Gouverneur Morris, who claims to have written the Const.i.tution with his own hand, tells us that in framing that part of it relating to the judiciary, "it became necessary to select phrases," which, expressing his own views, "would not alarm others."[70] There was, it is true, some objection in the Convention to the doctrine that the Supreme Court should have authority to decide upon the const.i.tutionality of Congressional legislation. Mercer and d.i.c.kinson believed that this power should not be exercised by the judiciary.[71] But it was contended on the other hand by Wilson, Luther Martin, Gerry, Mason, and Madison that this power could be exercised without any provision expressly conferring it.[72]

In view of the fact that it was maintained by leading members of the Convention that this power could and should be exercised by the Federal judiciary, it is but reasonable to suppose that a majority of that body wished to confer it; for had this not been the case, the Const.i.tution as submitted would have contained a provision expressly withholding it. But however much the Convention may have desired to give to the judiciary the power to veto legislation, it could not have been done by an express provision of the Const.i.tution. Any such attempt would have disclosed altogether too clearly the undemocratic reactionary character of the proposed government and thus have prevented its adoption. This end was attained indirectly through the general system of checks which the Const.i.tution imposed upon the other branches of the government and upon the people, since it made it possible for the judiciary to a.s.sume and exercise this power.

There is nothing to indicate that the people generally appreciated the significance of this feature of the Const.i.tution at the time of its ratification. Outside of the Const.i.tutional Convention the judicial negative appears to have been seldom mentioned. Hamilton, the most courageous and outspoken opponent of popular government, claimed, it is true, that it would be the duty of the Federal courts "to declare all acts contrary to the manifest tenor of the Const.i.tution void."[73] In a few of the state conventions held to ratify the Const.i.tution the power was referred to. Oliver Ellsworth in the Connecticut convention,[74]

James Wilson in the Pennsylvania convention,[75] and John Marshall in the Virginia convention,[76] expressed the opinion that the Const.i.tution gave the Supreme Court the power to declare acts of Congress null and void.

There is no reason for believing, however, that this was the generally accepted notion at that time. For even Marshall himself a few years later, as attorney in the case of Ware v. Hylton, which involved the validity of an act of the legislature of Virginia, appears to have defended the opposite view before the United States Supreme Court. In that case he said:

"The legislative authority of any country can only be restrained by its own munic.i.p.al const.i.tution: this is a principle that springs from the very nature of society; and the judicial authority can have no right to question the validity of a law, unless such a jurisdiction is expressly given by the Const.i.tution."[77] The mere fact that he presented this argument shows that the view which he afterwards held as Chief Justice of the United States Supreme Court was not then generally accepted. His contention on this occasion that the judiciary can not annul an act of the legislature unless the power be expressly conferred may have been at variance with the opinion which he really held, but it certainly was not opposed to what he regarded as the generally accepted view; otherwise, his argument would have been based on an admittedly false theory of judicial powers. The conclusion is irresistible that at this time the right of the judiciary to declare a legislative act null and void was not generally recognized. The framers of the Const.i.tution clearly understood that this power was not implied in the sense that it was then a recognized function of the judiciary, or one necessarily contained in the Const.i.tution as they interpreted it to the people to secure its adoption. It was by controlling the Executive and the Senate, and through these the appointment of Supreme judges, that they expected to incorporate this power in the Const.i.tution and make it a permanent feature of our political system.[78]

This purpose is evident in the appointments to the Supreme bench made during the twelve years of Federalist rule that followed the adoption of the Const.i.tution. Of the thirteen chief and a.s.sociate Justices appointed during this period, five had been members of the Const.i.tutional Convention.[79] Eleven had been members of the various state conventions held to ratify the Const.i.tution.[80] Three, as shown by the records of the federal and state conventions, had unequivocally expressed themselves in favor of the exercise of this power by the Supreme Court,[81] while another, James Iredell, had taken an active part in securing the first reported decision in which an act of a state legislature was declared null and void by a court on the ground that it was contrary to a written const.i.tution.[82] Only one in this entire list had not taken part directly in framing or adopting the Const.i.tution by serving as a delegate to the federal, or a state convention, or both.[83] All had been ardent supporters of the Const.i.tution and were in full sympathy with its main purpose.

