SENATOR AUSTIN'S ADDRESS

731

United States for 150 years has successfully guarded the institutions which expel autocracy and animate free government. The authority of this highest tribunal of justice consists of the moral energy springing from popular belief and confidence in, and respect for, the purity, wisdom, and independence of the court.

The limitation upon its function, confining its judicial opinions to cases of injury litigated in due judicial course between parties having a legal interest therein, has maintained that separation of it from the executive and legislative branches of government which has been an effective barrier against concentration of sovereignty. Its judicial power cannot be extended by itself. When properly summoned, it is the duty of the court, from which it may not shrink, to exercise this power. In cases and controversies in which legal judgment can be rendered, it must declare the law. However, that declaration, to endure, must be right. Herein rests the safety of popular government. No departure from this limitation can be suffered. Advisory opinions may not be required of the court by either Congress or executive. Moot cases may not be heard and decided by the court.

The wholesome restriction by the Constitution of original jurisdiction to but a few cases, has not only proved to be peculiarly beneficial to a federal system dependent upon maintenance of local state sovereignties, but it has given vigor to the principle of responsibility direct to the people. The Supreme Court derives whatever exclusive jurisdiction it possesses, and all of its judicial power, from the people by a direct grant. It does not receive such power from Congress, as other federal courts do. This jurisdiction cannot be enlarged nor can it be taken away save by the people themselves. This unique characteristic of the court protects states and citizens from the central government and conserves for the people the prerogative of change. Appellate jurisdiction alone is subject to regulation by Congress.

The supremacy of our fundamental law-the known covenant of our rights is peculiarly the charge of the court. All citizens, and all officers, high and low, are bound to support the Constitution; yet this is inadequate to perpetuate our free institutions. This we know by the tragic experience of our forefathers without fixed laws to live by.

The people's law, made by themselves, for themselves and their posterity, was fixed in the Constitution. It can be changed only by the people. It cannot be changed by government. It is intended to govern government. It protects the citizen from the government. Those two fortresses of their liberty-state sovereignty and de

centralization of federal rule-depend upon its sanctity. Therefore, the people established an institution with the novel power of giving stability and vitality to the people's law. The Supreme Court is particularly the people's court.

Though not expressly described in the Constitution, the right to declare statute void for conflict with the fundamental law is clear by necessary implication and inevitable practice. This has been the rod by which the people have disciplined their government. The certainty of its use, notwithstanding the roaring of the transgressors, has punctuated the history of our remarkable progress economically, politically, and socially. Its use has been the marvel and admiration of statesmen, jurists, and historians of other countries.

It has preserved our form of government. For a century and a half it has enabled a logical development of the American system. It has prevented a gap occurring between the limits of the powers of the republic and those of the several states, and likewise it has prevented the overlapping of those powers. It has defined the frontiers and boundaries of jurisdiction.

When the national sovereignty was at low ebb, the court, under Marshall, turned the tide. When the backwash of the War between the States threatened to engulf the South, the court, under Salmon P. Chase and other northern judges, erected a dyke against the reaction. More recently, when the federal government encroached on local self-government, the court, under Hughes, threw up the barricade of judicial protection.

The Supreme Court does not determine or change policy. Its action is but a brake on speed. In due time, change of the fundamental law can be made in conformity to the well-settled public opinion and the prescribed methods. Its power is simply the authority to dispose of a controversy before the court in which one citizen who is a party to a case claims rights guaranteed to him by the Constitution. It is not the absolute negativing or revision of law. This was refused by the constitutional convention.

If public opinion should desire centralization of a power in Washington and diminution of local self-government, the negation by the court of congressional acts can be surmounted by amendments. However, I believe in the principle so precisely stated by Calvin Coolidge: "No method of procedure has ever been devised by which liberty could be divorced from local self-government. No plan of centralization has ever been adopted which did not result in bureaucracy, tyranny, inflexibility, reaction, and decline."

The record of the Supreme Court has been great and good. The

perpetuity of our free institutions will be secure just so long as the people freely give obedience and respect to the judgments of the court.

PROCEEDINGS IN THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES

THE SPEAKER. Members of the House of Representatives: As you are doubtless aware, this is the one hundred fiftieth anniversary of the first convening of the Supreme Court of the United States. I understand that appropriate ceremonies befitting this anniversary have already been held in the building of the Supreme Court of the United States; however, it was thought entirely fitting and proper, inasmuch as that great Court very kindly joined the House of Representatives and the Senate some weeks ago in celebrating the one hundred fiftieth anniversary of the convening of the First Congress of the United States, that some notice should be taken of today's important historic event by the House of Representatives. Two members of the House have kindly agreed to deliver addresses appropriate for the occasion.

It gives me very great pleasure to present to the House of Representatives the gentleman from Kansas [Mr. GUYER].

