"We do not take possession of our ideas, but are possessed by them. They master us and force us into the arena, Where, like gladiators, we must fight for them.”—Heine, THE ARENA. VOL. XIX. JUNE, 1898. No. 103. USURPATIONS OF THE FEDERAL JUDICIARY IN THE INTEREST OF THE MONEY POWER. THE BY HON. DANIEL L. RUSSELL, HE Constitution is illusively supposed to be the creation of the Convention of 1787. After a hundred years of its existence and expansion, the major part of it is the creation of progressive judicial construction. To prove this requires more space than the scope of this article permits; but it will hardly be denied by capable constitutional lawyers. First there were forty years of liberal and progressive interpretation, then thirty years of strict construction, then a reaction, and now a period of construction, either expansive or restricted according to the demands of concentrated wealth. The judicial policy of this day is to strike down the States and yet to narrow the delegated powers of the national legislature wherever necessary to barricade against the advancing hosts of populism. It is perhaps well that there should be a tribunal like the Supreme Court, with power to interpret the Constitution and to stay the hand of Congress. In this there is nothing dangerous in the long run. These judicial arbitrators under our federal system, although nominally and apparently independent of the people, are really subject to their control. Every federal court is the creation of the legislative will. The power that made it can unmake it. The Supreme Court itself can be controlled by the authority residing in Congress to reduce or enlarge its membership. Right here the supreme struggle must come. To swing back the country to the control of the people, to reverse false doctrines and pernicious constitutional constructions, to prevent the failure of this last and best attempt at free government, it is important to get a House, Senate, and President that will reorganize the existing judicial system, abolish the judges who stand for plutocratic privilege, and establish courts commanded by judges who stand for the rights of man. By this means the popular will may be exerted and enforced. The framers of the Constitution hardly thought that they were conferring upon the Supreme Court the power to veto the acts of the House, Senate, and President-a veto which is exercised whenever the Court chooses to think the act is unconstitutional. And their thinking it so is generally because they want it to be so. Nor is there in this anything novel or startling. It is just what was done by Jefferson and the Congress who came in after the defeat of the Federalists in 1800. When William of Orange was contending with a reluctant or hostile House of Lords he gruffly informed them that they could pass his measures or he would reorganize them, he would pack their House by converting his Dutch guards into peers of the realm. Reorganizing courts for the purpose of enforcing obedience to parliamentary will is not unknown in the history of that constitutional monarchy which is so much adored in the high society of American money lords. In part proof of the assertion that we are approaching a period of intolerable judicial supremacy, let certain recent cases be cited. The national external and internal taxes are insufficient to meet the expenses of the government. To meet this deficiency the country wants a tax on the incomes of the rich. This is enacted into law. From the nation's court comes a veto-a veto so prompt that in the days of the fathers, when sentiment was not so debauched by the struggle for wealth, it would have been regarded as premature. So prompt was the Court to get in its work that it would not wait for a bona-fide case to be brought to its bar. It rushed in to give its decision in a case that was not a genuine controversy between parties with opposing interests, but was virtually fictitious, was manifestly concocted to extract from the Court an opinion against the income law, and was clearly collusive between the parties. The supreme issue was on. The millionaires demanded exemption from federal taxation. They were not afraid of the States. If one State seriously taxed their incomes they would move to another. No State could afford to offend them for fear of driving them out. They could congregate on one State by acquiring in it actual or nominal residence. As to that matter they could buy a State or so and use them as pocket boroughs for their own convenience. The only way to tax their incomes is by Congress. Take from Congress that power and they are safely landed above and beyond the law. Says the Constitution: "Direct taxes shall be apportioned among the States according to numbers." This makes a direct tax impracticable. To get rid of the income tax then the Courts must hold that income taxes are direct taxes. The framers of the Constitution thought that the only direct taxes were taxes on land and polls. So thought the lawyers and judges and statesmen of the republic for a hundred years. But these judicial arbitrators of last resort, by a vote of five to four, upturn the settled interpretation of the Constitution and decree that the overgrown rich shall not be taxed. Their victory is apparently complete. Nothing can defeat them but a constitutional amendment or a reorganization of the Supreme Court. In North Carolina the reorganization syndicate of the Richmond and Danville Railroad Company, now converted into the Southern Railway Company, obtained from certain agents of the State its great central railroad two hundred and twenty-three miles long, and forming an indispensable connecting link between the northern and southern sections of the Southern railway system. They acquired this great property by getting a lease upon it to them for ninety-nine years. This was substantially a sale. The Governor of North Carolina, in a message to the legislature, charged that the terms of the sale were unfair to the State, that the sale was procured |