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64th Congress \
2d Session
SENATE
f
D ocum ent
No. 737
Withdrawing Power from Federal Courts to
Declare Acts of Congress Void
AN ADDRESS
DELIVERED AT THE AUDITORIUM IN OKLAHOMA CITY,
OKLA., JANUARY 27, 1917
By
H on.
ROBERT L. OWEN
U n it e d St a t e s S e n a t o r
PRESENTED BY MR. SHEPPARD
F e b r u a r y 27, 1917.— Ordered to be printed
WASHINGTON
GOVERNMENT PRINTING OFPICE
1917
SENATE RESOLUTION NO. 383.
[REPORTED BY MR. CHILTON.]
I n t h e S e n a t e o f t h e U n it e d S t a t e s ,
March 2, 1917.
Resolved, That the manuscript submitted by the Senator from
Texas (Mr. Sheppard), on February twenty-seventh, nineteen hun
dred and seventeen, entitled “ Withdrawing from the Federal Courts
the Power to Declare Acts of Congress V oid,” an address by Senator
Robert L . Owen, be printed as a Senate document.
A ttest:
J a m e s M. B a k e r ,
Secretary.
2
WITHDRAWING POWER FROM FEDERAL COURTS TO DECLARE
ACTS OF CONGRESS VOID.
By Senator R obert L. O w e n .
Oklahoma City, Okla., January 27, 1917.
L a d ie s a n d G e n t l e m e n , F e l l o w C it iz e n s o f O k l a h o m a :
I come to speak to you on a m atter which I regard as of very great
gravity. I t is the question of withdrawing from the Federal courts
a power which they have long been permitted by Congress to exercise,
to declare acts of Congress void as unconstitutional.
th is country has reached a point where public opinion has slowly
come to the conclusion that the refuge of monopoly is to be found in
the I ederal courts. This country has perceived m any acts intended
to protect human life, intended to safeguard the mass of men, nullified
by the Federal judiciary.
Every monopolist and his attorney, actual, hopeful, or expectant
[laughter], will swear by the Federal courts and the Constitution as
by the Arc of the Covenant and rush to its defense like the Sons of
L evy, especially when the Constitution is not being assailed but being
properly interpreted.
I have demanded that Congress should exercise its plain, conceded,
constitutional right and withdraw from the Federal courts the power
to declare acts of Congress unconstitutional or void on grounds of
public policy. [Applause.] I have made this demand because
Congress can not otherwise protect the common people against
predatory monopoly. . [Applause.]
Congress can not otherwise furnish the American people the means
y will°k
adjust the great questions arising between capital and
labor, great questions affecting the business, political, moral, and
physical
life of the Nation.
*
have, theiefore, desired, as one of the public servants of Oklahoma, to be permitted to advise the people of this State to instruct
their Kepresentatives in Congress and in the Oklahoma Legislature
to support m y demand for the control of the Federal judiciary, if the
people of Oklahoma wish to abate the high cost of living and to enjo y fully their inalienable and indefeasible rights of self-government.
One of the most skillful special pleaders in Oklahoma, a gentle
man very attractive socially, of considerable learning, and of great
oratorical power, has seen fit to throw himself at the head of the
Sons of L evy in defending the A rk of the Covenant, which being inter
preted means to defend the alleged right of nine learned lawyers, ap
pointed for life, bv previous administrations, and out of sym pathy with
the succeeding administration or with national public opinion but sit
ting on the I ederal bench to nullify and abort the legislative power
3
4
WITHDRAWING POWER TO DECLARE ACTS OF CONGRESS VOID.
HBH
of a hundred million people. In a burst of beautiful eloquence, be
quotes the H o ly Scriptures as the clarion call, and in the words of
the Prophet Joshua, proclaims: “ A s for me and m y bouse, we will
serve the L ord.”
[Laughter and applause.]
In answer to this ringing challenge, I answer: “ I am willing to
serve the people, the common people, the commonest kind of people,
and let them judge who the Lord is the Sons of L evy serve.”
In order that you m ay clearly understand what it is I have pro
posed, and why, I present to you the following resolution:
Whereas the Constitution of the United States gives no authority to any judicial
officer to declare unconstitutional an act which has been declared constitutional
by a majority of the Members of the United States Senate and of the House of Rep
resentatives and by the President of the United States, who, on their several oaths,
have declared the opinion in the passage of such act that it is constitutional; and
Whereas in the Constitutional Convention, in which the Constitution of the United
States was framed, the motion was three times made to give to the Supreme Court,
in some mild form, the right to express an opinion upon the constitutionality of
acts of Congress, and was three times overwhelmingly rejected; and
Whereas such assumption of power by the Federal courts interferes with the reason
able excercise of the sovereignty of the people of the United States and diverts it
from the hands of the representatives of the people in Congress assembled to a tri
bunal appointed for life and subject to no review and to no control by the peoplo
of the United States, and is therefore against a wise public policy; and
Whereas the declaration by any Federal court that the acts of Congress are uncon
stitutional constitutes an usurpation of power: Therefore be it
Resolved by the Senate and House o f Representatives o f the United States oj America
in Congress assembled, That from and after the passage of this act Federal judges
are forbidden to declare any act of Congress unconstitutional.
No appeal shall be permitted in any case in which the constitutionality of an act
of Congress is challenged, the passage by Congress of any act being deemed conclu
sive presumption of the constitutionality of such act.
.
Any Federal judge who declares any act passed by the Congress of the united
States to be unconstitutional is hereby declared to be guilty of violating the consti
tutional requirement of “ good behavior ” upon which liis tenure of office rests and
shall be held by such decision ipso facto to have vacated his office.
S ec . 2. That the President of the United States is hereby authorized to nominate
a successor to fill the position vacated by such judicial officer.
(After resolution there was much applause.)
This resolution I intend to amend so that if any statutory Federal
court thinks an act repugnant to the Constitution he shall certify
the act to Congress and suspend final action on the case until further
instructed by Congress on the point the court may raise and leave the
appeal from State Courts as it now stands. In this way a safeguard
wifi be provided against a possible inadvertence in any act of Congress.
The meaning of this resolution is that when inferior Federal judges,
such as district, circuit, and other statutory judges, interpret an act
which Congress has passed, they shall deem the passage of the act
as establishing a conclusive presumption of the constitutionality of
such act under penalty of vacating their office.
The resolution means that the Supreme Court will have no oppor
tunity to pass on the constitutionality of an act of Congress under
its appellate jurisdiction, which is the onlv jurisdiction in which such
questions can arise, except from State Courts and under which is
no probable danger to the public interest. Congress has the consti
tutional power to withhold from the appellate power of the Su
preme Court the right to pass on the constitutionality of the acts
of Congress. [Applause.]
WITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS) VOID.
5
The McCardle case, 1868: The Supreme Court decided in that case
by unanimous opinion that Congress had that power. The Congress
has that power, and the time has come for Congress to exercise that
power.
The Supreme Court itself has m any times sustained this interpre
tation, as in W iscart v. Dauchey, 3 Dali., 321 (1 7 96); Duroussean v.
U . S., 6 Cranch., 307 (1810); U . S. v. Gordon, 7 Cranch., 287 (1813);
Daniels v. C., R . I. & P. R . R ., 3 W a ll., 250 (1865); In re McCardle,
7 W a ll., 510 (1868); N at. E x . Bk. v. Peters, 144 U . S., 570 (1891);
Col. C. C. M. Co. v. Turck, 150 U . S ., 138 (1893).
CONGRESS AND THE SUPREME COURT NOT COEQUAL.