It is true that Washington in the winter of 1795-6 offered the Chief Justiceship of the United States Supreme Court to Patrick Henry, who had been the ablest and most conspicuous opponent of the Const.i.tution in the Virginia convention. Henry had, however, as Presidential elector voted for Washington for President in 1789 and had in the meantime become reconciled to the Const.i.tution. Moreover, while he had been opposed to many features of the Const.i.tution, he was from the first in full sympathy with the judicial veto. He thought the Const.i.tution was defective in that it contained no a.s.surance that such a power would be exercised by the courts. In his argument against the ratification of the Const.i.tution in the Virginia convention he said:

"The honorable gentleman did our judiciary honor in saying that they had firmness to counteract the legislature in some cases. Yes, sir, our judges opposed the acts of the legislature. We have this landmark to guide us. They had fort.i.tude to declare that they were the judiciary, and would oppose unconst.i.tutional acts. Are you sure that your Federal judiciary will act thus? Is that judiciary as well constructed, and as independent of the other branches, as our state judiciary? Where are your landmarks in this government? I will be bold to say that you can not find any in it. I take it as the highest encomium on this country, that the acts of the legislature, if unconst.i.tutional, are liable to be opposed by the judiciary."[84]

The fact that only those who were in sympathy with the Const.i.tution were recognized in these appointments becomes the more significant when we remember that several of the leading states ratified it by very slender majorities. In New York, Ma.s.sachusetts, and Virginia the supporters of the Const.i.tution barely carried the day; yet they alone were recognized in the five appointments to the Supreme bench from these states made during the period above mentioned. The opponents of the Const.i.tution represented, moreover, not only in these states, but in the country at large, a majority of the people. Nevertheless, true to the purpose of those who founded our Federal government, the popular majority was entirely ignored and the Supreme Court so const.i.tuted as to make it represent the minority. Through these appointments the Federalists secured an interpretation of the Const.i.tution in harmony with their political theories and thereby established the supremacy of the judiciary in our scheme of government. The subsequent success of the Supreme Court in a.s.serting and enforcing its right to annul acts of Congress completed the establishment in this country of a form of government which Professor Burgess correctly describes as an "aristocracy of the robe."[85]

The full significance of this annulling power is not generally understood. The Supreme Court claims the right to exercise it only as the guardian of the Const.i.tution. It must be observed, however, that while professing to be controlled by the Const.i.tution, the Supreme Court does, as a matter of fact, control it, since the exclusive right to interpret necessarily involves the power to change its substance. This virtually gives to the aristocratic branch of our government the power to amend the Const.i.tution, though this power is, as we have seen, practically denied to the people.

We have become so accustomed to the exercise of this power by the courts that we are in the habit of regarding it as a natural and necessary function of the judiciary. That this is an erroneous view of the matter is shown by the fact that this power "is scarcely dreamed of anywhere else."[86] In other countries the power is unknown whether the Const.i.tution be unwritten as in England or written as in France, Germany, and Switzerland. Nor does it make any difference whether the government be national in character as in England and France, or federal as in Germany, Switzerland, and Australia. In no other important country are the courts allowed to veto the acts of the legislative body. The exercise of this power can be justified here only on the ground that it is indispensable as a means of preserving and perpetuating the undemocratic character of the Const.i.tution.

"This power [the Supreme Court] has the last word in the numberless questions which come under its jurisdiction. The sovereign people after a time conquers the other powers, but this Supreme Court almost always remains beyond its reach. For more than twenty or even thirty years, twice the _grande mortalis aevi spatium_, it may misuse its authority with impunity, may practically invalidate a law voted by all the other powers, or a policy unanimously accepted by public opinion. It may nullify a regular diplomatic treaty[87] ... by refusing to enforce it by judicial sanction, or may lay hands on matters belonging to the sovereignty of the states and federalize them without one's being able to make any effective opposition, for this Court itself determines its own jurisdiction as against the state tribunals. It is one of Blackstone's maxims that in every const.i.tution a power exists which controls without being controlled, and whose decisions are supreme. This power is represented in the United States by a small oligarchy of nine irremovable judges. I do not know of any more striking political paradox than this supremacy of a non-elected power in a democracy reputed to be of the extreme type. It is a power which is only renewed from generation to generation in the midst of a peculiarly unstable and constantly changing state of things--a power which in strictness could, by virtue of an authority now out of date, perpetuate the prejudices of a past age, and actually defy the changed spirit of the nation even in political matters."[88]