ADDRESS OF HONORABLE ULYSSES S. GUYER

REPRESENTATIVE FROM KANSAS

MR. SPEAKER AND MEMBERS OF THE HOUSE OF REPRESENTATIVES: First, permit me to say that I deem it a distinguished honor to appear on this program with the beloved chairman of the Committee on the Judiciary, the gentleman from Texas, Hon. Hatton W. Sumners, whose greatness of heart, mind, and legal attainments eminently qualify him for a seat on the illustrious court whose sesquicentennial we celebrate today.

On the one hundred fiftieth anniversary of the first session of the Supreme Court of the United States we naturally turn to the convention which created not only the Supreme Court but also the government of our beloved country.

The men who assembled in Philadelphia on Friday, the 25th of May 1787, to write down upon parchment for the first time a scheme of government for the preservation and evolution of liberty, had the most overwhelming task ever placed before a group of men since the morning stars sang together, and, judged by the work they wrought, were the greatest and wisest assembly of men that ever surrounded the council tables of any nation in all the tide of time.

Their wisdom is patently illustrated by the obvious fact that these wise men seemed to know more then, even about so simple a matter as the proper time to convene the Congress, than we did after 150 years of experience. The so-called "lame duck" amendment lacked a single virtue or advantage, while its faults are legion-an amendment induced by the urge and itch to change the Constitution as often as possible in spite of the sage admonition of Washington concerning "the spirit of innovation."

In 1858 Abraham Lincoln, with characteristic lucidity, stated the problem that confronted these devoted patriots when he declared: "It has long been a grave question whether any government, not too strong for the liberties of the people, can be strong enough to maintain itself in a great emergency." "Through that long, hot, dusty summer of 1787 that devoted company of patriots struggled to find an answer to the grave question expressed long after by Abraham Lincoln in the gathering storm clouds that enveloped him in the years just prior to 1861. On September 17, when they were ready to sign the proposed Constitution, they had created a government which was to prove not too strong even to trample upon the rights of a slave with shackles on arms and ankles, yet strong enough to maintain itself in the face of the greatest emergency that ever confronted a republic in the history of the earth.

You have seen the milky way, that mysterious belt of light flung like a silver mantle across the shoulder of night. What is the milky way? Uncounted millions of stars larger and brighter than our sun, yet so far away that their light comes to us only in those broken and shattered fragments that leave that romantic trail of light out yonder on the far horizon of the universe. All that staggering vastness of the universe, in which our earth is but a speck of dust, is held together and in perfect harmony by two forces. One pulls toward the center, the other away from it. One is centripetal, the other centrifugal.

In government there are two corresponding forces. One pulls toward the center, the other away from it. One is centripetal and the other centrifugal. One tends toward order, the other toward chaos. One toward organization, the other toward disintegration. One toward despotism and the other toward anarchy.

The task of our fathers at Philadelphia was to devise a government in which the centripetal and the centrifugal forces would be so balanced that there could be neither despotism nor anarchy, balanced so nicely, like the stars and planets in the palm of the Almighty, by which we can predict for years in advance when there will be an

REPRESENTATIVE GUYER'S ADDRESS

735

eclipse of the sun or moon. The men who framed our Constitution were familiar with the history of the ages and their philosophies from Plato to Adam Smith, whose Wealth of Nations had just before reached America.

The stories of Babylon and Egypt, of Greece and Rome, were commonplace with them. The records of the past were searched for the dangers that would lurk in the path of a government for free men. But when these patriots had done all they could, when they had formed a plan of government with a written constitution, they had only the blueprints of a government-a skeleton without flesh and blood or the breath of life. Out of that noble plan must be evolved a government with arteries and veins, with flesh and blooda living government. And that is just what has happened in these 150 years. Along with the other departments of the government, our judicial system, with the Supreme Court as its head, developed and rendered this a government of laws and not of men. The Supreme Court that John Jay found on the first day of February 1790 was without form and void. It too, like the whole scheme of our government, must develop and evolve under the Constitution and ever according to the spirit and the letter of that Constitution.

The struggle of the Supreme Court to secure its integrity is one of the most intriguing romances of the political history of the United States. The Supreme Court, in the second decade of our national life, became the center of a raging tempest of party passion not exceeded in our history. At that time the President of the United States demanded that a judge should be expelled from the Court by request of the two Houses of Congress, impatient of the process of impeachment provided by a wise Constitution. This demand by the President was in wide contrast to President Jefferson's ringing statement concerning the formation of the Commonwealth of Virginia. In his "Notes on Virginia" he declared:

The concentrating of these (the executive, legislative, and judicial powers) in the same hand is precisely the definition of despotic government. An elective despotism was not the government we fought for; but one which should not only be founded on free principles but in which the powers of government should be so divided and balanced among the several bodies of magistrates, as that no one could transcend their legal limits without being effectually checked and restrained by the others. For this reason that convention which passed the ordinance of government laid the foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct so that no person should exercise the powers of more than one of them at a time.

That was a noble statement of the whole history of a free government, where no man would ever be permitted to trample on the rights

222964-40- 48