The law schools have been teaching thousands of boys to be law
yers, have been teaching them that the Constitution established three
coordinate, coequal branches of the Government. This is a funda
mental error, because there were established three coordinate but
not coequal branches of Government. The sovereign law-making
power of the people, as far as they delegated such powers, were
vested expressly in Congress, using these words:
To make all laws which shall be necessary and proper for carrying into execution
the foregoing powers and all other powers vested by this Constitution in the Gov
ernment of the United States or in any department or officer thereof.
Congress, b y statute, established a Supreme Court, the executive
departments, and fixed their powers in accordance with the Consti
tution and in accordance with the power vested in Congress as the
law-making power.
Congress fixed the number of judges on the Supreme Court. It
can add to that number now or it can diminish the number b y an
act of Congress.
Congress fixed the compensation of the Supreme Court.
Congress, through the Senate branch, confirms a justice of the
Supreme Court before he can take his seat.
Congress can impeach the Supreme Court and remove that court
from office. [Applause.]
Congress, under the Constitution, was expressly charged with fixing
the appellate jurisdiction of the Supreme Court— and that’s all the
jurisdiction they have worth mentioning.
The Supreme Court has only original jurisdiction in all cases affect
ing ambassadors, other public ministers, and consuls, and those in
which a State shall be^ a party. Only about one such case arises in
10 years. All other jurisdiction is appellate. One case in about
n,000 is under original jurisdiction, about 4,999 cases under appellate
jurisdiction.
Congress has the duty imposed upon it under the Constitution to
fix that appellate jurisdiction and make such exceptions and such regu
lations as Congress sees fit.
THE POWERS OF CONGRESS.
I am talking now of the power of Congress under the Constitution
without changing the Constitution, without modifying its meaning
without putting a strained interpretation upon it. I am talking now
6
W ITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS VOID.
of the power. I shall talk presently of the duty of exercising that
power and give you the reasons why I think the time has come to
exercise it.
.
The Constitution, Article I, section 1, declares the following powers
vested in Congress. I wish you would listen to these powers of Con
gress :
All legislative powers herein granted shall be vested in the Congress of the L nited
States, which shall consist of a Senate and House of Representatives.
It gave the House of Representatives and the Senate the power
to impeach any officer of the United States, including judges. It
gave the Senate the power to sit as a high court of impeachment over
judges. I t gave the Senate the right to advise with the President of
the&United States and confirm the appointment of all officers of the
United States, including judges.
It gave each House the authority to determine its own member
ship and its own proceedings.
,
It exempted the Members of the Senate and the House from arrest
by judges except for treason, felony, breach of the peace.
It provided that they should not be questioned in any place
about any speech or debate in either House, not even b y judges.
It gave Congress the power to lay and collect taxes, duties, im
posts, and excises; to pay the debts and pay for the common defense
and general welfare of the United States.
To borrow m oney. It has borrowed billions of dollars.
To regulate commerce. It has regulated hundreds of billions of
commerce.
.
.
To establish a uniform rule of naturalization and uniform laws on
the subject of bankruptcies.
.
To coin m oney, to regulate the value thereof and of foreign com,
and fix the standard of weights and measures.
To punish counterfeiters.
To establish post offices and post roads.
To grant patents and copyrights. I t has granted over a million
patents.
To constitute tribunals inferior to the Supreme Court.
To define and punish piracies and felonies committed on the high
seas and offenses against the law of nations.
To declare war, grant letters of mark and reprisal, and to make
rules concerning captures on land and water.
To raise and support armies.
To provide and maintain a navy.
To make rules for the government and regulation of the land
and naval forces.
.
. ,
To provide for calling forth the militia to execute the laws of the
Union, suppress insurrection, and repel invasions.
To provide for organizing and disciplining the militia, and for
governing such part of them as m ay be employed in the sei v ice of
the United States.
To exercise authority over all places purchased b v Congress, carry
ing into execution the foregoing powers and all other powers vested
b y the Constitution in the Government of the United States or m
any department or officer thereof, including the judicial department.
The Constitution expressly provides that Congress shall not do
certain things, for instance:
WITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS VOID.
7
It forbade interference with the slave trade up to 1808.
It forbade the suspension of the writ of habeas corpus except
where the public safety required it.
I t forbade a bill of attainder or ex post facto law.
I t forbade a capitation or other direct tax on the States unless in
proportion to the census.
I t forbade an export duty.
I t forbade a preference to be given to the port of one State over
another.
It forbade expenditure of money except b y lawful appropriations.
I t forbade titles of nobility.
And the people refused to ratify that Constitution until the Bill
of Rights in the 10 amendments were agreed to be added to that
Constitution and made a part of it. In that Bill of Rights were
reserved the various rights of the people, which Congress was charged
with the duty of defending, as follows:
The first, free religion. The gentlemen who wrote that Constitu
tion forgot to put that in. [Applause.]
Free speech.
A free press. The gentlemen who wrote that Constitution forgot
to put that in. Thomas Jefferson demanded that they go in.
Free right of assembly.
Free right of petition for redress of grievances. The gentlemen
who wrote that Constitution forgot to put those things in.
The right of the State to have troops.
The right of the people to keep and bear arms.
The right of the people to be free from the quartering of soldiers
upon them.
Freedom from unlawful searches and seizures.
Ireedom from arrest for crime except on indictment.
The right of life, liberty, and property, not to be interfered with
except b y due process of law.
. ^ ie right against takipg private property for public use, without
just compensation.
Ih e right for speedy public trial by an impartial jury. The gen
tlemen who wrote the Constitution forgot to put all those things in.
And when they came home and saw Thomas Jefferson they heard
rom him, and others like him, and they heard from the people of the
countiy, too.
1 hey could not have liad the Constitution ratified
except for that Bill of Rights, put in this Constitution.
ih e right to be informed of the nature of the accusation against a
citizen.
65
Ih e right to be confronted with witnesses against a citizen
The right of compulsory process for obtaining witnesses.
Ih e right to have counsel in the defense of the rights of a citizen.
The right to a trial by jury.
The right against excessive bail, excessive fines, or cruel or unusual
punishment.
The gentlemen who wrote this Constitution forgot to put those
things in, but this Bill of Rights safeguarded the people, ahd it was
on the demand of the people and of men like Thomas
Thoma Jefferson
who believed in the people and stood for them,
jL1- ’ TV- 11 *
Rights went into this Constitution.
[Applause.]
8
W ITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS VOID.
THE PEOPLE ALONE CAN CONTROL CONGRESS.
I refer to that because it is a part of this argument.
M y friend, Judge Charles B . Stuart, quotes with great zeal Alex
ander Ham ilton, Gerry, and others, who didn’ t believe in democracy,
who regarded a all political evils as due to the turbulence of the
democracy.”
,
.
Alexander Ham ilton believed in a President appointed for life,
with the right to appoint governors of States for life, consisting of
those who were representing the aristocracy of the country, in order
that the people might be held in subjection and governed accord
ing to law. [Laughter and applause.]
THE PEOPLE CONTROL CONGRESS.
These instructions which I have read to you were laid upon the
Congress b y the people, and the people retained in their own hands
all powers not expressly granted to Congress. Congress was charged
with the lawmaking power of the people, subject to the people
themselves alone.
And the people took every pains in this Constitution to require
the entire House of Representatives and one-third of the Senate,
every two years, to come back before the people and give an account
of their stewardship, and receive the approval of the people before
they continued the duty of making laws for the people. In that
way the people kept in their own hands the sovereignty which was
declared vested in them by the Bill of Rights in every one of the 48
States in this Union. Read these constitutions.
On the 31st of July, 1911, I put in the Congressional Record an
extract from the constitution of each of the 48 States on this very point,
because at that time, five years or mare ago now, when the Standard Oil
decision was rendered I made a demand for the control of the Federal
judiciary, and I put in the record then the power which the people of this
country had retained over the State judiciary. The people kept control
of Congress, and when Congress passes a law in pursuance of the
Constitution, the Congress itself declares that law to be the Supreme
law of the land and does not say that the law m ay be declared void
by the judges. [Much applause.]
Unhappily, Congress not having in express terms forbidden this
unwise practice Congress m ay be fairly held to have acquiesced in it.
The Constitution requires every Senator and every Representative
in Congress to take a solemn oath to support faithfully and truly the
Constitution of the United States.
W hen, on their oaths, the members of the House of Representatives
of the United States, and the United States Senate, with the approval
of the Vice President of the United States, who presides over the
Senate of the United States, and with the approval of the President
of the United States, passes an A ct, a conclusive presumption arises
that the act is constitutional, and this presumption can only be
overthrow?! b y the disapproval of the people of the United States,
wrho will return a new Congress and correct any unconstitutional or
impolitic acts of an expiring Congress. [Applause.]
W ITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS VOID.
9
THE SUPREMACY OF THE LEGISLATIVE POWERS OF OTHER NATIONS.
N o civilized nation permits the judges on the bench to declare un
constitutional or void the acts of the Parliament. Great Britain, in
1700, February 6, declared that judges should hold their office “ while
they behaved themselves well,” subject alone to removal by resolu
tion of Parliament. That is what I proposed in 1911 for the United
States. I thought the time had then come for that rule in the United
States.
France does not permit the laws of Parliament to be set aside bv the
judges.
'
Italy, in its written constitutional law, provides that the judges
shall not set aside an act of the Parliament.
It is the written law of Austria.
It is the written law of Germany.
It is the written law of Belgium.
It is the written law of Denmark.
I t is the written law of Australia.
I t is the written law of New Zealand.
I speak of these things because the civilized world which has con
sidered government by the people, having all agreed upon this doc
trine, there m ust be sound reason for it.
I t is not an accident.
I t is written out of the blood and tears of centuries. [Applause.]
It is true that in 1788 several lawyers of distinction (and privilege)
contended that the contemplated Supreme Court of the United
States should have the right to declare acts of Congress unconstitu
tional. Judge Stuart quotes several of them.
H e quotes Daniel
W ebster; he quotes Oliver Ellsworth; he quotes John Marshall and
Alexander Ham ilton. A ll I care to say now is that the selfish
opinions of such lawyers of aristocracy w'ere no more convincing
then than they are now. [Applause and laughter.]
Oliver Ellsworth, and Daniel W ebster, and Alexander Hamilton
and John Marshall did make that argument to the great property
holders of their States with a view to getting their support for the
Constitution, because the Constitution needed friends at that time,
but John Marshall, who spoke equally well on either side of the case,
defended the Constitution against the charge of Patrick Henrv that
it would establish a judicial despotism by the following remarks. I
Wrailn
t0 Asten to J°hn Marshall because he is the patron saint
of all the gentlemen who differ with me about this question. Here
is what John said. I will not call him by a more familiar name
[Laughter.]
Congress is empowered to make exceptions to the appellate jurisdiction as to law
and fact of the Supreme Court. These exceptions certainly go as far as the legislature
may think proper for the interest and liberty of the people (Elliott’s Debates, vol.
o, p. 560.)
The plain truth is, the people of the American Colonies who lived
under the English practice recognized as a fixed principle of govern
ment that the judiciary is subject to the legislative power of the
peopie
The English law that I referred to a moment ago was to
that effect, and that law was the law of the Colonies, which thev
perfectly well understood. It is true that Rhode Island did about
this time pass an act which its supreme court declared unconstitu-
warn
10
WITHDRAWING POWER TO DECLARE ACTS OF CONGRESS VOID.
tional. I t is also true that the legislature put the court out of office
for that reason.
.
It is also true that two or three other States had a similar expe
rience, and the court was rebuked b y the people for its conduct in
this matter.
The Legislature of New Hampshire removed its supreme court
four times on the ground of policy.
. .
On July 31, 1911, in Congress, and before the Bar Association of
Oklahoma on the 23d day of December, 1911 (vol. 5), I explained
the extraordinary pains the people of the United States have taken
to prevent the usurpation of their power by the judges.
Now, listen to this. Here is what the people at home thinkhere is what the .common people think; you will find the details in
Volum e 5:
THE PEOPLE CONTROL THE
STATE JUDICIARY.
Forty-eight States have two ways of removing judges b y impeach
ment, and either by a short tenure of office or by resolution of the
legislature. Thirty-two States have three ways of removing judges.
Thirty-two States m ay remove judges by resolution of the State
legislature.
Seven States have four ways of removing judges, viz,
impeachment, legislative recall, short tenure of office, and popular
recall
They started the popular recall in Oregon, first, because of the
oross aggression of the railroad interests and other private interests
of the State, which had corrupted practically their whole govern
ment in the interest of property against the people. The recall
was applied to all officials; no exception was made as to judges. The
judges of that State now would compare favorably with those of any
other State. And they did the same thing in California recently
for the same reason, Hiram Johnson making his campaign for gov
ernor and winning overwhelmingly, when the chief issue was the
recall of judges and on the slogan that “ the Southern Pacific has got
to go out of the governing business in California.”
D o not make
any mistake about this matter.
Forty-five States recall judges b y a short tenure of office and all the
States, the 48 States, have the right of impeachment. No one
ever hears any complaint of our State judiciary for the very reason
the judiciary is in sym pathy with the people and serve them acceptOklahoma, as we all know, has reason to be especially proud of
her supreme court. Its members are nominated and elected b y the
people and the justices of the supreme court are in sym pathy with
the people.
THE PEOPLE WISH THE FEDERAL JUDICIARY RESTRAINED.
The people are overwhelmingly opposed to the usurpation of
legislative power b y the Federal judiciary appointed for life.
Nobody knew better than John Marshall himself that the Supreme
Court had no right to declare an act of Congress void under the Con
stitution, for in the case of W are v. Hilton, John Marshall stated
WITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS VOID.
11
now listen to the patron saint of the opposition— this is John,
John Marshall whom I am quoting:—
The legislative authority of any country can only be restrained by its own municipal
constitution; 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
jurisdiction is expressly given by the Constitution.
The word “ m unicipal” is used in the broadest sense.
This is John Marshall. And nobody pretends that there is any
express provision in the Constitution of the United States conferring
any such authority.
The highest authority on English and American law has been Sir
, William Blackstone. H e is the one that all law clerks, law schools,
and law students swear b y. Listen to Sir W illiam. He says:
When the main object of a statute is unreasonable the judges are not at liberty to
reject it, for that were to set the judicial power above that of the legislature, which
would be subversive of all government. (Blackstone’s Commentaries, p. 85, sec. 3.)
I have to talk in the language of the lawyers, otherwise I would
not perhaps be understood b y them.
A V o i c e . Judge Stuart forgot to say that.
Senator O w e n . Perhaps he had not recently read Blackstone.
Thomas Jefferson had a view full of apprehension after John
Marshall came on the bench.
The Congress did not rebuke Marshall for the Marbury v. Madison
case, and Thomas Jefferson didn’ t see the way clearly how to protect
the country against that aggression, and this is what he said:
It has been my opinion that the germ of dissolution of our Federal Government is
in the constitution of the Federal judiciary, an irrepressible body working like gravity
by day and by night, gaining a little to-day and a little to-morrow and advancing
with a noseless step like a thief, over the field of jurisdiction, until all shall be usurped,
(federal Law Journal, vol. 66, p. 293.)
