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In his acceptance speech, Mr. Taft said that threatened unlawful injuries to business could only be satisfactorily met by an injunction to prevent them, because a suit for damages offered no adequate remedy. He furthermore urged that the interjection of a jury trial between the orders of a court and their enforcement would fundamentally weaken the power of the court. "Under such a provision," he contended, "a recalcitrant witness who refuses to obey a subpoena, may insist on a jury trial before the court can determine that he received the subpoena. The citizen summoned as a juror and refusing to obey the writ when brought into court must be tried by another jury to determine whether he got the summons; such a provision applies not only to injunctions, but to every order which the court issues against persons. A suit may be tried in the court of first instance and carried to the Court of Appeals and thence to the Supreme Court, a judgment and decree entered, and an order issued, and then, if the decree involves the defendant's doing anything or not doing anything and he disobeys it, the plaintiff, who has pursued his remedies in lawful courts for years, must, to secure his rights, undergo the uncertainties and the delays of a jury trial before he can enjoy that which is his right by the decision of the highest court of the land."

Mr. Taft, however, expressed his concurrence in the declaration of the Republican platform to the effect that the "rule of procedure in the federal courts with respect to the issuance of the writ of injunction should be more accurately defined by statute." In his message of December 7, 1909, to Congress, he made this specific recommendation: "The ends of justice will best be met and the chief cause of complaint against ill-considered injunctions without notice will be removed by the enactment of a statute forbidding hereafter the issuing of any injunction or restraining order, whether temporary or permanent, by any federal court without previous notice and a reasonable opportunity to be heard on behalf of the parties to be enjoined; unless it shall appear to the satisfaction of the court that the delay necessary to give such notice and hearing would result in irreparable injury to the complainant, and unless also the court shall from the evidence make a written finding, which shall be spread upon the court minutes, that immediate and irreparable injury is likely to ensue to the complainant, and shall define

the injury, state why it is irreparable, and shall also indorse on the order issued the date and hour of the issuance."

The Power of Passing upon the Constitutionality of Statutes

The jurisdiction of the federal courts extends not only to cases in law and equity in the strict sense of the word; it extends to cases involving the constitutionality of state and federal laws. It is nowhere expressly provided in the Constitution that the federal courts shall have the power to declare a statute of Congress or of a state legislature invalid on the ground that it conflicts with the Constitution. Indeed, it is contended by some writers that it was not the purpose of the framers to confer such a power, especially over federal statutes, upon the courts of the United States. For example, the Honorable Walter Clark recently declared that the federal judiciary has clearly usurped authority in this regard.' Long ago, Mr. Jefferson held that it was the design of the framers to establish three coördinate and independent departments of government, and that to give the judiciary the power of passing upon the acts of the other departments would be to make that branch of the government supreme over the other two branches.2

It is, of course, not possible to determine what was the intention of every member of the convention at Philadelphia which framed the federal Constitution; and there is reason to believe that some of them, at least, did not desire to make entirely clear the precise nature of the authority which they had conferred upon the federal judiciary. Speaking of the language of the federal Constitution, Gouverneur Morris, who was one of the leaders in the convention, wrote: "Having rejected redundant and equivocal terms, I believed it as clear as our language would permit; excepting, nevertheless, a part of what relates to the judiciary. On that subject conflicting opinions had been maintained with so much professional astuteness that it became necessary to select phrases which expressing my own notions would not alarm others nor shock their self-love." 3

On the other hand, however, some of the members of the convention, even before the adoption of the Constitution, expressed See the Independent, Sept. 26, 1907.

'See Readings, p. 281.

Sparks, Life of Morris, Vol. III, p. 323.

their belief that the federal judiciary would have the power to pass upon the constitutionality of laws. This side of the case was very plainly put by Hamilton in The Federalist: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be, regarded by the judges as a fundamental law. It must, therefore, belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." At considerable length Hamilton, thereupon, elaborated and defended this function of the court as prescribed in the Constitution which the people were then being called upon to ratify.'

At all events, whatever may have been the intention of the framers, Chief Justice Marshall, in the famous case of Marbury v. Madison, demonstrated with logic that has never been answered that the Court under the Constitution possesses the power of declaring statutes void when they conflict with fundamental law."