It is a fundamental principle of free government that all legislative power should be under the direct control of the people. To make this control effective all laws must be enacted by the people themselves, or they must at least have what practically amounts to the power of appointing and removing their representatives. Democracy implies not merely the right of the people to defeat such laws as they do not want, but the power to compel such legislation as they need. The former power they possess in any country in which they control one coordinate branch of the legislature, even though the government be a monarchy or aristocracy. This negative power of defeating adverse legislation is merely the first step in the evolution of free government, and is possessed by the people in all countries which have made much const.i.tutional progress. There is a vast difference, however, between a system under which the people const.i.tute a mere check upon the government and one which gives them an active control over legislation.

It is the difference between a limited monarchy or aristocracy on the one hand and a government by the people themselves on the other.[89]

If this test be applied to the government of the United States we see that it lacks the essential feature of a democracy, inasmuch as laws can not be enacted without the consent of a body over which the people have practically no control. In one respect at least the American system is even less democratic than was the English government of the eighteenth century. The House of Commons was a coordinate branch of the legislature and as such had a recognized right to interpret the Const.i.tution. No political program, no theory of state functions, could receive legislative sanction without its approval. The House of Commons could enforce its interpretation of the Const.i.tution negatively since it had an absolute veto on all legislation. On the other hand its own views and policies could become law only in so far as they were acquiesced in by the other branches of the law-making authority. Under this system the accepted interpretation of the Const.i.tution was a compromise, one to which each branch of the legislature a.s.sented. Each of these coordinate branches of the government was equally the guardian and protector of the Const.i.tution, since it had the right to interpret, and the power to enforce its interpretation, of the legislative authority of the other branches by an absolute veto on their interpretation of their own powers.

This authority to act as final interpreter of the Const.i.tution which under the English system was distributed among King, Lords, and Commons, was under the American scheme of government taken out of the hands of Congress and vested in the judiciary alone. There are certain matters of minor importance, however, concerning which the interpretation placed upon the Const.i.tution by other branches of the government is final. But in interpreting the Const.i.tution for the purpose of legislating, the final authority is in the hands of the Federal Supreme Court. It is the exclusive possession of this most important prerogative of a sovereign legislative body which makes our Supreme Court the most august and powerful tribunal in the world. Through the sole right to exercise this power our Federal judiciary has become in reality the controlling branch of our government. For while it has an absolute veto on the acts of Congress, its own exercise of the highest of all legislative authority--that of interpreting the Const.i.tution and the laws of the land--is unlimited and uncontrolled. It is not surprising, then, that the Const.i.tution as it exists to-day is largely the work of the Supreme Court. It has been molded and developed by, and largely owes its spirit and character to the interpretation which that body has placed upon it.

Our Supreme Court thus has what virtually amounts to the power to enact as well as the power to annul. Congress can legislate only with the consent of the Federal judiciary; but the latter, through its control over the interpretation of the Const.i.tution may in effect legislate without the consent of the other branches of the government, and even in opposition to them. Under the guise of an independent judiciary we have in reality an independent legislature, or rather an independent legislative and judicial body combined. This union of sovereign legislative authority and ordinary judicial functions in the same independent body is a significant and dangerous innovation in government. It has not only deprived the people of the power to make the interpretation of the Const.i.tution and the trend of legislation conform to the public sentiment of the times; it has even taken from them all effectual power to prevent changes which they do not want, but which the judiciary in the exercise of its exclusive right to act as the guardian and interpreter of the Const.i.tution may see fit to make. Under our system, then, the people do not have even the negative power of absolute veto which they possess wherever they control a coordinate branch of the legislature.

In so far as the exercise of legislative power is controlled by the Supreme Court our government is essentially aristocratic in character.

It represents the aristocratic principle, however, in its least obtrusive form. But while avoiding the appearance, it provides the substance of aristocratic control.

It is easy to see in the exaltation of the Federal judiciary a survival of the old mediaeval doctrine that the king can do no wrong. In fact, much the same att.i.tude of mind which made monarchy possible may be seen in this country in our att.i.tude toward the Supreme Court. As long as the people reverenced the king his irresponsible power rested on a secure foundation. To destroy the popular belief in his superior wisdom and virtue was to destroy the basis of his authority. Hence all criticism of the king or his policy was regarded as an attack on the system itself and treated accordingly as a serious political crime.

