Page:The Green Bag (1889–1914), Volume 20.pdf/596

 UNCONSTITUTIONAL LAWS some particularly disliked decision. Both 'assumptions ignore the real question of fact: Were these constitutional provisions intended as mere political rules or as laws to guide the courts? The recent objections take the new line, an entirely legitimate one, of seeking to show, as a matter of fact, by contemporary and subsequent utterances and acts of the Federal Convention and its members that it could not have been the intention of the framers and adopters of the Federal Consti tution to give the Supreme Court any such power. If this can be done the ground has gone from under Hamilton, Marshall, and Gibson, all three, and their whole discussion left in the air. If Professor Trickett and Judge Clark can show clearly as a historical fact that the intention to give this power was not in the general public mind, even if some persons did entertain it, there is enough uncertainty in the words of the Constitution so that the "parole evidence" of the surrounding circumstances and. of contemporary inter pretation should be taken. The clause of the Constitution given above is not very explicit as to anything but power over state legislation. If circumstances enough to conclusively show that the in tention was only to give power over state legislation can be brought forward, it should be done even after the one hundred and four years since Marshall's decision. Judge Gibson said in 1827 in his dissenting opinion in Eakin v. Raub, above cited, that if he could overcome Marshall's argument he should rest content in the belief that no one could make a stronger one. Prob ably Judge Clark and Professor Trickett would neither of them claim that they have exhausted their side of the contention, but both may be assumed to have put forth their strongest facts. If there is, in truth, nothing stronger to be urged against the court's continuing to hold laws to be void when they are unconstitutional than they have brought forward, it is thought that

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Marshall's interpretation is by no means overthrown. The question to be considered from this purely historical standpoint is simply: Did the proposers and adopters of the Consti tution and their constituents who put it in practice intend that the Supreme Court in passing upon questions of private right should treat it as a body of paramount law so far as it concerned such questions and congressional legislation affecting them, or should treat it as a body of political rules whose conflict or harmony with congres sional acts would in no way concern the court. It is doubtful if either Judge Clark or Professor Trickett will venture to assert the second alternative, but in this instance it seems that one or the other must be taken. They are attacking a hundred -year long interpretation on the ground that it is clearly wrong. It is for them to leave it at rest, unless they can show that the Con stitution was not meant for "law" to con trol judicial action, but as rules for political guidance. That the great indirect political effect of legal use of the Constitution was not fully realized then, and frequently is not even now, need not be denied. That some, who best understood it said little about it, may be granted; but the proofs offered by its assailants are far from showing that the legal power itself was not intended to be given. Judge Clark's proofs may be first con sidered. Aside from his bitter complaint as to practical results they are two, the four times voting down of the proposition to associate the judiciary with the execu tive in the veto power, and the extent to which the court is left dependent for its actual power upon Congressional legislation. He says that not a line of the Constitution can be cited for the power which the court exercises of holding laws to be unconstitu tional, and that the four votes- upon the veto propositions were all refusals to confer it.