Page:The Green Bag (1889–1914), Volume 20.pdf/594

 UNCONSTITUTIONAL LAWS

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IS IT USURPATION TO HOLD AS VOID UNCONSTITUTIONAL LAWS? BY WILLIAM G. HASTINGS. A PPARENTLY from a desire to dis•* ^- credit the Federal Supreme Court and diminish its influence there have been many recent denials of its original authority to hold an act of Congress void, as being un constitutional. Of course the same 'ques tion has at some time arisen in each state, unless, as most of them have not, it has unequivocally conferred such powers on its Supreme Court. Ever since constitution making and construing began on this side of the Atlantic it has invariably been solved as Marshall solved it. Probably nearly everyone supposed the question was put to rest long ago and that Professor Thayer's paper before the Chicago Congress of Jurisprudence in 1893, published in the Harvard Law Review (Vol. vii, p. 129), had said the final word on that subject. The Chief Justice of North Carolina, how ever, in the Independent for September 26th last, in a signed article declares that -it is a flat usurpation, though now perhaps so firmly established as to be irremovable. The dean of the law school of Dickinson College, Pennsylvania, in the North Ameri can Review for the i6th of the same month, more cautiously pronounced the intention to grant such a power as doubtful, and proceeded to give a number of grounds which convince him that no such power was meant to be given. When a governor of a Western state a few years ago declared that the power of the Federal Supreme Court to overturn an Act of Congress was a mere usurpation of John Marshall's without warrant or even countenance in the Constitution, it merely caused a ripple of amused comment as an ebullition of personal eccentricity. The utterances above mentioned are by accred ited professional and official expounders of

the law. They have been widely circu lated and commented upon by the public press. A still more notable, perhaps, though different one, was President E. J. James's address at Jamestown as represen tative of this state, and its university, on Illinois Day. He did not hesitate to declare the whole mass of judicial interpretation of the Federal Constitution since Marbury v. Madison was decided in 1803 to be artificial in character and dictated by the necessi ties of the Federal Government. He de clared that it had distorted the Constitu tion beyond recognition by its makers; and that to preserve respect for law and the courts such interpretation must stop. He thought that with the present instru ment, stopping the process of modification would be suicidal and that the only alter native is a new one. This official declara tion by a representative. of a great state on an important public occasion, with the others, indicates that the relation of the Supreme Court to Congress and the people is, at this time, a matter of live public interest. Dean Trickett and Judge Clark have suggested laying the axe to the root of all our constitutional interpretation by deny ing any such function to the court, or rather by asserting that it was never really bestowed. They each, however, admit that the uniform practice and decisions of the entire country are, and always have been, against them. Their discussion would be entirely academic were it not that the most important question as to any decision of the courts is always, Has it been ratified and submitted to by public opinion and the parties concerned? If decisions are to be of value they must have that kind of an imprimatur as well as the official one.