
Soon thereafter there was brought before the Supreme Court, of which Marshall was still Chief Justice, a proceeding to compel Mr. Madison, the Secretary of State, to deliver to Marbury the commission which Marshall himself had signed while occupying the double position of Secretary of State and Chief Justice.
Instead of declining to sit in judgment upon his own act, Marshall as Chief Justice wrote a long decision in which he asserted that the courts had the power to set aside an Act of Congress, but wound up finally with dismissing the proceeding upon the ground that the court had no jurisdiction to issue mandamus, as the Act of Congress had not conferred such power. Thus in an obiter dictum this vast and irreviewable power, which places in a majority of the Supreme Court the ultimate sovereignty of the nation, became a precedent. It was known that if the court had •directed the writ to issue, Mr. Jefferson would not have obeyed it. By announcing the doctrine and refraining from any exercise of authority under it, the powerlessness of the court was veiled while its assertion of supremacy was distinctly made. Later when Chief Justice Marshall in another case did assert the power to issue a writ of ejectment in derogation of a statute of Georgia, Andrew Jackson pithily said: "John Marshall has made his decision, has he? Now let us see him execute it." It was never executed and has remained as so much blank paper. The evil from the assertion of the doctrine of ultimate supremacy of the courts has, however, abided with us.
It was not again asserted as against any act of Congress, however, for fifty-four years, and then in the Dred Scott case. The criticism of that decision by Abraham Lincoln was sharp and shrewd. That decision, probably more than anything else, made the great Civil War inevitable, and brought in its train the enactment of the Thirteenth, Fourteenth and Fifteenth Amendments.
We cannot overlook the fact that the court, in reaching out for more power, held in 1842 that a corporation was a citizen of the State which had created it. Up to that time the Court had uniformly held that a corporation was not a citizen within the meaning of the "diverse citizenship" clause of the Constitution. The result of this "change of front" was that corporations have brought their cases in the Federal Courts, in overwhelming numbers, before lifetenure, appointive Judges, most of whom have been trained in the employment of corporations. As the president of one great railroad company said when he defied a State statute regulating its rates: "The Federal Courts are the haven and home of corporations."
Later on we had another spectacle. The Legislature elected by the people of New York, in the discharge of the police powers resident in every State government, passed an act restricting the hours of labor of bakers subjected to