Page:The Green Bag (1889–1914), Volume 20.pdf/600

 UNCONSTITUTIONAL LAWS answer is that the power and the weakness were both considered in the debates over Randolph's proposition, and the power deliberately left as it was. While the other two are crying out against an excessive power in the court, "not needed and not known in any other country," President James's trouble is that the court has not done and cannot do more to adapt a constitution, made for scattered states, to the needs of the industrial and commercial empire for which Congress now legislates; and that the effort to do so has overlaid the instrument with interpreta tion like a disguise. Everything has the defects of its good qualities. A new con stitution if made would be like the old one, a bundle of compromises. It must be admitted that constitutional compromises •when brought into court are likely to show their seams; but so they do on the hustings and in legislative halls. The new consti tution would have to be made legal or

459

purely political. The courts would have to be given the duty to construe it or told not to do so. There is not likely to be found any one bold enough to propose the latter alternative. It is submitted that to start in with a new course of judicial interpre tation on a fresh bundle of compromises would be throwing away a century's time and effort. But a serious proposition to furnish a new constitution deserves a whole article to itself, and indeed many articles. It is referred to here 'to show how inconsistent is President James's line of objection with the other claim of excessive usurped authority in the court. If the power to pass judi cially upon the constitutionality of a law is usurped, then in the language of a friend from the Emerald Isle, "Sure it may be, but anyhow it was all provided for and acquiesced in more than fifteen years before it happened." LINCOLN, NEB., August, 1908.