The old view was well expressed by James I of England in a speech made in the Star Chamber on June 20, 1601, in which he said:

"That which concerns the mystery of the King's power is not lawful to be disputed; for that is to wade into the weakness of princes, and to take away the mystical reverence that belongs unto them that sit on the throne of G.o.d."[90]

We see this same fact ill.u.s.trated also in the history of the church, for absolutism was not confined in the Middle Ages to the state alone. As the King was the recognized guardian of the established political order and its final interpreter, so the ecclesiastical hierarchy claimed the right to guard the faith and expound the creed of the people. Criticism and dissent, political and religious, were rigorously repressed. The people were required to accept the political and religious system imposed on them from above. Implicit faith in the superior wisdom of their temporal and spiritual rulers was made the greatest of all virtues. But with the growth of an intelligent skepticism throughout the western world, the power of king and priest has been largely overthrown.

Yet even in this country something akin to the old system of political control still survives in the ascendency of our Federal judiciary. The exclusive right claimed by this branch of the government to guard and interpret the Const.i.tution is the same prerogative originally claimed by the king. The judiciary, too, is the branch of our government farthest removed from the influence of public opinion and consequently the one in which the monarchical principle most largely survives.

The courts not only claim to be the final arbiters of all const.i.tutional questions, but have gone much farther than this and a.s.serted their right to annul legislative acts not in conflict with any const.i.tutional provision. Story says: "Whether, indeed, independently of the Const.i.tution of the United States, the nature of republican and free government does not necessarily impose some restraints upon the legislative power has been much discussed. It seems to be the general opinion, fortified by a strong current of judicial opinion, that, since the American Revolution, no state government can be presumed to possess the transcendental sovereignty to take away vested rights of property."[91]

The judiciary has thus claimed not only the power to act as the final interpreter of the Const.i.tution, but also the right, independently of the Const.i.tution, to interpret the political system under which we live, and make all legislative acts conform to its interpretation of that system. According to this doctrine the courts are the final judges of what const.i.tutes republican government and need not base their power to annul a legislative act on anything contained in the Const.i.tution itself. If we accept this view of the matter, legislation must conform not only to the Const.i.tution as interpreted by the judiciary, but to the political and ethical views of the latter as well. The President and Congress derive their authority from the Const.i.tution, but the judiciary claims, as we have seen, a control over legislation not conferred by the Const.i.tution itself. Yet, while laying claim to powers that would make it supreme, the judicial branch of our Federal government has, as a rule, been careful to avoid any open collision, or struggle for supremacy, with the other branches of the government. It has retained the sympathy and approval of the conservative cla.s.ses by carefully guarding the rights of property and, by declining to interfere with the political discretion of Congress or the President, it has largely escaped the hostile criticism which any open and avowed attempt to thwart the plans of the dominant party would surely evoke. But in thus limiting its own authority, the Supreme Court has attempted to make a distinction between judicial and political powers which does not appear to have any very substantial basis. The essential marks of a judicial power, Judge Cooley tells us, are "that it can be exercised only in a litigated case; that its direct force is spent in determining the rights of the parties to that case; and that unless and until a case has arisen for judicial determination, it can not be invoked at all."[92]

"The power given to the Supreme Court," he says, "to construe the Const.i.tution, to enforce its provisions, to preserve its limitations, and guard its prohibitions, is not _political_ power, but is judicial power alone because it is power exercisable by that court only in the discharge of the judicial function of hearing and deciding causes in their nature cognizable by courts of law and equity."[93]

In the first place it is to be observed that judicial power as thus defined is practically co-extensive with that of the legislature, since scarcely an exercise of legislative authority could be mentioned which would not affect the rights of persons or of property and which could not, therefore, be made the subject of a judicial controversy.

In the second place, it must be remembered that the Federal judiciary in a.s.suming the exclusive right to interpret the Const.i.tution has taken into its keeping a power which, as we have seen, was not judicial in character when the Const.i.tution was adopted, and is not even now considered judicial in any other important country. In declaring a legislative act null and void it is exercising a power which every sovereign law-making body possesses, the power to defeat any proposed legislation by withholding its a.s.sent. The mere fact that our Supreme Judges and our legal writers generally have with practical unanimity called it a judicial power does not make it such. That it is in reality a legislative and not a judicial power is amply confirmed by the uniform and time-honored practice of all other nations, even including England, whose inst.i.tutions until a century and a quarter ago were our own.