I beg you f ° observe that I quote the page whenever I make a refer
ence. Judge Stuart neglected to do that.
Evidently Jefferson did not observe the power of Congress to limit
the appellate jurisdiction of the court. If he had, he would not have
. ra. &t Ml. The country is in no danger on earth; the Con
stitution is all right, doesn’t have to be changed; it only has to be
exemplified and decently interpreted and made to accomplish the
ends tor which it was intended.
Andrew Jackson is another authority I want to call your attention
0 y ou remomber what he said of John Marshall in a famous
case? H e said this:
John Marshall has rendered his decision.
Now let us see him enforce it.
That is what Jackson said, but I want to quote you the language
of Jackson in the case of the Bank of United States. Jackson said
this:
It is maintained by the advocates of the bank that ite unconstitutionality, in all
its features, ought to be considered as settled by precedent and bv the decision of the
Supreme Court. To this conclusion I can not assent. * * * If the opinion of the
Supreme Court covered the whole ground of this act, it ought not to control the coor
dinate authorities of’ this Government. The Congress, the Executive, and the court
must each for itself be guided by its own opinions of the Constitution. Each public
officer who takes an oath to support the Constitution swears that he will sunnnrt it
“ he understands it and not as it is understood by others. It is as much the dutv nf
the House of Representatives, of the Senate, and of the President to decide upon the
12
WITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS VOID.
constitutionality of any bills or resolutions which may be presented to them for pas
sage or approval, as it is of the Supreme Court, when it may be brought before them
for judicial decision. The opinion of the judges has no more authority over Congress
than the opinion of Congress has over the judges; and on that point the President is
independent of both. The authority of the Supreme Court must not, therefore, be
permitted to control the Congress or the Executive when acting in their legislative
capacities, but to have only such influence as the force of their reasoning deserve.
(Senate Journal, July, 1832, p. 451.)
President Jackson overlooked the fact that Congress has the power
to impeach the President and the Supreme Court and that Congress
therefore exercised the sovereign law-making power of the people,
but he states correctly that “ the Supreme Court must not be per
mitted to control the Congress.”
M y friend, Judge Am es, I fear did not clearly understand Presi
dent Jackson’s view in his remarks on “ Jackson’s d ay' when he
quoted him as authority against m y position.
President Jackson overlooked the power of Congress to control
the appellate jurisdiction of the Supreme Court, which would make it
impossible for the Supreme Court to put itself in mischievous conflict
with the sovereign lawmaking power of the Nation.
Abraham Lincoln (I want you to see that I have some friends along
the line here; I am not entirely alone) resisted the Dred Scott de
cision and said that he would not oppose the decision as far as it
related to the slave individually, and then he said these memorable
words:
But we, nevertheless, do oppose that decision as a political rule which shall be bind
ing on the voter to vote for nobody who thinks it wrong; which shall be binding on the
Members of Congress or the President to favor no measure that does not actually concur
with the principles of that decision. * * * We propose so resisting it as to have it
reversed, if we can, and a new judicial rule established upon this subject. (Works of
Jefferson, vol. 12, p. 163.)
W ell, he had some trouble in reversing it. It took the bloodiest
war in our history to reverse it, and four years of fratricidal strife, and
billions of treasure; with grief, sorrow, heartburning and bitter hatred
that lasted for generations.
It is hard to reverse the decisions of the Supreme Court b y that
kind of a method, but it was reversed. They declared in the Dred
Scott decision slavery a constitutional right. W ell, the people didn’ t
think so, and the people changed that decision.
The Supreme
Court held the Missouri compromise on slavery unconstitutional
and void in the Dred Scott decision and held in effect that Congress
had no power as a forum to settle the question of slavery as long as a
single slaveholder objected.
This decision inflamed tbe North and
led to the withdrawal of the Southern States and to war.
THE CONSTITUTIONAL CONVENTION, 1788.
In the Constitutional Convention which framed this United States
Constitution, Edm und Randolph, on June 4, 1787, proposed the
following resolution:
jResolved, That the Executive and a convenient number of the national judiciary
ought to compose a council of revision, with authority to examine every act of the
National Legislature before it shall operate * * * and that the dissent of said
council shall amount to a rejection unless the act of the National Legislature be again
passed. (Elliott’s Debates, vol. 1, pp. 159, 164 , 214.)
WITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS VOID,
13
They didn’ t propose to finally veto an act of Congress and never
let it go into effect. They only; proposed to have a temporary veto,
and if Congress insisted on passing it then let it be the law, but even
that moderate proposition was three times defeated and never
received the vote of over 3 States out of the 13.
A like proposition was also rejected August 5, 1787.
(Elliott’s
Debates, vol. 1, p. 243.)
Only 11 members of the Constitutional Convention out of 65
favored giving the judiciary any control. These were Blair, Gerry,
Hamilton, King, Mason, Morris, W illiamson, W ilson, Baldwin,
Brearly, and Livingston.
Hamilton, Morris, Gerry, and several others of this group were
known to be strongly opposed to democracy.
George Washington, Charlie Pinkney, James Madison, and m any
others, 22 in number, are known to have expressly opposed any
judicial veto. There were 65 members and only 11 on record as
favoring any form of judicial interference with the legislative powers.
(This is fully set up in Davis on Judicial Veto, p. 49.)
The Constitution, however, speaks for itself; it puts the sovereign
power in Congress, the power to control the appellate jurisdiction,
and thus to prevent the exercise of the judicial veto, if it is attempted.
The judicial veto has been attempted.
I t has been exercised.
I t has been proven highly mischievous.
I t has become unendurable. [Applause.]
MARBURY V. MADISON CASE.
John Marshall was a federalist, an aristocrat, a reactionary, a man
of considerable ability, with a consuming desire for power, great
tenacity of purpose, and a great hatred for Thomas Jefferson and his
doctrmes.
John Adam s, the federalist, took advantage of the election of
Jefferson, the democratic republican, to put John Marshall, the feder
alist, on the bench as Chief Justice for life, as one of his last acts
before he turned over the Government to Thomas Jefferson. Keep
at m mind, because it m eant trouble, and here comes the first
trouble
In Marbury v. Madison, John Marshall violated the first
principles of government of the English-speaking people in assuming
the right to declare void the will of the National Legislature.
Congress (under A rt. I l l , sec. 1), in distributing the judicial powers
of the United States, when it established the Supreme Court b y the
ludiciary act of 1789, gave the Supreme Court, wisely and justly, and
lawfully in addition to its “ original” jurisdiction, the right to issue a
writ of mandamus as a part of the judicial powers of the United
States. Wby> a little citizen having a case against a great Cabinet
officer could haidly expect to get his relief from a small subordinate
officer of the judiciary department. W hen he makes a demand on
the Secretary of State for his right he ought to have the backing 0f
the very highest judicial authority— one that can speak to the Secre
tary of State on terms of some comparative equality.
John Marshall struck down that right on the pretense that Congress
had no right to add to the “ original” jurisdiction of the Supreme
14
WITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS VOID.
Court. Congress did not add anything to the “ original” jurisdiction
of the Supreme Court. The Constitution placed the judicial powers
of the United States in the Supreme Court and in such inferior courts
as Congress should establish, and Congress, in pursuance of that
authority, gave the right of issuing the writ of mandamus to the
Supreme Court, as it had a plain constitutional right to do.
