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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 should 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 cdurts 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 of disapproval, for no court in England since Tressilian's day has refused to obey an Act of Parliament.
Prior to the American Revolution, the Acts of our Colonies were sent home to England, where they were allowed or disallowed by the Privy Council, for in this way the Mother Country held its control over the Colonies. After the acknowledgment of the Independence of the Thirteen Colonies, and before our Federal Convention met at Philadelphia, the courts of four States—'New Jersey, Rhode Island, Virginia and North Carolina—had assumed to themselves the power formerly exercised by the Privy Council in England. This met immediate and strong disapproval, and in Rhode Island the Judges were "dropped." These decisions were well known to the members of the Convention at Philadelphia. Mr. Madison and Mr. Wilson favored the new doctrine of the "paramount Judiciary" as a safe check upon legislation, for government by the people was new and the property-holders were fearful of the excesses of an unrestricted Congress.
The attempt was to get the Judicial veto into the Federal Constitution in its least objectionable shape, by submitting the Acts of Congress to the court before the final passage of an Act, but even this failed, for, though four times presented by these two very able and influential members, this suggestion of a "Judicial Veto" at no time received the votes of more than one-fourth of the States. There can be no doubt that if such power had been inserted the Constitution would never have been ratified by the several States.
It is true that the Constitution does prescribe that the Constitution of the United States, and the Acts passed under the authority thereof, shall be supreme over the State Constitutions and laws. This is necessary in any Federal government. This does not, however, confer upon the Supreme Court the power to set aside Acts of Congress, like the Income Tax and other statutes, not involving the boundary line between State and Federal jurisdiction. The very fact that this provision was put into the Federal Constitution shows that the Convention did not intend to confer upon the court the unlimited power claimed later under "Marbury v. Madison." Aware of this defect, the court since the war has sought to found its jurisdiction to nullify Congressional action upon the Fourteenth Amendment. It has been well said that that Amendment, which was intended for the protection of the negro, has failed entirely in that purpose, but has become a very tower of strength to the great aggregations of wealth. Not only no force can be justly given to the construction placed by the court upon the Fourteenth Amendment, from the knowledge of the history of its adoption, but the words used cannot fairly be interpreted as they have been. "Due process of law" means the orderly proceeding of the courts, and the "equal protection of the laws" was never intended to give to the Federal Courts irreviewable supremacy over Congress and the President.
It is not too much to say that the ingenious reasoning in Marbury v. Madison and the construction placed upon the Fourteenth Amendment have had the same origin in the desire of the court to amplify its jurisdiction and of the great interests to hold the court as a shield between them and the action of Congress and the Legislatures when they have not succeeded in defeating legislation by fair means or foul.
But, as a last resort, it is urged, must not Congress and the Legislatures obey the Constitution? Most certainly. The members take an oath to do so, and there is as much patriotism and, considering the larger size of legislative bodies, a greater aggregate intelligence in them than in the courts. But it does not follow that if a Legislature, or Congress, misconceives or violates the Constitution, that the court has the power to nullify their action.. The only supervising control of the Legislative given by the Constitution is the veto of the Executive, not of the court, and that executive veto is only suspensive. If the Legislature