There is, however, no difficulty in understanding why those who framed the Const.i.tution and controlled its interpretation exhausted the a.r.s.enal of logic in trying to prove that it was a judicial power. This was merely a part of their plan to make the Supreme Court practically a branch of the Federal legislature and thereby secure an effective check on public opinion. As the power could not be expressly given without disclosing too clearly the purpose of the Convention, it was necessary that it should be implied. And it could be held to be implied only by showing that it was a natural, usual and, under the circ.u.mstances, proper power for the judiciary to exercise. Unless it could be established, then, that it was essentially a judicial function and not a political or legislative power, its a.s.sumption by the Supreme Court could not be defended on any const.i.tutional grounds. This explains the persistent and untiring efforts to convince the American people that the power to set aside an act of Congress is purely judicial--efforts which, though supported by the weight of American authority, are far from convincing.

The Supreme Court has, it is true, time and again expressly disclaimed all right to exercise legislative or political power; yet under the pretext that the authority to annul legislation is purely judicial, it has made use of a power that necessarily involves the exercise of political discretion. The statement, then, that it is the settled policy of this body not to interfere with the political powers of the other departments can not be taken literally, since under the accepted interpretation of the Const.i.tution it has the power to, and as a matter of fact does interfere, whenever it declares an act of Congress null and void.

It would be a mistake, then, to suppose that the Federal judiciary has suffered any loss of influence through its voluntary relinquishment of the veto power in the case of political questions. This self-imposed restriction on its authority merely affords it a convenient means of placing beyond its jurisdiction measures which it may neither wish to approve nor condemn. And since the court must decide what are and what are not political questions, it may enlarge or narrow the scope and meaning of the word _political_ to suit its purposes. As a matter of fact, then, the power which it appears to have voluntarily surrendered, it still largely retains.

Upon the whole, the Supreme Court has been remarkably fortunate in escaping hostile criticism. Very rarely have its decisions and policy been attacked by any organized party. In the platform of the Republican party of 1860 the strong pro-slavery att.i.tude of the court was, it is true, severely denounced. But from that time until 1896 no party dared to raise its voice in criticism of the Federal judiciary. Both the Democratic and the Populist platforms of the latter date, however, condemned the Income Tax decision and government by injunction. The Democratic platform also hinted at the possible reorganization of the Supreme Court--the means employed by the Republican party to secure a reversal of the Legal Tender decision of 1869.

This comparative freedom from criticism which the Supreme Court has enjoyed until recent years does not indicate that its decisions have always been such as to command the respect and approval of all cla.s.ses.

It has from the beginning had the full confidence of the wealthy and conservative, who have seen in it the means of protecting vested interests against the a.s.saults of democracy. That the Supreme Court has largely justified their expectations is shown by the character of its decisions.

During the first one hundred years of its history two hundred and one cases were decided in which an act of Congress, a provision of a state const.i.tution or a state statute, was held to be repugnant to the Const.i.tution or the laws of the United States, in whole or in part.

Twenty of these involved the const.i.tutionality of an act of Congress.

One hundred and eighty-one related to the Const.i.tution or the statute of a state. In fifty-seven instances the law in question was annulled by the Supreme Court on the ground that it impaired the obligation of contracts. In many other cases the judicial veto was interposed to prevent what the court considered an unconst.i.tutional exercise of the power to regulate or tax the business or property of corporations.[94]

These decisions have been almost uniformly advantageous to the capital-owning cla.s.s in preserving property rights and corporate privileges which the unhindered progress of democracy would have abridged or abolished. But we need not confine our attention to these comparatively few instances in which laws have actually been declared null and void. There is a much more numerous and more important cla.s.s of cases in which the Supreme Court, while not claiming to exercise this power, has virtually annulled laws by giving them an interpretation which has defeated the purpose for which they were enacted. The decisions affecting the powers of the Inter-State Commerce Commission may be cited as an ill.u.s.tration. This body, created by Congress for the purpose of regulating the railway traffic of the country, has, as Mr.

