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An army fighting for liberty at home, and an army fighting against liberty abroad is the measure of constitutional progression which gives truth to these words. The cautious ninth and tenth amendments have turned out to be of no binding consequence? For, as seen, although the constitution is a grant of power; although enumeration of powers shall not be construed to deny or disparage those retained by the people; although powers not delegated are retained by the people—a system of legal sophistry, devised in large part by Hamilton and perfected by his followers, has sufficed to incorporate companies, confer special privileges and ingraft the very substance of monarchy upon the republic in the form of colonialism. What could the general government have done in addition if the people in the states had surrendered to it all power whatsoever? This denouement would be ridiculous if the ultimate scene already foreshadowed did not give promise of one of the most deplorable declines recorded in history.

This, then, is the foundation upon which rests the whole superstructure of that alleged sovereignty which never existed in the constitution. As it was cemented with a mixture of falsehood and fraud it is doomed to dissolve in the process of time which eats away all that is unreal; but when the foundation falls will not all that was good in our system perish with all of this created evil? What providence will reverse the universal rule?


One of the great political parties has already taken a conventional stand in favor of electing senators by a direct vote of the people. This question when recently brought to an acute point of discussion was met by Senator Lodge of Massachusetts by an astonishing objection. It was that the election of senators by the people would destroy the constitutional theory of senators as representing states. The essence of his objection, if he were correctly reported, consisted in regarding the senators as “Ambassadors of the states," which their popular election would un-character. It cannot be perceived how the manner of their election by a state would make them less the representatives of the state as such. But this objection made by an exponent of the school which has taught that the constitution was the product of the people of America, and not the people of the states of America seems incongruous.

A reform of equal, if not indeed of deeper moment, is the election of the members of the Federal judiciary for terms of moderate length. The reasons which were urged in favor of a Federal judiciary appointed for life were long ago discovered to be pretentious and unsound. The Federal courts have for so long a time pursued a course of systematic usurpation that doubt can no longer be maintained against the accumulating

proof that these tribunals are today among the greatest enemies of justice and liberty.

Hamilton, in the 78th number of the Federalist made an examination of the constitutional provision for the Federal judiciary. He concluded that the judiciary was the weakest department of the government because it held neither the purse nor the sword; that it had neither force nor will, but merely judgment; that it could never attack the executive or legislative branches of the government; that the general liberty of the people could never be endangered by the judiciary. These are very sweeping declarations, which their author was content to express without demonstration of any sort. To what extent need they be respected? The Supreme Court may validate or invalidate revenue laws. Through custom and according to the suppositious logic of the constitution, as maintained by Hamilton himself in the Federalist, the Supreme Court has the power to construe the constitution with reference to any particular law, and to hold the latter void if repugnant to the constitution. But whether the law is so repugnant rests in the judgment of the Supreme Court to decide; and therefore, what that court says the constitution imports is the ultimate and unappealable formation of the constitution itself. Construction, therefore, of the constitution relating to appropriations relates to the purse itself, to which extent the court does hold the purse. While the court has altogether successfully protected what Hamilton called the property of the country. The inferior Federal courts may, and repeatedly have, done the same thing. And this is in no artificial sense a holding of the purse also.

The legislative and executive branches of the government are attacked when the court overthrows legislation which those branches have enacted. Their powers are utterly prostrated when they can no longer perform their functions. They are subdued to the "force and will” of another mind when what they choose to call the law is declared by the Supreme Court to be void and no law. The general liberty of the people is not only endangered but infringed upon by this course; and as historic fact this has occurred repeatedly. A system which begets in the popular mind, and to a degree in the legislative mind, the idea that a judgment of the Supreme Court between private parties is a rule of political action to which the country must settle down to tolerate, is pernicious beyond expression. So much nevertheless for theory respecting the character of these courts. It is proper to refer to Hamilton's arguments in the Federalist upon these subjects because they were addressed to the people of the United States at a time when grave doubts were entertained of certain features of the constitution which these arguments had a tendency to quiet. And because since his day nothing further of moment has been advanced in favor of the appointment of Federal judges for life.

Experience has demonstrated that the theory is wrong. The Federal courts today have few friends among impartial thinkers familiar with their practices; and abhorrence of them as the merciless and willing tools of special privilege is fast gaining ground.

Hamilton thought the people should have no voice

in the making of Federal judges. If this matter should be committed to the people "there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the constitution and the laws." Let us see, then, what power outside of people can create these judges. The president, according to the original theory, was to be elected by electors, the latter being generally chosen by the legislators. Now the legislators have always been chosen by popular vote, and so their temper and character depend upon the people from whom in fact they come. The electors were taken from the body of the people by the legislature, and these chose the president. How is it then that men competent to choose those upon whose choice depends the president, who appoints the judges, cannot directly choose the judges themselves? In the choice of judges, what indeed becomes of those select bodies known as the legislatures and the electoral college which, though of aristocratical standing, for the purpose of selecting the executive, have no will in the matter of selecting the judges? As to the senators, they are the creatures of legislatures which are the creatures of the people. It is a fallacious doctrine which attributes more rightful power to agents than the principals are alleged themselves to possess. The scheme of appointment of Federal judges by the president and the senate is conceived in distrust of human nature; and yet neither the president nor the senate is distrusted in the selection, and the judges when once installed are trusted to the utmost limit upon the ground that they need not reckon with the passions of the populace. The Federal courts are

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