Concerning JusticeEmery, Lucilius A. (Lucilius Alonzo)
Philosophy
Concerning Justice
Emery, Lucilius A. (Lucilius Alonzo)
Courts -- United States; Justice; Justice, Administration of
But the complaints against the courts are not all because of their
holding statutes unconstitutional. Many have felt that courts
sometimes erred in having too much respect for the legislative power
and because of that respect have allowed constitutional rights and
liberties to be sacrificed at the behest of majorities and often at
the behest of active, interested minorities more insistent than the
inert majority. The decision of the United States Supreme Court in the
_Charles River Bridge_ case, 11 _Peters_ 420, was mourned by such men
as Webster, Kent, Story, and others as breaking down the safeguards of
the constitution. The decision in the _Slaughter House_ cases was
regarded by many able jurists as ignoring that provision of the XIVth
amendment to the Federal Constitution forbidding any denial to any one
of the equal protection of the laws. The _Elevator_ cases, holding
that elevators were public utilities and therefore subject to public
control as to charges for service, though the owners had no special
franchise, no part of public power, are even now thought to have made
a wide breach in the constitutional barriers against the invasion of
private rights. The decision in the _Chinese Deportation_ cases, 149
U. S. 698, shocked the sense of justice of many. It was to the effect
that Congress could empower the executive to arrest upon its own
warrant any person it claimed to be an alien unlawfully residing in
the United States and to deport him without trial, unless he could
affirmatively prove to the satisfaction of a single judge (to be
selected by the executive), and by a specified kind of evidence only,
that he was not guilty, however ample and probative other evidence
might be adduced and however impossible to produce the specified
evidence. Justices Fuller, Field, and Brewer vigorously dissented on
the ground that such action by the executive, though under the
authority of Congress, was in violation of the constitutional
guaranties against arrest without judicial warrant, against
deprivation of liberty without trial by jury and due process of law.
Justice Brewer after quoting Madison, that banishment is among the
severest of punishments, went on to say: "But punishment implies a
trial. 'No person shall be deprived of life, liberty or property
without due process of law.' Due process of law requires that a man
be heard before he is condemned, and both heard and condemned in the
due and orderly procedure as recognized by the common law from time
immemorial."
Public-domain text, read in full here on John Shaqi.
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