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The Courts and the Children

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Robert M. La Follette

From an address before convention of
the American Federation of Labor,
June 14, 1922, Cincinnati, Ohio.

Mr. President and Members of the American Federation of Labor: I count it a great honor and a great privilege to be given the opportunity to appear before you here today. Permit me, sir, to say out of a full heart that I deeply appreciate your more than generous words of introduction to this great audience. A century and a half ago our forefathers shed their blood in order that they might establish upon this continent a government deriving its just powers from the consent of the governed in which the will of the people, expressed through their duly elected representatives, should be sovereign. By a process of gradual encroachments, uncertain and timid at first, but now confident and aggressive, sovereignty has been wrested from the people and usurped by the courts.

Today the actual ruler of the American people is the Supreme Court of the United States. The law is what they say it is and not what the people through Congress enact. Aye, even the Constitution of the United States is not what its plain terms declare, but what these nine men construe it to be. In fact, five of these nine men are actually the supreme rulers, for by a bare majority the court has repeatedly overridden the will of the people as declared by their representatives in Congress, and has construed the Constitution to mean whatever suited their peculiar economic and political views. The nine lawyers who constitute the Supreme Court are placed in positions of power for life, not by the votes of the people, but by Presidential appointment. Ex-President Taft recently was made Chief Justice by President Harding. Thus a man was invested with the enormous prestige and influence of the Chief Justice of the Supreme Court by Presidential appointment who had been repudiated by the voters of the United States on his record as President. After they had experienced a single term of his administration as Chief Magistrate and studied his attitude, his acts, his sympathies on public questions for four years, they declined to re-elect him President.

No one will contend that he could have been elected Chief Justice of the Supreme Court by vote of the people. And yet made Chief Justice by presidential appointment, Mr. Taft wrote the opinion that annulled the Child Labor Law. He also wrote the opinion in the Coronado Coal Company case. In making this observation, I level no criticism at the personnel of the present Supreme Court. I am not concerned with personalities. I am dealing with fundamentals. The present court is probably up to the average of that court in ability, wisdom, and character; but these judges, even though they sit upon the Supreme Bench of the United States are, after all, but men. I am concerned only with allowing them or any other body of men so chosen to have supreme power over the happiness, the rights, and the very lives of the 110,000,000 people of the United States.

Sharing the sovereign power of the Supreme Court, but in every way subordinate to it, is the array of minor Federal judges. Many of these Federal judges are excellent and enlightened men, with a high sense of justice. Some of them, notably Judge Anderson of Indiana and Judge McClintic of West Virginia, have, in my opinion, shown themselves to be petty tyrants and arrogant despots. Here again I am not attacking the personalities or opinions of individual judges. I am dealing with the fact, which cannot be denied, that we are ruled by a judicial oligarchy. Even if all these Federal judges were men of the greatest wisdom, the most irreproachable character, and the broadest views, the essence of the situation would not be altered. If this were the case, and unfortunately it is not, we would merely have a benevolent despotism—a system repugnant to every American ideal.

From what source, it may be asked, have the Federal judges derived the supreme power which they now so boldly assert? Not only was such power not given to the judiciary in any constitution, State or Federal, but the records of the Constitutional Convention show that when it was proposed in the Constitutional Convention that judges should have a veto upon acts of Congress, it was decisively defeated on four separate occasions, and at no time received the support of more than three States. As a matter of fact, no member of the Constitutional Convention was bold enough to bring forward a proposition that Federal judges should have the power of nullifying a law after it had been enacted by Congress and approved by the President. The most extreme measure offered exalting the power of the judiciary was merely the proposal, presented by Madison and James Wilson, that the Supreme Court have the same power as the President to pass upon legislation before its final adoption, and if the Supreme Court should hold it unconstitutional, that the measure in question should be passed by a two-thirds vote of each house before it should become effective as law. It was in this restricted form that the members of the Constitutional Convention overwhelmingly rejected the theory of a "paramount judiciary.

There is, therefore, no sanction in the written Constitution of the United States for the power which the courts assert. They have secured this power only by usurpation. Thomas Jefferson foresaw this inevitable encroachment of the judiciary upon the sovereignty of the people, and used his mighty powers to resist it. He said: “It has long been my opinion, and I have never shrunk from its expression, that the germ of dissolution of our Federal Government is in the judiciary—the irresponsible body working like gravity, by day and by night, gaining a little today and gaining a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped.”

In extending their jurisdiction in other directions, the Federal courts have often gone to the judiciary of England for precedents, but in asserting their right to set aside the laws of Congress they have never looked in that direction, and for a very good reason. As Chief Justice Clark of the Supreme Court of North Carolina has aptly said: “The courts have attempted only once in England to assert a right to set aside an act of Parliament, and then Chief Justice Tresillian was hanged and his associates exiled to France, and hence subsequent courts have not relied upon it as a precedent

No court of England since Tresillian's day has refused to obey an act of Parliament.”