A little fellow named Marbury, in the District of Columbia, had
been appointed notary public b y the retiring administration; his
commission had been made out; it had been signed by the President,
b y the Secretary of State, had the seal on it, and was lying on the
table of the Secretary of State for delivery. The incoming Secretary
of State refused to deliver it, and Marbury went to John Marshall,
Chief Justice of the Supreme Court of the United States, and asked
to have a writ of mandamus issued on the Secretary of State to de
liver that commission. John Marshall said “ no” ; that Congress
has no right to authorize the Supreme Court to issue writs of man
dam us; that was unconstitutional on the part of Congress. And
when he refused that jurisdiction of a writ of mandamus he seized
the power to declare an act of Congress void, and, therefore, at
tempted to make himself the judicial ruler of the United States, by
exercising a judicial veto over Congress.
The Congress of the United States ought then and there to have
impeached John Marshall. [Loud and continued applause.] H e
was guilty of a violation of the true meaning of the Constitution; he
himself in that act violated the spirit and purpose and meaning of the
Constitution, and he assumed the sovereign power over the legislative
agents of the people of the United States. H e held office for life,
and there was no way for the people to get at him except b y im
peachment, a hard and a difficult remedy. A great m any men who
would think he was wrong in his opinions, who would thmk that he
had done very wrong, would hesitate long before they would use that
drastic power, which exercised over a Supreme Court Judge blasts
his name for all history. The remedy is too drastic for the offense,
because, after all, the Congress can prevent the recurrence of that
kind of thing sim ply b y removing the appellate jurisdiction.
Jefferson denounced Marshall as a thief of jurisdiction, and Mar
shall never repeated that offense.
i t was 53 years before it was repeated, in 1856, and then, in the
Dred Scott case, it caused the enormous catastrophe of the Civil W a r.
FLETCHER VS. PECK CASE.
The next mischievous step taken b y John Marshall of national
importance was in Fletcher v. Peck, where an act of the Georgia
Legislature correcting a previous fraud was declared “ unconstitu
tional.”
In this case the legislature of Georgia had been deliberately
corrupted with m oney b y four land companies and induced to pass
an act conveying, without adequate compensation, an enormous grant
of land, some 40,000,000 acres, belonging to the people of Georgia.
The people of Georgia were enraged over it. They came together,
turned out the legislature; they elected a new legislature; the new
legislature immediately repealed the act. It came up before John
MarshalLs court, and after solemnly considering it he decided that a
State didn’t have the right to pass an act “ impairing the obligation
WITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS VOID.
15
of a contract.” The most mischievous consequences followed. It
was only necessary thereafter to corrupt a legislature and get the
grant made— that settled it.
Since that time m any courts have announced a wiser
That fraud vitiates a contract; that it is no contract
obtained corruptly.
DARTMOUTH COLLEGE CASE.
A far more dangerous opinion followed this Fletcher v. Peck case.
It was the Dartmouth case— a case that didn’t seem to be of any
importance at all. The legislature of New Hampshire passed an act
increasing the number of trustees of Dartmouth College. The old
trustees were Federalists; the new trustees anti-Federalists. Mar
shall and Washington were Federalists; they opposed the act of the
legislature. Duval and Todd supported the legislature. Marshall
succeeded in preventing a decision at that term, and by a political
campaign the other three judges, Johnson, Livingstone, and Storey,
were persuaded to agree with Marshall.
(Life of W ebster, by Lodo-e
p. 1 -8 8 .)
Listen to these words. Mr. Lodge says:
The whole business was managed like a quiet, decorous, political campaign.
Chancellor K en t says the decision in that case did more than any
other single act proceeding from the authority of the United States
to throw an impregnable barrier around all rights and franchises
derived from the grant of government.
(K en t’s Commentaries,
p. 419.)
’
Court is ^ j arS ^a^er ^ r- Chief Justice Cole, of the Iowa Supreme
16
WITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS VOID.
This gross error was corrected b y reversing it. Gen. Grant did
that b y appointing two new judges m favor of the legal-tender act
whose votes corrected the error of the Supreme Court b y reversing
the court. I t was an undignified remedy but better than none. Con
gress has this right now, but the American people do not and will not
approve any such practice. The judges on the Federal bench ought
to represent the matured judgment and will of the American people.
INCOME-TAX CASE.
W hen the Supreme Court declared the income tax void and trans
ferred the taxes from the wealth of the country, which is protected
b y the expenditure of such taxes, it disregarded the will of the
people of the United States and of Congress, vetoed the action of the
House of Representatives, of the United States Senate, and of the
President, reversed the decisions of the Supreme Court of the United
States for a hundred years, and it took the people 16 years to correct
it b y a constitutional amendment, at a cost to the consuming masses
of over $1,600,000,000.
SHERMAN ANTITRUST ACT.
W hen the Supreme Court declared the Sherman antitrust law only
intended to prohibit unreasonable restraint of trade, they rendered
the act nugatory and void. The effect of this decision was to
enthrone m onopoly and to raise the cost of living.
EIGHT-HOUR LAW.
If the Supreme Court should now nullify the eight-hour law and
the railways of the country should arm several hundred thousand
strike breakers with guns and pistols to face several hundred thousand
conductors, engineers, firemen, and brakemen, and their sympathizers,
no man can foresee the harmful consequences of such judicial veto of
the act of Congress.
THE REMEDY FOR THE JUDICIAL VETO.
The remedy which I have proposed is very simple.
The Constitution gives Congress all the power necessary.
A ll that Congress has to do is to pass the resolution I have pro
posed. The Constitution gives Congress entire control of the appellate
jurisdiction of the Supreme Court in the following words:
In all cases affecting ambassadors, other public ministers and consuls, and those in
which a State shall be a party, the Supreme Court shall have original jurisdiction.
In all other cases before mentioned the Supreme Court shall have appellate juris
diction both as to law and fact, with such exception and under such regulation as the
Congres? shall make.
The power of Congress in this matter was passed on in the case
of W illiam H . McCardle, an editor in southern Mississippi, arrested
by M aj. Gen. Ord who was putting into effect the reconstruction
■ Act in 1868. McCardle sued out a writ of habeas corpus from the
circuit court to the Supreme Court of the United States. The
WITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS VOID.
17
Supreme Court refused to exercise appellate jurisdiction and dis
missed the case on the ground that Congress had withdrawn appel
late jurisdiction in such habeas corpus cases, and that Congress
had the constitutional power to do so. I t was a unanimous opinion.
The court said:
We are not at liberty to inquire into the motives of the legislature. We can only
examine into its power under the Constitution, and the power to make exceptions
to the appellate jurisdiction of this court is given by express words.
What, then, is the effect of the repealing act upon the case before us? We can not
doubt as to this. Without jurisdiction the court can not proceed at all in any cause.
Jurisdiction is power to declare the law, and when it ceases to exist the only function
remaining to the court is that of announcing the fact and dismissing the cause. And
this is not less clear upon authority than upon principle.
It is obvious, therefore, that we have no occasion to discuss the past
history of the Supreme Court on the point of whether they have
usurped jurisdiction in declaring congressional statutes void. W e
need not go into the past. W e might say that since Congress has
permitted the right without protest to pass upon acts of Congress,
that it was not unreasonable that the Justices should think themselves
justified in exercising the power of saying an act of Congress was
unconstitutional. I am willing to acquiesce in that for the purpose
of the argument but not historically. M y proposition deals with
the future, not the past.
I have demonstrated without the possibility of a doubt that this
power is in Congress, and conceded to be in Congress b y a unanimous
opinion of the Supreme Court of the United States.
A nd I call your attention to the remarkable fact that m y friend,
Judge Stuart, in answering me, never made reference to that fact.
