It will require a Constitutional amendment to drive the usurpers from the high place in which they are entrenched, but such an amendment cannot possibly be passed through the Upper House of Congress and through the Upper Houses of three-fourths of the states until a tremendous revolution shall have taken place in public sentiment.
If we should attempt to curtail the powers of the Federal Judges by Constitutional amendment we should surely find “Jordan a hard road to travel.” Most of us would be dead and forgotten before the purpose could be reached by that route.
What, then, can be done?
The swiftest remedy for the evil lies in the election of a President who will assert his Executive Authority.
The very essence of our system of government is the Balance of Power. The Legislative function should not encroach upon the Judicial; the Executive should not invade the Legislative, and the Judicial should not usurp prerogatives belonging to the other two.
Inherent in each of these three departments of government lies the power of self-defense.
Just as the Government, as a whole, has the inherent, inalienable right of self-preservation against external or internal attack, so each of the three separate departments of the Government has the inherent right of self-preservation as against an attack from either one or both of the other two.
When John Marshall made the attempt to encroach upon the Executive, during the administration of Mr. Jefferson, the President treated the Court with contempt, and the Court was powerless to go forward. When the same partisan Judge made a decision against the state of Georgia, which President Andrew Jackson considered unjust, the Executive refused to support the Judiciary, and the decision came to naught.
When Chief-Justice Taney, during President Lincoln’s administration, encroached, as the President thought, upon the Executive, the Judiciary again came to grief.
Had Mr. Cleveland been at heart in favor of the Income tax of 1893, the Supreme Court would never have dared to pronounce against it.