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Updated: May 31, 2025
When we come to the consideration of the course of politics in the United States we shall see the answers that history has given to them. The government of the United States is the judge of its own powers, for it is in its own supreme judicial tribunal that the constitutionality of both State and Federal laws is finally determined.
They not only abrogate the acts of Congress commonly called the tariff acts of 1828 and 1832, but they prostrate and sweep away at once and without exception every act and every part of every act imposing any amount whatever of duty on any foreign merchandise, and virtually every existing act which has ever been passed authorizing the collection of the revenue, including the act of 1816, and also the collection law of 1799, the constitutionality of which has never been questioned.
The doubt of its constitutionality proved an obstacle too grave for the friends of the workers to overcome. It was decided to substitute a ten-hour bill, an exact duplicate of the "Oregon Standard" established by the Supreme Court of the United States.
Despite the lessons of history showing the need of specified limitations upon the legislative power to ensure personal liberty and justice, it is still urged by the impatient that this check upon legislative action should be removed, or at least that the legislature should itself be the judge of the constitutionality of its acts, and that the legislatures as the representatives of the people may be trusted to observe constitutional requirements and limitations.
In the event that the court should affirm the constitutionality of the act, I urge further legislation along the lines advocated in my Message to the preceding Congress. The practice of putting the entire burden of loss to life or limb upon the victim or the victim's family is a form of social injustice in which the United States stands in unenviable prominence.
But it was impossible to comprehend how a candid legislator could maintain the Constitutionality and expediency of the Act, and then propose to suspend it for that specific period of General Grant's administration, when, if needed at all, it would be most needed.
Still the protective idea was there; it was recognized in the preamble of the act, and the constitutionality of the policy was affirmed by the framers and contemporaries of the Constitution. Hamilton, of course, watched all these movements intently. His guiding thought in all things was the creation of a great nation.
Nor can there be much doubt that the members of the Convention were also substantially agreed that the Supreme Court was endowed with the further right to pass upon the constitutionality of acts of Congress.
It is unfair to the people, both as to questions of constitutionality and of interpretation. A statute can be so drawn as to need no interpretation, or none the outcome of which can be a matter of doubt to any competent lawyer. A legislature abandons its function when it enacts what it does not understand. The Sherman Anti-Trust Act is an instance of legislation of this character.
It was Boss Graham who warned us that we had better concentrate on one measure, if we wished to succeed with any at all, and we decided to put all our strength behind the "three-fourths jury" bill. Since Graham seemed to doubt its constitutionality, I went to the Attorney General for his opinion, and he referred me to his assistant whom I convinced.
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