Congress has provided by law the precise way in which the constitutionality of the statutes and acts of states may be tested in the Supreme Court of the United States. A case may be taken to that Court from the highest court of a state having jurisdiction over the cause, whenever the latter denies the validity of a federal treaty or statute or of an authority exercised under the United States. A case may be taken to the Supreme Court from any such state court whenever, during the trial, any statute of, or authority exercised under, the state in question is claimed to be repugnant to the Constitution, treaties, or laws of the United States, and is nevertheless upheld by the state court. Thus, a case may be taken into the Supreme Court from the state court, whenever the latter decides against a party or person claiming any title, right, privilege, or immunity under the federal Constitution, statutes, or treaties, or under any authority exercised in the name of the United States.

To make the process of testing the constitutionality of a state 1 The Federalist, No. LXXVIII.

2 For this important opinion, rendered in 1803, see Readings, p. 274.

statute clear, let us examine a concrete case. The legislature of New York recently passed a law providing that no employees should be required or permitted to work in bakeries more than sixty hours a week, or ten hours a day. Mr. Lockner, an employing baker of New York, claimed that this statute infringed the rights which he enjoyed as a citizen under the Constitution of the United States, and resisted its enforcement. The case was carried to the highest court in the state of New York, which upheld the statute. The decision having been against the right which he claimed under the federal Constitution, Lockner thereupon carried his case to the Supreme Court of the United States, which decided in his favor, declaring the law of New York null and void as being in conflict with certain provisions of the federal Constitution.1

It must be noted that the federal court will take no notice of the constitutionality of a statute except when the latter is brought to its attention in the form of a case involving the rights of parties to a suit. In deciding against the validity of a statute, the court does not officially annul that statute, in the way in which a governor or President might veto it; it merely refuses to enforce the statute in the particular case before it. Thereupon, the executive department of the federal government, or of the state government, as the case may be, simply drops the enforcement of the law.

In no instance will the federal judiciary consider the constitutionality of any law in the abstract or render any opinion either to Congress or to the President on the validity of a proposed statute. This practice of the court was adopted early. In 1793, Washington sought the advice of the Supreme Court by proposing to that body twenty-nine different questions, which the Court respectfully declined to answer on the ground that it could give opinions only in regular cases properly brought before it in the course of ordinary judicial proceedings."

1 See Readings, p. 617.

'The Supreme Court has not declared very many acts of Congress invalid. From its foundation to 1903 it had pronounced void only twenty-one acts of Congress. In considering the constitutionality of federal statutes the Court has laid down the rule that it will not declare a law void except when there is no doubt in the mind of the Court as to its unconstitutionality. In dealing with state laws, the Supreme Court declared, within the period mentioned above, more than 200 statutes invalid.

The power of the Court to pass upon the acts of state govern ments was early resisted by Jefferson and the stanch defenders of states' rights. They admitted the supremacy of the federal government within its sphere, but they contended that to give the federal judiciary the right to determine the validity of state laws would enable the federal government to define its own sphere of power and thus reduce the states to mere administrative subdivisions. However, the leaders of the states' rights party did not offer any adequate plan for settling amicably disputes between the federal and state governments over their respective limits of power and for obviating the endless complications that would arise from conflicting decisions in the state courts if there were no final tribunal of appeal to give uniformity to them. The logic by which the federal judiciary secures its authority to pass upon the validity of state acts is as inexorable as the logic of Marshall's opinion in Marbury v. Madison.2

Political Controversies over Judicial Authority


This power of the federal judiciary to pass upon the validity of state and federal laws inevitably involves federal courts, especially the Supreme Court, in political matters. Almost every important statute is a political act by a political body, usually by a majority composed of the members of one political party; and the power to declare such an act null and void is a political power, although under our system it is exercised in the form of a judicial decision. In determining the validity of statutes, especially federal statutes, the Supreme Court, on several momentous occasions, has been drawn into partisan controversies.

The most famous of all these controversies occurred in connection with the celebrated case of Dred Scott (1857), in which Chief Justice Taney, of southern origin, sought to accomplish the impossible feat of settling the slavery issue by obiter dicta. The central principle of Taney's opinion was that Congress had no power to prevent slavery in the territories of the United States

See the Kentucky and Virginia Resolutions, McDonald, Select Documents of United States History, 1776-1861, pp. 149 ff.

2 See Readings, pp. 140, 278.

3 See Professor Haines's temperate review of this contentious topic, The Conflict over the Judicial Powers (Columbia University Studies).

'Sec Readings, pp. 283, 288; for Mr. Roosevelt's view, Readings, p. 286.

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