Source: The New York Daily Call, June 12th, 1911. Vol. 4, No. 163.
Public Domain: This work is free of any copyright restrictions.
Transcription and Markup: Bill Wright for marxists.org, August 2023.
MIA Editor’s Note: This is a reply by W. J. Ghent to an earlier article by Louis B. Boudin titled A Serious Blunder and published in the International Socialist Review. Boudin’s article is available to read here. Notably, Ghent’s reply was published in the New York City centered Daily Call newspaper rather than the Review itself.
Mr. Gustavus Myers, in his “Prospectus of the History of the Supreme Court,” implies that the members of the Constitutional Convention of 1787 were resolved to lodge the ultimate power in the judiciary. Mr. Louis B. Boudin, in the latest number of the International Socialist Review, inclines to the belief that even a slight knowledge of history is enough to convince one that the Constitution never gave to the Supreme Court the power to annul laws.
The question is one which has been thrashed out over and over again. It is like the States Rights question, which kept two generations of Americans in turmoil. Perhaps it will never be settled. It has a present interest from the fact that Mr. Boudin uses his opinion on the matter as the basis for an attack on Representative [Victor] Berger for having included the limitation of judicial powers in his Constitutional amendment regarding the Senate.
It is to be said, however, that the consensus of views and opinions printed about the time of the Constitutional Convention tend to support Mr. Myers’ view and not Mr. Boudin’s. Take, for instance, the testimony of Luther Martin. He had somewhat the advantage of Mr. Boudin in that he was a member of the convention. Martin went back to Maryland strongly opposed to the Constitution. One of his main objections was the grant of powers given to the judiciary. “Whether, therefore,” he writes, “any laws or regulations of the Congress or any acts of its President or other officers are contrary to, or not warranted by the Constitution, rests only with the judges who are appointed by Congress to determine; by whose determinations every State must be bound.”
In Martin’s manuscript most of these words are underscored in order to emphasize the unjustifiable grant of powers. By the phrase “appointed by Congress” he means only the fact of confirmation by the Senate.
Alexander Hamilton was also a member of the Constitutional Convention. He was quite as sure as was Martin that the judiciary had been given the power to annul laws. To him this was a commendable and indeed a necessary feature of the Constitution. In No. 78 of the “Federalist” he declared most specifically that it was a duty and power of the courts of justice to declare void “all acts contrary to the manifest tenor of the Constitution.”
There is another contemporaneous bit of testimony which is even more weighty. That is, that the final draft of Article III of the Constitution is far stronger and more inclusive as to the powers of the judiciary than are any of the resolutions on the subject introduced in the convention. The draft of Edmund Randolph, that of Charles Pinckney, that of William Patterson, and even that of Alexander Hamilton, define a judiciary of much more limited powers. The Randolph resolutions, as altered and amended in the Committee of the Whole of the convention, also imply a judiciary of limited powers. The resolutions of July 23 and 26, and the report (August 6) from the committee to which these resolutions were referred are of much the same character, though in the latter the judicial power is extended. It was not until the Constitution was in the process of final amendment and adoption by the whole convention that the wording took the strong and inclusive form which it now bears. There was thus a gradual strengthening of the judicial powers during the sessions of the convention. The Federalists were generally confident of the power of the courts, and the Anti-Federalists were apprehensive.
Mr. Berger has made no mistake in including the judiciary powers in his Senate amendment. So far as a practical issue is concerned, the curtailment of the powers of the judiciary is just about as feasible as the amending of the Constitution. But it is necessary to show the working class in every possible way the fact that the Constitution is an obstacle to any kind of fundamental legislation; and every time this showing is made it aids in focusing attention on the main point.
Whether or not the Constitution actually gives to the judiciary the power to annul laws is a matter for interminable debate. The fact remains that the judiciary claims that power, the legislative and the executive branches acquiesce, and so this judicial power is, for all practical purposes, a constitutional power.
In order to achieve anything that the working class really needs, it is necessary to weaken in every possible way the popular sentiment of reverence for the Constitution. Everything that can be done to this end advances the probability of our having a constitutional convention. It is a reasonable expectation that by a concentration of effort the Socialist party could, within five years, awaken sufficient sentiment to bring about such a convention. The Wisconsin Legislature has already memorialized Congress to that end, and it is not to be doubted that the movement has now begun to make definite headway. When the working class learns that the main obstacle to its advancement is not the judiciary, but the Constitution, behind which the judiciary hides, the old document will be erased.
W. J. Ghent.
Last updated on 4 August 2023