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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, . 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, be
came 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
excessive heat in their trade. The highest court in New York promptly held that the people of the State could thus. protect the health and the lives of its laborers. The case was carried into the Supreme Court of the United States, and there by a vote of five infallible Judges against four fallible Judges the powers of the State were set aside and it was held that the great State of New York could not thus protect the lives and health of its laborers because it would interfere with the “liberty of contract.” The reason given was worse even than the usurpation of authority. It was an insult to the intelligence of the public, for everybody knew that these bakers were not seeking to vindicate the liberty of contract, but were asking to be protected in their lives and health. The decision of the court was in truth based upon unwillingness to curb the power of the employer over the employee.
Further back we were treated to the spectacle in the “Dartmouth College case” of the court holding that the charter of a corporation was not a privilege, but a contract, and therefore irrevocable, with the sequence that if a corrupt Legislature could be induced to grant a charter no subsequent honest Legislature could revoke it. There would be no place left for the people to control their own government. To meet this condition, the people of the several States promptly made amendments to their Constitutions by which it was provided that charters of all corporations granted thereafter should be subject to change, modification or repeal at the will of the Legislature. It was thus that the people were forced to regain their control over their creatures by nullifying the decision of the courts.
For one hundred years the court had held an income tax constitutional. By this means, indispensable aid had been given to the party of the Union in carrying on the Civil War. But those who were called upon to pay the income tax, the multimillionaires and great corporations, again presented a case calling in question the validity of the action of Congress. The court, following the precedents
from the foundation of the government, but only by a bare majority again affirmed the power of Congress. Soon thereafter one of the majority Judges, having received possibly a wireless intimation of the views of the thirty-nine men who signed the Constitution at Philadelphia in 1787, let it be known that he had experienced a change of heart. A petition for rehearing was granted, and then by another vote of five infallible Judges against four fallible Judges (with a change of personnel, however), the Act of Congress was held unconstitutional, though it had been passed by an almost unanimous vote in both Houses of Congress and had been approved by the President.
The result of this astounding change was that more than $100,000,000 of taxes annually were transferred from those best able to pay them and upon whom Congress, with the approval of the President, had placed them, and were placed upon the toiling masses who were already overtaxed. The people of the Union would not stand for this and again a Constitution amendment was passed and finally adopted. But in the meantime it is estimated that more than $2,000,000,000 were levied upon the producers of the country to the exemption of the great corporations and of the multimillionaires upon whom Congress in the discharge of its duties and powers had seen fit to lay it. .
Other instances of this abuse of irresponsible power by the courts could be cited, in the Federal Supreme Court, and many in the State Courts. But it should go without saying that irresponsible and irreviewable power is always tyranny. Even if its effects are not always as evil as in the cases thus cited, it is intolerable because it is in contradiction of the will of the people upon whom we boast that our government rests. “All power proceeds from the people and should be exercised for their good only."
Not only such power was not given to the Judiciary in any Constitutions, State or Federal, but in the Convention at Philadelphia there was an attempt to put it in the Constitution. It was voted down, though the clause was brought forward by James Madison, afterwards President of the United States, and by James Wilson, afterwards a member of the United States Supreme Court. That Convention sat with closed doors, with its members sworn not to communicate any of its proceedings to their constituents, and a vote to destroy its journal was prevented only by a bare majority. That journal was not made public for forty-nine years, and we now know from it that this proposition that the Judges shơuld pass upon the constitutionality of Acts of Congress was defeated four times, i. e., first on June 4, 1787, receiving the vote of only two States. It was renewed no less than three times, i. e., on June 6, July 21, and finally for the fourth time on August 15, and at no time did it receive the votes of more than three States. On this last occasion (August 15th), Mr. Mercer thus summed up the thought of the Convention: “He disapproved of the doctrine that the Judges, as expositors of the Constitution, should have authority to declare a law void. He thought laws ought to be well and cautiously made and then to be incontrovertible.”
The doctrine that the courts can set aside an Act of the Legislature has never obtained in England, which has no written Constitution, nor in France, Germany, Holland, Belgium, Denmark, Austria, Norway and Sweden, or in any other country that has a written Constitution. Its assertion in this country has not therefore even the “tyrant's plea of necessity.” The rest of the world have gotten along very well without it.
The courts have attempted only once in England to assert a right to set aside an Act of Parliament, and then Chief Justice Tressilian was hanged and his Associates exiled to France, and subsequent courts have not relied upon it as a precedent.
Of course, there have been expressions at times in the courts of England criticising Acts of Parliament, generally with great modesty, but sometimes saying that they were not valid, but this never extended beyond an expression