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1896, the Democratic Convention, like the Republicans in 1860, denounced the decision, saying that it was contrary to "the uniform decisions of that Court for nearly one hundred years," the Court having sustained objections to the law "which had been previously overruled by the ablest judges who have ever sat on that bench." The Democrats also denounced "government by injunction as a new and highly dangerous form of oppression by which Federal judges, in contempt of the law of the States and rights of citizens, become at once legislators, judges, and executioners."

The Weak

Supreme

Court.

The reversal of the Supreme Court's decision in the legal-tender cases revealed the weak point in its organization. It is within the power of Congress and Point in the the President to "pack" the Court, if they Armor of the have a mind to do so. The number of the Court can be increased by act of Congress from nine to fifteen, or to any other convenient number. If Congress and the President are determined to do what the Court asserts to be unconstitutional they have only to reorganize the Court by increasing the membership and by filling up the Court with judges who will give the desired opinion. If the opinions of the President's new appointees to the Court can be known in advance, almost any case that it is desired to have reversed could be reversed in this way. This would of course impair the usefulness of the Court, and while this manner of controlling it by political legislation is possible it is hardly probable. The respect of the Americans for law and for this their highest legal tribunal may be depended upon to restrain

In 1912, after nearly twenty years of effort by the friends and advocates of an income tax, such a tax has been enacted and made legal. The 16th Amendment to the Constitution (1912) confers on Congress the power to impose an income tax without apportioning it among the States according to population. See the Constitution, Art. I., Sec. 2, Clause 3. As a direct tax the Court had held that it must be so apportioned.

action in this direction. There should be some way by which the sovereign will of the people can work out its purposes, even against the obstacles of court decisions. The Court must be, in the last resort, amenable to the will of the people.

A State Judge

may Set Aside a National

As national judges may declare a State law unconstitutional, so may a State judge declare a national law unconstitutional. He may be overruled in this decision by a national court on appeal, but if a State circuit judge, or even a justice of the peace, finds a national law in his way in the trial of a case and if, in his judgment, the law is unconstitutional, it is his right, or rather his duty, to say so. If he does not judge aright there is a chance for a higher court to say so.

Law.

Law."

Can the Judiciary Subordinate the Legis

Although this practice of declaring acts unconstitutional is described by the jurists as merely revealing and interpreting the law, and not making the law," Court-made yet the practice makes possible a good deal of "court-made law,"-law that is made, or prevented, by decisions and constructions contrary to the legislative intention. In deciding what law we shall have and in the determination of public policies, this practice seems very much like establishing the supremacy of the courts over the legislature. In 1895, for instance, the Supreme Court of Illinois declared the eight-hour law of that State unconstitutional on the ground that the right to make contracts is an inherent and inalienable right, and this eight-hour law abridged this right, restricting the fundamental right of the citizen to dispose of his time as he pleased. A New York court has lately held that such a law violates the freedom of contract guaranteed by the Constitution. The progressive inheritance tax of Ohio, by which it was sought to place a fair share of public burdens upon the receivers of great wealth, was declared to be unconstitu

lature?

tional by the Supreme Court of that State, on the ground that, by a provision of the Constitution of Ohio, citizens of that State may be taxed only in proportion to their property. If the English courts had possessed such powers every one of the progressive labor laws of that country by which the hours of labor for women and children have been shortened might have been overthrown, and the Progressive Income Tax law might have met the same fate.

"These decisions illustrate the fact that the American system of the supremacy of the courts is less democratic in practice as well as in theory than the English system of the supremacy of Parliament. Parliamentary government makes possible more legislation in behalf of the common people than government by the courts. The contrast between the English and American systems brings out strongly two points: first, that written constitutions instead of being a safeguard for the common people may be a safeguard to vested interests; and secondly, the fact that in England Parliament is supreme and can do almost anything facilitates the passage of progressive laws to an extent that is impossible where courts are supreme.'

How Cases
Arise and
Decisions

The Court never goes to meet a question. It awaits the question to come before it by a suit at law. Smith sues Brown in Texas, and after the decisions of lower courts in that State and after the law's further delays, the case comes up on appeal to the Supreme Court. It is only then that the Supreme Court can notice the questions involved, though they may have been discussed in Congress and in political circles for years before. The Justices will not express an

are Secured.

1 Outlook, April 6, 1895.

On this subject and on the topics of the recall of Judges and recall of judicial decisions the reader should consult E. S. Corwin's The Doctrine of Judicial Review; J. Allen Smith's The Spirit of American Government; A. C. McLaughlin's The Courts, The Constitution and Parties; L. G. Haines' The American Doctrine of Judicial Supremacy; also for brief discussions the author's Political Parties and Party Problems in the United States.

opinion upon the constitutionality of a law in advance of a case arising under it, nor upon any proposed measure. They will not advise the Executive as to the constitutionality of a law. In 1793, Washington requested the opinion of the Court on the construction of the French treaties of 1778. The Justices refused to comply. In some States the constitution requires such an opinion from the court as a speedy means of determining the status of the law. In such cases an opinion on a proposed law becomes a constitutional duty. In the absence of such a means of coming by an authoritative decision, the Executive must consult his Attorney-General. A Justice while ruling upon a law is, of course, in no way bound, not even by the law of consistency, to decide in harmony with an opinion he may previously have expressed while acting in another capacity. In 1862, while Chief Justice Chase was Secretary of the Treasury he urged the passage of the Legal Tender Act and he expressed the opinion that it was constitutional. In 1870, while acting as Chief Justice, he rendered a decision against the constitutionality of this law.

The great function of the Supreme Court in the development of our Government has been the interpretation and construction of the Constitution.

The Constitution has changed and developed in three ways: 1. By amendments; 2. By interpretation and construction; 3. By usage..

Amendments to the Constitution may be made

in two ways:

The Con

stitution

Develops:

1. By Amend

ment.

If

(1) Congress may by a two-thirds vote of each house prepare and propose an amendment. this be ratified by the legislatures of three fourths of the States it becomes a part of the Constitution. Fifteen amendments have been obtained in this way. Of these, however, ten were obtained at the beginning, urged almost as a condition precedent to the adoption of the Constitution, and these ten may be regarded therefore as

a part of the original instrument, while the last three amendments were approved by a sufficient number of States under very extraordinary political circumstances. In more than one hundred years only two amendments have been added under ordinary conditions. Growth by the process of amendment is very difficult and laborious.' (2) The other method of amendment is that Congress, upon the application of the legislatures, or conventions, of two thirds of the States, shall call a Convention for proposing amendments, these proposals to be valid when ratified by the legislatures, or conventions, of three fourths of the States. No amendment has ever been obtained by this method.

2. By Interpretation and Construction.

While the Constitution has developed considerably by amendment, it has been developed much more by construction and interpretation and especially by construction. Interpretation and construction are frequently used interchangeably, but a distinction between them should be drawn. Interpretation has to do with the meaning of the written text. It is the art of finding out the true sense of any form of words; it applies to questions as to the meaning of a term or phrase, with the purpose of making clear and understood any passage that was before ambiguous and uncertain. A case arises, and it is claimed that the Constitution says something which bears or is supposed to bear upon the matter. What do the words in question mean? And do they bear upon the case? These are struction and questions of Interpretation. Construction has to do with the Constitution as a whole. seeks and applies the probable aim and purpose of the whole document, determining what powers result from it or are implied in it. Construction compares one part of the Constitution with all other parts and it takes cognizance of subjects that lie beyond the direct expressions

Difference

between Con

Interpretation.

I See p. 343.

It

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