Justice Harlan observes,[95] "been shorn by judicial interpretation, of authority to do anything of an effective character." Both the general and the state governments in their efforts to grapple with this problem have encountered the restraining arm of the Federal judiciary which has enlarged its jurisdiction until nearly every important case involving corporate interests may be brought before the Federal court.

It is not, however, in the laws which have been annulled or modified by interpretation that we find the chief protection afforded to capital, but rather in the laws which have not been enacted. The mere existence of this power and the certainty that it would be used in defence of the existing social order has well-nigh prevented all attacks on vested rights by making their failure a foregone conclusion.

It is but natural that the wealthy and influential cla.s.ses who have been the chief beneficiaries of this system should have used every means at their command to exalt the Supreme Court and thereby secure general acquiescence in its a.s.sumption and exercise of legislative authority. To the influence of these cla.s.ses in our political, business, and social life must be attributed in large measure that widespread and profound respect for the judicial branch of our government which has thus far almost completely shielded it from public criticism.

There are many indications, however, that popular faith in the infallibility of the Supreme Court has been much shaken in recent years.

This is not surprising when we consider the wavering policy of that body in some of the important cases that have come before it. Take, for example, the _Legal Tender_ decisions. The court at first declared the legal tender acts unconst.i.tutional by a majority of five to three. Then one of the justices who voted with the majority having resigned and Congress having created an additional judgeship, Justices Strong and Bradley were appointed to fill these vacancies. The former, as a member of the Supreme Bench of the State of Pennsylvania, had rendered a decision upholding the const.i.tutionality of these acts, and the latter was said to hold the same opinion. At any rate the first decision was reversed by a majority of five to four. The point at issue in these two decisions was whether Congress had authority to enact measures of this kind in time of war. The matter coming up again, the Supreme Court decided, and this time by a majority of eight to one, that Congress had this power, not only during war, but in times of peace as well.[96]

Reference should also be made in this connection to the Income Tax decisions of 1895. The first of these was a tie, four to four, Justice Jackson being absent. Six weeks later the second decision was read declaring the Income Tax unconst.i.tutional by a vote of five to four, Justice Shiras, who had voted on the first hearing to uphold the Income Tax, now voting against it. This change in the att.i.tude of a single member of the court converted what would have been a majority for, into a majority against the measure, overruled a line of decisions in which the tax had been sustained and thereby effectually deprived Congress of the power to impose a Federal Income Tax until such time as the court may change its mind. Even more significant are the recent Insular cases in which the division of opinion and diversity of grounds for the conclusions reached are, to say the least, surprising.

One may well ask, after viewing these decisions, if const.i.tutional interpretation as practiced by the Supreme Court is really a science in the pursuit of which the individual temperament, personal views and political sympathies of the Justices do not influence the result. Have we gained enough under this system in the continuity and consistency of our legislative policy and its freedom from cla.s.s or political bias to compensate us for the loss of popular control? That these questions are likely to receive serious consideration in the near future we can scarcely doubt, when we reflect that the Supreme Court has, by the character of its own decisions, effectually exploded the doctrine of judicial infallibility, which const.i.tutes the only basis upon which its monopoly of const.i.tutional interpretation can be defended.

The evident lack of sympathy with proposed reforms which has, upon the whole, characterized the proceedings of the Federal courts is rather strikingly ill.u.s.trated in the address of Judge Taft on "Recent Criticisms of the Federal Judiciary." He makes use of the following language: "While socialism, as such, has not obtained much of a foothold in this country, ... schemes which are necessarily socialistic in their nature are accepted planks in the platform of a large political party.

The underlying principle of such schemes is that it is the duty of the government to equalize the inequalities which the rights of free contract and private property have brought about, and by enormous outlay derived as far as possible from the rich to afford occupation and sustenance to the poor. However disguised such plans of social and governmental reform are, they find their support in the willingness of their advocates to transfer without any compensation from one who has acquired a large part of his acquisition to those who have been less prudent, energetic, and fortunate. This, of course, involves confiscation and the destruction of the principle of private property."[97] This emphatic condemnation of proposed reforms which had the full sympathy and approval of many thoughtful and conscientious people furnishes the show of justification at least for the very criticisms which it was intended to silence.

