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In large degree the decisions of the Courts in the various cities are not based upon an ideal conception of law. They are based rather upon public emergencies as they are viewed by the majority of the Court. Law as interpreted today is very largely the reflection of the voice of the mob and not the expression of intelligent consideration.
The lives of men and women are covered by petty likes and dislikes, largely outside the realm of human reason. They are those likes and dislikes which appear from nowhere and are lost the next day in the exigencies of the morning. And yet these likes and dislikes are not based upon favoritism or prejudice but are rather the governing force of the individual brain power. Yet it is all law.
Everybody is so interfered with by impracticable legislation that a public psychology of antagonism to all law has been created. Many of these enactments are not only unworkable, but beyond the domain of law altogether.
This is due to a disease of the mind which has afflicted us as a people for several years—the idea that anything and everything can be done by passing a law.
But very few things can be accomplished by statute. None of
these. most important phases of life can be controlled or even influenced by man-made law.
A simple and well-known illustration is that the processes of nature cannot be changed by legislative acts. Neither can the human mind and soul be regimented by statute.
Take, for instance, the familiar and often used example of the Ten Commandments; some of them ought to be, can be, and have been placed on the statute books of every country under every form of government-killing, stealing, perjury.
But no human law can compel the individual to love God, honor parents, or purify the heart of covetousness. Not a line of Sermon on the Mount can be made effective by Congress or Legislature.
So we see that law has limitations, like everything else in the universe. When legislators go beyond those limitations, the result is confusion, futility and even defiance of those anti-legal statutes; and indifference or hostility to all law.
In this country no law can be enacted, congressional or legislative, which is not subject to judicial review. This means that the Courts of the land have the power, and it is their duty, to declare null and void any act created by law, which violates the constitution of the nation. This is the doctrine of judicial review. This doctrine was established first by the opinions of Chief Justice John Marshall. The following decisions have given him undying fame:
The first of these opinions was Marbury vs. Madison, in which he held that it is the power and the duty of the Court to strike down any act of Congress which violates the Constitution of the nation.
His second was Fletcher vs. Peck, in which he laid the foundation for the constitutional law that exists no place else on earth, that when a contract is made between individuals or even by a State, or a corporation, the sanctity of that contract is preserved by the basic law of the Republic.
It seems to us that in all of the law ennunciated by any Judge or Pope, nowhere can be found one which more perfectly protects the right of the individual than the decision of John Marshall in the case of Fletcher vs. Peck, to which reference has been made. No matter from what angle we study the situation we find generally more wrongs than there are rights. We find judgment intimidated by one or several poltroon politicians. We find legislatures and congressmen elected that are a disgrace to the electorate that sends them to execute the law. We find liberty and order laid upon, cut to pieces and illy applied. We find a tax made upon integrity and character and find no occasion for the abuse which is showered upon the party
that is unfortunately disgraced. We find impractical legislation that is a public psychology of antagonism to law and constitutional rights. It may be fairly stated that statutory interference with every relation of life creates not only in the mind of the party affected, but in the mind of all opposition to all organized society.
Greek philosophers dreamt and thought of a golden age when the world would not be controlled by force. Coming down to 1918 an attempt was made to create an impression that this world from that time on would be controlled by law. Both the philosophers of olden time and the so-called Pacifists of the present decade had no heart in their conception.
All life is controlled by law of some kind. The original of the specie is based on an organic law. The growth from the inception of the child until a descent to the grave is covered not by accident but by law, and these laws are immutable, unchangeable and fixed. There is no developing growth of them which alters in any respect those rules of nature which as human beings we have come to consider as a part and parcel of our existence and good governorship.
Growing out of the law of this land, in fact the law of all lands, referring back to the origin and philosophy, the development of those doctrines which the world at large either today enjoys or will enjoy in the future, is first and foremost the American contribution to jurisprudence. What does this mean? For what purpose is it utilized? In England, an act of Parliament supersedes, over-rides and governs. The right of the individual is nothing. It cannot be confounded or considered with the inalienable right of person. Domestic matters in England today are in a bad way. Outside of half a dozen statesmen of high class, they rank in common with Russia, France and perhaps Germany, which countries register at will passion, prejudice or whim in an act of Parliament or a statute authorizing legislative acts which may over-throw or destroy the security of individual rights, the safety of persons, the protection of property, the sanction of the minority.
When the United States Supreme Court hands down a decision by a fiveto-four majority the scales of justice may well be said to hang by a hair. Such was the situation last December when the court of last resort upheld the provision of the Volstead Act which limits the amount of whiskey that physicians may prescribe to one pint every ten days. Paradoxically enough, this decision was written by Justice Louis Dembitz Brandeis, who often dissents from decisions restricting individual "liberty."
The Supreme Court's ruling put an end to a suit begun in 1922 in the lower Federal courts by Samuel W. Lambert, learned physician of Manhattan, who sought to enjoin the Prohibition Unit from enforcing the provision concerning whiskey prescriptions. Justice Brandeis' opinion was upheld by Chief Justice Taft and associate Justices Holmes, Sanford, Van Devanter.
It may be a coincidence, and it may be prophetic of the future that three of the four dissenting justices (Sutherland, Butler, Stone) have been appointed to the Supreme Court since the enactment of the Federal Prohibition laws.
The majority of metropolitan newspapers, Democratic and Republican alike, denounced this decision in no mild accents.
Will the Supreme Court's decision on medicinal alcohol prove to be the Dred Scott case of prohibition?
It might well be. Certainly no conscientious physician in charge of a serious case will waive his judgment of the need of his patient because of the dictate of a legislature or the opinion of a bench of judges.
The Law In Rhyme
By M. S. Loeb of the Chicago Bar
There are rights and rights, but not legal all,
One which the law will enforce and protect.
Now let us see how we can detect
The nature and kind of a legal right,
So you may know in case of a fight.
Two principal classes of rights there are:
First and weightiest of them by far
Are the "rights in rem", they are held against all,
The fat, the thin, the short, the tall,
The whole community must give them heed,
Such are your right in a thing possessed,
The right to be safe and with freedom blessed.
Against certain persons alone can be
Enforced. "In personam" they're termed
And by agreement mostly confirmed.
Like the right I have to require of you
What by contract with me you've agreed to do.