A V oice . Maybe he forgot it.
Mr. O w e n . Yes; maybe he forgot it.
Now, the ju stif cation for the withdrawal of these cases from the
Supreme Court I am going to state very briefly:
1 hese decisions which have been rendered have been against vour
interest.
I want you to know that in m y mind is no purpose to lower the
dignity of that great court. I respect and honor that great court;
I respect the learned and able gentlemen who comprise that court
individually and personally; I believe in their integrity of m ind’
I believe in their learning; I believe in their high personal honor; but
I tell you also that I believe when you have a jurv of Irishmen you
will get a home-rule decision. [Laughter and applause.]
FALLIBILITY OF MAN AND OF JUDGES.
A ll men are fallible. L ven judges are fallible. On the Supreme
Court, every season cases are decided by the hundreds, as the term
goes by, m which constantly there is a minority of judges on one side
and a majority of the judges on the other, and every time the major
ity decides a case against the minority there is a judicial ascertain
ment by the Supreme Court of the United States as to the fallibility
of each one of the members on the minority— did you get that ?-—
and there isn’ t a week that some of those judges are^not in the
minority, so that we have every day through the term the judicial
ascertainment by the m ajority of the Supreme Court of the United
S. Doc. 737, 64-2------ 2
18
WITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS VOID.
States of the fallibility of every one of its own members. W h y,
there is nothing surprising about that— everybody knew that, of
course. Just happened not to think of it? They are human beings
after all.
i
,
.
.
...
Just look at this Income T ax case, and look at the dogma of the
Supreme Court on the question of deciding an act unconstitutional
only when the unconstitutionality is overwhelmingly established, and
only when there is no doubt about the unconstitutionality of the act.
The professional dogma of the court is to give all benefits of the doubt
in favor of the constitutionality. The trouble about the dogma is
they never pay any vital attention to it. It is only a theoretical
dogma; it is not real; I will show you why. Here is the Income la x
case. For a hundred years the Supreme Court had sustained the
right of Congress to pass an income-tax law. Here was the' incometax law, passed by the House of Representatives, they said it was
constitutional; passed b y the Senate, they said it was constitu
tional; approved by the President of the United States, he said it was
constitutional. Here are the decisions of the Supreme Court of the
United States for a hundred years, and they said it was constitu
tional, and here were five judges on the bench, on the first vote, they
said it was constitutional, and then Judge Blank reversed himself
over night and joined the other four, which made them five, and then
they decided in spite of this dogma that there was no doubt whatever
about its unconstitutionality. Now, that is quite a remarkable thing.
Here is Judge Blank in that case who, when he first voted it was con
stitutional, judicially ascertained the fallibility of the other four
minority members of the court; and then when he changed his mmd
and joined the four minority members and made them five, he
judicially ascertained the fallibility of the four he had just left, and
since he was on both sides he must have been fallible. And there
was a demonstration of the fallibility of every judge on the court by the
action of Judge Blank. [Applause.]
MORTAL MAN INFLUENCED BY PREVIOUS ASSOCIATIONS AND OPINIONS.
Now, you all remember that famous case of Tilden-IIayes. Hero
were five of the justices of the Supreme Court; five of the most con
spicuous and able Senators of the United States; here were five of
the ablest Members of the House of Representatives, seven Democrats,
eight Republicans. There were four great contested election ques
tions with m any controverted questions, and every one of the 15
decided every case according to his own previous political predilec
tion, and the country was astonished to nnd that 8 was a majority
of 15. B u t they did discover it. [Laughter.]
Now, the point I want to make with you is that human beings of
the first magnitude are influenced by their training, by their environ
ment, b y their social atmosphere, and, sometimes, b y the men they
eat dinner with. [Much applause and laughter.]
Now, if you put the sovereign power of declaring void the acts of
your legislative representatives in the United States Supreme Court
not responsible to you, you m ay thank yourselves for the conse
quences.
WITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS VOID.
19
STANDARD OIL AND AMERICAN TOBACCO CASES.
Look at this great case known as the Standard Oil case. Here
was a case where the people of this country after years of struggling
finally had their Representatives in Congress, in the Senate and in
the House, both agree upon the Sherman antitrust law (1890),
making it a criminal offense to commit an act in restraint of trade,
vital if the principle of competition is to survive; vital if the monopo
lies are not to be permitted to kill off every competitor and have a
masterful control over the market and over the price which shall
be paid for that which you produce and for that which you are
compelled to buy. That law, it took you years to get on the statute
book. It finally, by the slow, dragging, wearisome process of the
court, came before the Supreme Court in the trans-Missouri and
joint-traffic cases, and there, in three different decisions, that court
declared that Congress meant what it said and that it was the law,
that any act in restraint of trade was criminal.
Ihen the trusts came to Congress and tried to get a remedy. I
want you to listen to the report of the Committee on the Judiciary on
tms very remarkable case. The proposed relief bill was introduced
by Senator Warner, of Missouri, January 26, 1908. Now listen to
this; I want you to listen. Here is the report of the Senate com
mittee refusing to write the word “ reasonable” into this act. Con
gress had said it is not reasonable for you to deny liberty to another
man, no matter how sm all; it is not reasonable for you to meet and
act in restraint of trade, restraining some other man from his rights.
Listen to this Senate com m ittee:
^ ? mfiakes ? .cnminal offense t0 violate the law, and provides a punwhSw o S r d
f ne and imprisonment. To inject into the act the question of
an. % reement or combination is reasonable or unreasonable would render the
J
t
t
e
r
T
v
' “ definite and uncertain, and hence to that extent
the" actnU*at*Fy*an a
Z 0UM Practically amount to a repeal of that part of
• . ud while the same technical objections do not annlv in pivil
P eaT ^
HUle °f reasonableness or unreasonableness would
eaa to me greatest variableness and uncertainty m the enforcement of the law Tbo
b“ made
t a e *wiuM
y ,uuierent rules ol reasonableness
as cases, courts, and iuries
* * To
amend the antitrust act, as suggested by this bill, would be to entirely emasculate if
and for all practical purposes render it nugatory as a remedial statute.
’
President 1 aft, in a special message to Congress January 7
T a L T X e n ? wouTd
S°
1910
the k w ' and said that ^
fmi int0,t.h(r hakds of the court a power impossible to exercise on any consistent min
ciple which will insure the uniformity of decision essential to good government Tt
is to thrust upon the court a burden that they have no precedents to enS le tlmm to
carry and to give them a power approaching the arbitrary, the abuse of wWcl n iVlU
involve our whole judicial system in disaster.
