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THE

AMERICAN LAW REVIEW.

JANUARY-FEBRUARY, 1916.

BACK TO THE CONSTITUTION. Law was long ago defined as “A rule of action prescribed by the supreme power in the State, commanding what is right, and prohibiting what is wrong.” Which is the body in this country which has the last supreme word in legislation? Under our form of government we have an Executive, a Legislative and a Judicial department. The theory taught in the law schools is that each of these is separate and distinct, and that neither can interfere with the other. Laying aside preconceived opinions and deceptive forms of expression what is the real government which we have?

The Legislative is understood to be the lawmaking body as its name imports. If so, it should be the supreme power here as in England. In what way does the Constitution of the United States and the Constitutions of the States place any restrictions upon that body? According to the Federal Constitution, and that of nearly all the States, there is only one restriction, another department can place upon the lawmaking body, and that is that the Executive can interpose his veto upon any legislation which does not seem good to him, but the Constitutional Convention did not see fit to make this an absolute veto. For that would have placed the supreme power in the Executive. The ExecuVOL. L. Govole 1

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tive was not given the last word but it was provided that by a certain vote which is two-thirds in the Federal Constitution, and varies in the different States, the veto can be overruled by the lawmaking body, if it adheres to its views. This is in accordance with the theory of our government which is that the lawmaking body is one of restrictions, that is that it represents the people and has all power that is not denied it by the organic law. Whereas, the Executive and Judicial are grants of power and have no authority except that conferred by the Constitution. This is the statement made by Black and sums up correctly the analysis of our State and Federal Constitutions, as they are written. In the Federal government which is not an original sovereignty, but the creation, after the Revolution, of the States, the authority of the Federal lawmaking body is also a grant of power, for it has, or correctly should have, no powers except those expressly conferred or necessarily inferred from those that are given.

Now as to the Executive (both State and Federal) its only powers are those which are expressly given or derived by necessary inference from those that are conferred. The only authority given this department to interfere with the others in any way is the veto already mentioned and that is not absolute but subject to be overruled by a legislative vote. In four States-Rhode Island, North Carolina, West Virginia and Ohio—the Governor was even denied any veto power though in some of these in later years it has been conferred.

As to the Judicial department the power of the Executive over it was in the appointment of the Judges. This at first wås very general but now the number of States has been reduced to seven in which they are appointed by the Governor, with the consent of the Senate. The control of the Judiciary department by the Legislative was more complete in that in those States where the Governor appoints, the Senate branch can affirm or reject his nomination, and

1 Cons. Law, sec. 100.

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 de- , partment 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. III, 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

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