In the beginning encroachment by the Federal judiciary was very gradual. In the case of Marbury vs. Madison, where the power of the judiciary to nullify statutes was first formally declared, it is worthy of note that this principle was not involved in the decision, but was asserted only as an opinion of the court, and that it was further qualified by the statement that it is only legislation “clearly repugnant to the Constitution" that can be declared void. That was the first time they undertook to say anything on the subject and then they said it had to be a very plain case about which there could be no dispute.

This is one of the commonest stratagems of the court. The particular case is decided in accord with the popular attitude, but there is often adroitly introduced into the decision what lawyers call obiter dicta—that is, a carefully worded declaration as a mere incidental and collateral expression of opinion not material to the decision of the case before the court, but which is injected into the case at bar to prepare the way for a contemplated decision when the occasion shall be more opportune.

This, it may be remarked, is exactly what the Supreme Court did the other day in the Coronado case, where it dismissed the case against the United Mine Workers, but laid down a line of policy which will in future be relied upon by all Federal and many State courts to limit and hamper, if not destroy, not only trade unions but organizations of farmers and others who are concerned in bitter controversies against the powers of entrenched wealth.

Until recent years the Supreme Court ventured to assert this great power to override the acts of Congress only upon rare occasions and at widely separated intervals of time. As only a relatively small part of the people were directly affected by any of these decisions, the public as a whole were not aroused to the dangerous usurpation which was taking place. There were, it is true, occasions, such, for example, as the decision that Congress did not have the right to levy an income tax, which aroused the entire country, but in these cases the evil was cured by constitutional amendment overruling the Supreme Court, so that the direct question of the court's usurped power did not become a continuing issue.

For several years before the outbreak of the Great War, however, the people had become aroused to this dangerous situation and a continuous campaign was being conducted to check or correct it. This, you will recall, was one of the issues in the campaign of 1912, when Theodore Roosevelt brought forward as his remedy a proposal for the recall of judicial decisions. The growing movement for the reform of the American judiciary, like many great reform movements of that kind, was interrupted and set back by the outbreak of the World War. But the judiciary was not checked. On the contrary, it availed itself of this period, when the attention of the people was diverted by the problems of war and of reconstruction, to extend its powers and to nullify the acts of Congress with greater boldness than it ever before displayed.

Several years ago Justice Harlan, one of the wisest and most far-sighted men who ever sat upon the Supreme Court, said: “When the American people come to the conclusion that the judiciary of this land is usurping to itself the functions of the legislative department of the Government, and by judicial construction only is declaring what should be the public policy of the United States, we will find trouble. Ninety millions of people all sorts of people with all sorts of opinions—are not going to submit to the usurpation by the judiciary of the functions of other departments of the Government and the power on its part to declare what is the public policy of the United States.”

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In my opinion, the time of which Justice Harlan spoke, is now at hand. I believe that the decisions of the Supreme Court and the injunctions of the lower Federal Courts, coming as they have as the culmination of a long train of judicial usurpations, have aroused every citizen who pretends to have any concern for the welfare of the country.

I believe that this question of judicial usurpation is now a supreme issue. The decision handed down by the majority of the Supreme Court on May 15 last, in what is commonly known as the Child Labor Case, is merely one of the latest manifestations of the usurpation of power by that court.

Assuredly it is not necessary in this presence to discuss the evils of child labor in our industrial system. The conscience of the people in this country has been aroused upon that subject both by daily witnessing the baleful results of pressing children of tender years into the service of greedy and selfish employers, and by scientific knowledge of the race deterioration that results from depriving childhood of its inherent right to grow and develop under normal conditions.

The question here is not whether the people wanted the Child Labor Law. That they demanded it, and that Congress enacted it in response to enlightened public opinion, is certain. When I first came to the Senate in 1906, the evil of child labor in the United States was one of the foremost subjects of interest and discussion in Congress and throughout the country. Not until ten years later, however, was the Child Labor Act passed. But when the vote on the bill was finally taken there were 337 to 46 in favor in the House and 52 to 12 in the Senate.

Back of this vote was the enormous pressure of public opinion, a tremendous expenditure of energy and effort. In addition to the mighty power of the American Federation of Labor, and labor organizations generally, the women's organizations of the country had worked unceasingly, unitedly, disinterestedly for the passage of the bill. The women's clubs, the Consumers' League, the Women's Trade Union League, the Federal Children's Bureau were all powerful factors in securing the enactment of the Child Labor Law.

Any discussion of this subject must take into consideration the immense setback to human progress which naturally follows the annulment of the Child Labor Law. It is a great task to overcome the loss of enthusiasm, the disappointment and discouragement on the part of those who have given years of life and service to a cause when it is defeated. The people are made

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