With the progress of democracy it must become more and more evident that a system which places this far-reaching power in the hands of a body not amenable to popular control, is a constant menace to liberty. It may not only be made to serve the purpose of defeating reform, but may even accomplish the overthrow of popular rights which the Const.i.tution expressly guarantees. In proof of this statement we need but refer to the recent history of our Federal judiciary. The Sixth Amendment to the Const.i.tution guarantees the right of trial by jury in all criminal prosecutions; but it is a matter of common knowledge that this time-honored safeguard against the tyranny and oppression of ruling cla.s.ses has been overthrown by the Federal courts. With the ascendency of corporate wealth and influence, government by injunction has become an important feature of our system. The use made of the injunction in recent years in the conflicts between labor and capital has placed a large and important cla.s.s of crimes beyond the pale of this const.i.tutional provision. Moreover, this particular cla.s.s of crimes is the one where denial of the right of trial by jury is most likely to result in oppression. Under this mode of procedure the court has virtually a.s.sumed the power to enact criminal legislation, and may punish as crimes acts which neither law nor public opinion condemns. It ensures conviction in many cases where the const.i.tutional right of trial by jury would mean acquittal. It places a powerful weapon in the hands of organized wealth which it is not slow to use.[98]

This so-called _government by injunction_ is merely an outgrowth of the arbitrary power of judges to inflict punishment in cases of contempt. In this respect, as well as in the power to veto legislation, the authority of our courts may be regarded as a survival from monarchy. The right of judges to punish in a summary manner those whom they may hold to be in contempt of their authority has been defended by legal writers generally on the ground that it is the only way in which the necessary respect for judicial authority can be maintained. It is difficult, however, to see why this argument would not apply with equal force to the executive and legislative branches of the government; for there must be some means of enforcing obedience to every lawful authority, legislative, executive, or judicial. The progress toward responsible government has long since deprived the executive of the power to inflict arbitrary punishment, and the legislature, though still retaining in a limited degree the power to imprison for contempt of its authority, seldom uses and almost never abuses it. The question is not whether contempt of authority should be punished, but whether the officer whose authority has been disregarded should also act as judge and jury, should ascertain the guilt and fix the punishment of those whom he as complaining witness has accused of contempt of his authority. This procedure is utterly at variance with the idea of political responsibility, and survives only because the judicial branch of our government has thus far effectually resisted the inroads of democracy. That the exercise of this arbitrary and irresponsible power is necessary in a democratic community, to ensure proper respect for the courts, seems highly improbable. In fact, no course could be suggested which would be more likely in the end to bring them into disrepute.[99]

It is interesting to observe that while the Supreme Court of the United States has not hesitated to veto an act of Congress, "no treaty, or legislation based on, or enacted to carry out, any treaty stipulations has ever been declared void or unconst.i.tutional by any court of competent jurisdiction; notwithstanding the fact that in many cases the matters affected, both as to the treaty and the legislation, are apparently beyond the domain of Congressional legislation, and in some instances of Federal jurisdiction."[100]

Why has the Federal Supreme Court freely exercised the power to annul acts of Congress and at the same time refrained from exercising a like control over treaties? The Const.i.tution makes no distinction between laws and treaties in this respect. It provides that "the judicial power shall extend to all cases, in law and equity, arising under this Const.i.tution, the laws of the United States, and the treaties made, or which shall be made, under their authority."[101] If this provision is to be interpreted as conferring on the Federal courts the power to declare acts of Congress null and void, it also confers the same power in relation to treaties. Moreover, the Supreme Court has claimed, and has been conceded, the right to act as the guardian of the Const.i.tution.

The authority thus a.s.sumed by the Federal judiciary can be justified, if at all, only on the theory that the Const.i.tution limits all governmental powers, and that it is the duty of the Supreme Court to enforce the limitations thus imposed by declaring null and void any unconst.i.tutional exercise of governmental authority.

Not only in the Const.i.tution itself was no distinction made between laws and treaties in relation to the power of the judiciary, but the same is true of the Judiciary Act of September 24, 1789, which provided that where the highest court in a state in which a decision in the suit could be had decides against the validity of "a treaty or statute of, or an authority exercised under, the United States," such judgment or decree "may be re-examined, and reversed or affirmed in the Supreme Court [of the United States] on a writ of error." The right of the Federal Supreme Court to declare both laws and treaties null and void was thus clearly and unequivocally recognized in this act. The object here, however, was not to establish judicial control over treaties, but to deprive the state courts of all authority over them.