“Be it enacted by the Congress of the United States that the Mohammedan religion shall be the only lawful one in this nation. All persons whomsoever shall pray 3 times a day kneeling toward Mecca, and one billion dollars is hereby appropriated for the support of this religion and the enforcement of this law.”
Improbable and facetious, you say; and you are right. But if there were no constitutional prohibition, the Congress could legally enact such a law. The Constitution which is the supreme law of the land and therefore a higher law than the statutes passed by Congress provides that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
The acts of parliament are the supreme law of the land in England. Parliament could constitutionally enact and enforce such a statute, and in fact has enacted laws creating the Church of England, and providing for its support from the taxes of the people. The sovereign power in England resides in parliament, and all powers whether legislative, executive, or judicial may legally be exercised by that body. In fact the highest court in England is the House of Lords, and the kings’s powers are nominal and used only by consent of parliament.
In the United States the sovereignty has been retained by the people, and they have delegated to the Congress that portion which it may legally exercise. Freedom of worship remains with the people.
But suppose that the Congress in clear disregard of the limitations imposed upon it by the Constitution, did in fact enact such a law. Then who is to judge between the law of the Congress and the Constitution of the land? And which shall apply?
Parliament has on occasions passed laws extending its own life and putting off general elections. The present parliament has been in power for something like 10 years without an election. The Constitution provides that senators shall be elected for terms of 6 years and representatives for terms of 2 years. Suppose that Congress considered that because of war or other serious emergency a national election was not in the best interests of the nation and therefore enacted legislation extending its sessions to 10 years of 20, or 50 or for the life of its members. Then what? Or suppose that the Congress enacted legislation extending the length of the presidential term longer than 4 years. Who is to look out for the sovereign rights of the people and prevent their unauthorized usurpation?
It is the function of courts to determine what the law is and, when conflicts arise, to uphold that which is the supreme law in preference to any lesser law. This our courts do. It is their natural function, and so all of them, and the Supreme Court in particular, become guardians of the Constitution, because the Constitution is the supreme law of the land.
If our religious rights were infringed or our representatives extended their terms of office and such acts were then declared void by the courts, we would acclaim these judicial bodies as the saviors of our liberties.
But when the Congress steps outside of its delegation of authority and attempts social and economic reforms and experiments and these same courts determine that such laws conflict with the Constitution then the courts are condemned and maligned and people say that they are a hindrance to economic progress and industrial development. Or they say that the Constitution is outmoded and should be discarded. The multitudes seek the loaves and the fishes at the expense of their rights as free men.
Perhaps there are problems of an industrial life which should be regulated by congress and which Congress is now prevented from governing. But if there are and the sovereign people determine such to be the case, it is a simple matter for them to delegate more of their sovereignty to Congress so that such regulations may be put into effect.
Senator Ashurst once proposed an amendment to the Constitution providing that “The Congress shall have power to make laws to regulate agriculture, commerce, industry and labor.”
All of the New Deal measures would have been held constitutional under such a delegation of authority. This amendment would put the federal government in the position of being capable of regulating every detail of the economic life of every person in the nation. State and local governments would be reduced to mere nothingness. Centralization and its offspring bureaucracy would reign supreme.
The sovereign American citizens have so far not seen fit to delegate such omnipotence to their representatives. Until they do the Supreme Court will continue to protect and guarantee and uphold them in their constitutional rights.
which appeared on the editorial page (page 4) of
The Deseret News, 19 March 1945 through 10 April 1945.