Page:The Green Bag (1889–1914), Volume 25.pdf/236

This page needs to be proofread.

The Supreme Court and its Slanderers


tution. This is a principle that springs from court upheld this act of Virginia, con fiscating the debt, the court sustained the very nature of society; and the judicial authority can have no right to question the the plaintiff's right to recover on the validity of a law, unless such a jurisdiction is ground that the treaty of 1783 restored expressly given by the Constitution. the debt, and hence no argument or decision was made or had on the point In that argument, so often miscon as to whether the Constitution empow strued, it is expressly admitted that ered a court to declare an act of Con the courts have power to question the gress void. The opinion of the judges validity of a legislative act, when the in that case shows clearly that it was Constitution so provides. In plain generally conceded, at that time, that language he upheld the same principle the courts had the power to declare in Marbury v. Madison. Even in that legislative acts void when in conflict celebrated case no argument appears with the constitution. in opposition to the existence of such a In the case of Cooper v. Tellfair, de power in the courts. From the adop cided in 1800, Mr. Justice Chase ex tion of the Constitution down to the pressly states that it had been admitted time of the decision in this case, it seems by all the bar of the Supreme Court, to have been the unanimous opinion and had been decided by the justices of the Bench, the Bar and the People at the Circuit, that the Supreme Court that the latter, by express language in had power to declare an act of Con the Constitution, had imposed this duty gress to be unconstitutional and void. upon the courts. In truth, as before All of the above occurred before the stated, the great Chief Justice so held. decision of the Court in Marbury v. After assigning his reasons supporting Madison, which was in 1803. From the his view that an act of the legislature in beginning up to this decision, the ques direct conflict with the Constitution tion had been before the court, and not must yield, as the act of the creator, the a judge entertained a doubt on the people must be superior to the act of point, and, another thing which is a the legislature, the creature, he said: strong circumstance, there does not "Thus the particular phraseology of the seem to have been a single argument Constitution of the United States con made before the bar of the court at firms and strengthens the principle sup any time against the existence of such posed to be essential to all written con a power. In making that statement, stitutions that a law, repugnant to the the argument of John Marshall in Ware Constitution is void; and that courts, v. Hylton is not overlooked. As before as well as other departments, are bound stated, that case did not turn on any by that instrument." