Mentions Fourteenth Amendment of U. S. Constitution.
Sec. 1. Art. XIV. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within the jurisdiction the equal protection of the laws.
Mr. Neal—Now, may it please your honor, we would prefer to have you reserve judgment, if the state will permit and the argument in connection with this question until the whole case, the evidence will be of enlightening character both to your honor and the jury and our intention, unless the state insists, was simply to read the indicment and then allow it to remain—
Mr. Darrow—Read the motion.
Mr. Neal—I mean read the motion and allow your honor to pass upon it later we think the whole evidence in the whole case will be enlightening, and I say particularly perhaps to your honor, and your honor will be in much better position to decide these issues after our whole case rather than hearing an argument this morning, no matter how elaborate.
The Court—What course do you want o pursue, Mr. Attorney-General?
Gen. Stewart—We want the matter disposed of at this time, yes, sir.
Mr. Neal—As I understand, we would have the right to make an explanatory statement and then the Attorney-General make his argument, and we to make the final argument?
Gen. Stewart—Yes, that is right.
The Court—Yes, you would have the right to open and close, take the affirmative of the argument and state your position.
Mr. Neal—The only thing we want to understand is we have the right to close the argument.
Mr. McKenzie—To open and close,
Mr. Neal—May it please your honor, I am simply going to run through and explain our attitude or view. One of my associate counsel will make the final argument.
The Court—Yes.
Mr. Neal—May it please your honor, it is useless for us to stress right at the beginning hour, that your honor has the power, not only power but the duty, to pass on the constitutional matters. A great deal of misunderstanding exists in regard to that matter. A great many people, I think a great many lawyers, seem to unconsciously have the understanding that the appelate courts have that power alone, to pass on the unconstitutionality of statutes; but I am sure your honor is not deceived in the matter. As was said in the great case of Meador vs. Madison, it is the very essence of judicial functions to determine what the law is, and to determine what the law is, necessarily requires the determination of it constitutionality. I am sure it is not necessary for us to pause to explain to your honor, that it is not only your power but your sworn duty to support the constitution of the United States and of the state of Tennessee.
The Court—It is not necessary to argue that point.
Mr. Neal—So, while I do not expect to read all the motion, it is a very brief explanation of our idea, appealing to that particular section of the constitution, naturally and logically the first objection we make to this statute, is to call attention to that well known provision of our constitution, at least well known to Tennessee lawyers, in regard to the caption and the substance of the bill.
I do not think I exaggerate, may it please your honor, when I say probably four-fifths of the law which the Tennessee supreme court has ultimately held unconstitutional, the constitutionality has been based upon this particular provision. They have praised it highly. They have not looked upon if as purely a technicality, but looked upon it as a matter which is very important, to hold the