3
OI wmcn rm8nt
The Supreme Court in the Standard OU cases and American
tobacco case (1911), thereupon proceeded to emasculate it and
render it nugatory b y writing an opinion which in effect held that a
reason abk reetram t of trade was not unlawful after Congress had reI am going to read to you just one opinion from Judge Harlan on
this case, and then I am going to quit that. Listen to tfie o p im on o
fflB S tas “
"—
and Joint Traffic cases adjudged t S th eT t'o f ^ ^ ^ d i d ^ o t ^ o T r ^ ^ T o f
V
W B m
20
WITHDRAWING POWER TO DECLARE ACTS OP CONGRESS VOID.
interstate trade to any extent or in any form, and three times it expressly rejected the
theory, which had been persistently advanced, that the act should be construed as if
it had in it the word “ unreasonable” or “ undue,” but now the court in accordance
with what it denominates “ the rule of reason,” in effect inserts in the act the word
“ undue,” which means the same as “ unreasonable,” and thereby makes Congress
say what it did not say—what, as I think, it plainly did not intend to say, and what,
since the passage of the act, it has explicitly refused to say. It has steadily refused to
amend the act so as to tolerate a restraint of interstate commerce, even where such
restraint could be said to be “ reasonable” or “ due.” In short, the court, by judicial
legislation, in effect, amends an act of Congress relating to a subject over which that
department of the Government has exclusive cognizance. I beg to say that, in my
judgment, the majority in the former cases were guided by the “ rule of reason,” for,
it may be assumed, they knew quite as well as others what, the rule of reason required
when the court seeks to ascertain the will of Congress as expressed in a statute. It is
obvious, from the opinions in the former cases, that the majority did not grope about
in darkness, but in discharging the solemn duty put on them they stood out in the
full glare of the “ light of reason” and felt and said time and again that the court could
not, consistently with the Constitution, and would not, usurp the functions of Congress
by indulging in judicial legislation. They said in express words in the former cases,
in response to the earnest contentions of counsel, that to insert by construction the
word “ unreasonable” or “ undue” in the act of Congress would be judicial legisla
tion. Let me say, also, that as we all agree that the combination in question was
illegal under any construction of the antitrust act, there was not the slightest neces
sity to enter upon an extended argument to show that the act of Congress was to be
read as if it contained the word “ unreasonable” or “ undue.” All that is said in the
court’s opinion in support of that view is, I say with respect, obiter dicta, pure and
simple.
In respect to the decision on the income tax, Mr. Justice W hite, in
dissenting, said:
I consider that the result of the opinion of the court just announced is to overthrow
a long and consistent line of decisions, and to deny to the legislative department of
the Government the possession of a power conceded to it by the universal concensus
for 100 years, and which has been recognized by repeated adjudications of this court.
(157 U. S., 429.)
Mr. Justice Jackson of the Supreme Court, in his dissenting opinion
on the income tax decision, said:
Considered in all its bearings, this decision is, in my judgment, the most disastrous
blow ever struck at the constitutional power of Congress. (158 U. S., 705.)
Mr. Justice Brown, in his dissenting opinion, said:
I can not escape the conviction that the decision of the court in this great case is
fraught with immeasureable danger to the future of the country and that it approaches
the proportions of a national calamity. * * * I hope it may not prove the first
step toward the despotism of wealth. (158 U. S., 695.)
Mr. Justice Harlan said:
It so interprets constitutional provisions * * * as to give privileges and immu
nities never contemplated by the founders of the Government. * * * The
serious aspect of the present decision is that by a new interpretation of the Constitution
it so ties the hands of the legislative branch of the Government that without an amend
ment of that instrument or unless this court, at some future time, should return to the
old theory of the Constitution, Congress can not subject to taxation, however great
the needs or pressing the necessities of the Government, either the invested personal
property of the country, bonds, stocks, and investments of all kinds, etc. * * *
I can not assent to an interpretation of the Constitution that impairs and cripples the
just powers of the National Government in the essential matter of taxation and at the
same time discriminates against the greater part of the people of our country. (158
U. S., 695.)
Mr. Justice Harlan also said on another occasion:
When the American people come to the conclusion that the judiciary of this land
is usurping to itself thefunctions of the legislative department of the Government, and by
judicial construction is declaring what is the public policy of the Lnited States, we
will find trouble. Ninety millions of people—all sorts of people with all sorts of
1
W ITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS VOID.
21
beliefs—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. (221 U. S. 1,106.)
Mr. Theodore Roosevelt, before the Colorado Legislature, pointed
out the grave danger in recent court decisions in defeating humane
laws, and stated:
If such decisions as these two indicated the court’s permanent attitude there
would be really grave cause for alarm, for such decisions, if consistently followed up,
would upset the whole system of popular government.
A nd he referred to such decisions as “ flagrant and direct contra
dictions to the spirit and needs of the tim e s ."
Senator Robert M. LaFollette, in his introduction to Gilbert E .
R oe’s work, “ Our judicial oligarchy," said:
Precedent and procedure have combined to make one law for the rich and another
for the poor. The regard of the courts for fossilized precedent, their absorption in
technicalities, their detachment from the vital, living facts of the present day, their
constant thinking on the side of the rich and powerful and privileged classes have
brought our courts into conflict with the democratic spirit and purposes of this genera
tion. Moreover, by usurping the power to declare laws unconstitutional, and by
presuming to read their own views into statutes without regard to the plain intention
of the legislators, they have become in reality the supreme law-making and lawgiving institution of our Government. They nave taken to themselves a power it
was never intended they should exercise; a power greater than that entrusted to the
courts of any other enlightened nation. And because this tremendous power has
been so generally exercised on the side of the wealthy and powerful few, the courts
have become, at last, the strongest bulwark of special privilege. They have come
to constitute what may indeed be termed a “ judicial oligarchy.”
Thomas Jefferson, in his letter to Mr. Jarvis, in 1820, rebuked him
for assuming that judges should have power over the legislature,
the judges being themselves beyond control except by the impossible
remedy of impeachment, and said :
You seem to consider * * * the judges as the ultimate arbiters of all constitu
tional questions; a very dangerous doctrine, indeed, and one that would place us
under the despotism of an oligarchy.
A number of books have recently been written upon this matter,
as “ Our judicial oligarchy," by Gilbert E . R oe; “ The judicial v e to ,"
by Davis; “ The m ajority rule and the judiciary,” by W illiam N .
Ransom, with an introduction by Theodore Roosevelt; “ The Spirit
of the American Constitution," by Prof. J. Allen Sm ith; all which
emphasize the need to correct the practise I have referred to.
I could quote you m any such opinions, but I must not take too much
of your time. I want to conclude what I have to say. I want to call
your attention to this: lh a t just as soon as the decision was rendered
in the Standard Oil case, declaring that “ reasonable" restraint of
trade was the meaning of Congress, and that Congress didn’ t make
criminal any act in reasonable restraint of trade, the Standard Oil Co.
stock went right up. The people were advised in the country that the
Standard Oil Co. was being dissolved. The papers announced that
the Standard Oil Co. of New Jersey had received a terrible blow by
this decision. The effect of that decision was the immediate rise in
the market price of the Standard Oil stock. I sent a telegram the
other day to John M oody, the great statistician and head of&M oody’s
Investors’ Service, and M oody sent me back a telegram that this
stock of the New Jersey Standard Oil Company and its subsidiaries
capitalized at one hundred million, and at the time of this decision
m 1911 worth$600 a share, or $600,000,000, was now worth on the
22
WITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS VOID.
market (within a period of six years) $2,400 a share, or a gross
market value of $2,400,000,000. Do you get that ?
D on’ t make any mistake about what that means. I t will explain
something about the 40-cent oil at Healdton and at Cushing. Now,
m y fellow citizens, I only refer to that one company (there are very
m any others of like purport), and I want to say to you that I believe
it is a wise policy for the people of the United States to deal with
corporations, no matter how large they are, with the same exact jus
tice that they deal with the smallest citizen; but, at the same time, it
is essential that we should protect the small citizen against the unfair
exactions of predatory power. I have no prejudices against great
organizations, but am proud of their accomplishments in America.
All I want to see is that they do not use their great power tyrannically.
The gain on this stock in six years is $1,800,000,000. It is not
all due to this decision; it is due to other factors, in part. But in m y
opinion a large part of this increase is due to that decision of the
Supreme Court m nullifying and emasculating the antitrust law
passed b y Congress.
JUDGE STUARTiS REPLY.
