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 The Courts and Social Questions

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A law is not justified by the mere fact tive and judicial powers must be kept that it is the will of the majority, unless distinct was one of the fundamental poli it is also such as to do injustice to none. tical doctrines of the time and there was There will be the greater need for judicial no thought of usurping the functions of review if the movement for direct legis the legislature. It is the duty of the courts, however, lation should prevail. In such legisla tion the purpose of attaining the princi to declare the law judicially in suits be pal object overrides considerations of tween parties, and the Constitution, injustice in the details, and there will be whether expressly made so or not, is the the greater value in the restraining supreme law of the land. The inevit able result is that the courts have the power of the courts. It is because of the great value of this power, not merely to interpret the stat power of our judiciary that the true utes, but also to declare that they have position of the courts in our system of not the effect of law, and so it has come government should not be misunderstood, about that the courts have in effect a and that the confidence of our people veto power over legislation if in their in the judiciary should not be impaired judgment it is contrary to the Consti through fear of undue exercise of power. tution of the state or the United States. The power of the courts to declare acts It was Mr. Justice Holmes that quoted of the legislature invalid was not given to Prof. John C. Gray what Professor to them in express terms, nor is it in Bradley calls the sagacious remark of herent in the fact that the Constitution Bishop Hoadley, made nearly two cen is written. There are nations having turies ago: "Nay, who ever hath an ab written constitutions in which such solute authority to interpret any written power is not recognized. That there or spoken laws, it is he who is truly the was such a power was not understood lawgiver to all intents and purposes, when our first state constitutions were and not the person who first wrote or adopted, and the case in which it was spoke them."* This was said long before first declared was Holmes v. Walton, in there was any question of the relation New Jersey, in 1780. The power of the between the laws and the Constitution. courts, though strongly asserted before, The difficulty is inherent in all judicial was not generally recognized until after power in the application of statutory the logic of it had been formulated by law and the difference is only one of de Chief Justice Marshall. The exercise of gree. The remedy lies in the attitude the power, as Prof. James Bradley of the courts towards the power of the Thayer pointed out, in his Essay on Con legislature, and we have assurance in the stitutional Law,* grew out of the fact history of judicial decision in this coun that in our colonies acts of the legisla try that our courts fully appreciate the ture under written charters were sub peculiar responsibility that is thrown ject to judicial review by the Privy upon them in the exercise of judicial Council, and this power of judicial re functions, when not merely the interpre view was naturally assumed by our own tation, but also the validity of acts of the courts when they came to deal with legislature is to be determined by them. statutes not in accord with the new They fully understand the truth of fundamemtal laws. That the legisla what was said by Chancellor Waties of •"Legal Essays." By James Bradley Thayer, pp. 1-4.

• Harvard Law Rev. p. 33. Mayer's Legal Essays p. 33.