W e all saw in the paper a short time ago where a man in Chicago,
by getting a m onopoly on eggs in cold storage cleaned up a million
dollars. H e was only doing on a small scale what the big boys are
doing on a large scale; that is all.
Do you object to paying 60 cents a dozen to speculators for eggs?
T hat is a very small thing. Judge Stuart seems to think you ought
not to object to paying 60 cents a dozen for eggs. Judge Stuart
regards it as a joke. H is answer to me before the legislature, when
I pointed out this invasion of the legislative powers o f the people by
this decision of the Supreme Court and the result of their decision in
the Standard Oil case— his answer to me was that, “ something had
been said about the Standard Oil Co. case” ; he didn’t say what—
and that the high price of eggs was attributed to the decision in the
Standard Oil case.
If the people of this State wish to regard the high cost of living as
a piece of humor they will know where to go and get their advice.
Now I observe in this argument of Judge Stuart to what I said
he answers not a word about the power o f Congress— no answer to
th at; no adequate answer to the importance of letting the people
know what the law is; no answer to the need of having in Congress
a responsible forum for the settlement of internal disputes.
After we got the Sherman antitrust law it was on the statute
book 21 years before the Supreme Court emasculated it. W hen a
law is passed now you do not know whether it is the law or not.
W e have passed this eight-hour law, and the gentlemen who control
the railway property o f the country promptly announced that they
would pay no attention to it at all until it was decided constitutional
by the Supreme Court of the United States.
W ell, I intend to introduce another act of the same kind and attach
to it a condition that the question of its constitutionality shall not
go to the Supreme Court. [Loud and continued applause.]
W hen men become so large that they feel they can openly defy
the lawmaking power of the people of this country, I tell you the
time has come to withdraw from the Supreme Court this refuge
upon which such gentlemen rely.
WITHDRAWING POWER TO DECLARE ACTS OF CONGRESS VOID.
23
M y friend, Judge Stuart, tries to prejudice the jury. H e talks
with pathos about that great and honored southern statesman,
.Robert E . Leo, whom we adore, and the confiscation of his home
stead. It is a red herring drawn across the trail.
The fact is the confiscation acts were declared constitutional by the
Supreme Court. And the fact is that it was not Robert E . Lee, it
was George Washington Custis Lee, the president of m y old college
whom I knew well, who brought an action (and the Supreme Court
upheld him in his right) to recover a fair money value for the property
taken for a burial ground for the soldiers and sailors of the United
States.
1 merely mention that because the judge so emphasized the great
accuracy that he should observe, and I think it worth while to call
your attention to the facts, as they seem to be.
In the case of the Oklahoma State capital, Congress passed the
enabling act fixing the capital at Guthrie for a certain length of time,
due to the activity of certain distinguished citizens who lived up there,
I suppose. The State of Oklahoma accepted that act with that
clause m it, and, then, not feeling bound by it, they exercised their
IU
tcV°h a referendum vote, and voted to bring the capital
to Oklahoma City. They were within their rights, and the Supreme
ourt, when the matter went up to them, very properly said so, and
f / - ° not doubt m the least that Congress would have said the same
•
i u
1”Tef ],lad had an opportunity to pass on it after the vote
in Oklahoma if the citizens here desired that that should be done
So much for that “ appeal to the ju ry.”
[Applause.l
It, shows the poverty of Judge Stuart’s argument when he is driven
to use arguments of that kind.
I lien the next question the Judge raised was that the only thing
which protects our daughters from being obliged to sit down, side
a sn° gr0 m f he theater and at the
table was the
ao ion of the Supreme Court of the United States. [Laughter.]
W ell, I don t know about that, I think not, I know better.
manhood
^ Ssouth,
o u th °"Tlfie
b e dsovereignty
^
" hil? P
o{ the ”South
was the1
mannooci o
otfth
tlie
ofr0|?le
the people
rAnnhiu^
Make no mistake about that. M y people were Sieve
PP
]
I he civil-rights case was one single example, where political oreiu
dice went too far, but those cases didn’ t arise in the
thevarose
m Kansas, California, and New York if I
n^V rn l
i J
S
border States of Missouri and Tennessee. A nd I think the Supreme
Court was quite right m declaring it unconstitutional and the
Supreme Court in doing so respected the will of the white race of the
ISorth and W est, as well as of the South. That is about the only thingI now recall they have done in the wav of d e c l a r i n o - : ,
lg
conslitutiunnl that I really fully approve of. The Supreme Court has
had a splendid and honorable career. I am proud of that great court
but when you go back through these cases, notably the W d Scott
case, the legal-tender cases, the incom e-tax cases the Standard nil
case the American Tobacco case, in all of S
e ^ e s where t h w
decided against Congress, there followed the most harmful cons,”
quences to the people of this country. The whole tr,,„l,n . ; 1 U ”
can’ t get at the Supreme Court if it"m ak es a mistake but if yr ° "
Thompson, Member of Congress from this district m £
a mistake
or if Robert L .O w en , your Senator, makes a mistake y o u T a n get
at them quickly, and that is the vast difference, that is ”the exeefd
South;
24
WITHDRAW ING POWER TO DECLARE ACTS OF CONGRESS VOID.
ingly important difference, if you wish to maintain democratic
popular government.
. . ,
Taking this power from the Supreme Court will not dimmish its
docket or its dignity. They have a docket now of 700 cases, and
they can not read the full record of those cases in a single term; they
have more now to do than they ought to be required to do.
They
ought, themselves, to ask Congress to limit the character of cases
that come before them, both for their own sake and for the sake of
litigants. I have talked to some of the judges about this need and
they would welcome some relief, I am sure.
I do not believe the honorable justices on this court want to retain
this responsibility which they now believe rests on them by law and
certainly it will be better for the -country to w ithhold it.
I t will improve the dignity and high standing of the Supreme
Court; it wilt improve the standing of the Supreme Court with the
people of the United States; the people will have more confidence m
that great court if the court is not put in the painful position of bemg
put in conflict with Congress to the injury of the dignity of the court.
Now, m y fellow citizens, the question merely comes down to this:
W h y do the people of this country, in sending its lawmaking agents
to Washington, make them responsible to the people at home ( E vi
dently so the people can correct the errors of Congress if the Congress
errs. The crucial question is, D o you wrant Congress able to give
relief to the country and be responsible to you, or do you w^ant Con
gress to pass laws and have them declared void by a power over w hich
you can exercise no control ?
V oices . N o, no.
A V oice . Take a vote.
A V oice . Y e s ; take a vote.
A V oice . L et’s have a vote.
Senator O w e n . N ow , wait a minute.
.
If wre are going to vote, let s
Those wLo are in favor of the proposition
have a fair vote on it.
please arise.
St e n o g r a p h e r ’ s n o t e .— Out of an audience calculated by those who are supposed
to know at 1,250, practically the entire assembly rose to their feet.
Those opposed will now please rise.
St e n o g r a p h e r ’ s
n o t e .— Ten,
by count, rose.
Ladies and gentlemen, these questions are before the American
people. They ought to be discussed in good nature, in a friendly
spirit, and we ought not to enter into the discussion of the question in
an unkind w^ay, much less to speak unkindly of our great and honored
Supreme Court.
.
. . . A.
, .,
I believe the time has come when the legislative powers ol the
people ought to be exercised free from interruption so that the people
can understand wTiat the legislature means and then let the legr*iature be responsible to the people of this country. L et us know what
the law means the moment it is passed. Let the Department of
Justice be able to tell our business men immediately (when they ask)
what the law is, and not be left to say: The department can not say
until some test case is settled a fewT years hence by the Supreme
Court.
I thank you for your courteous attention. [Applause.]
o
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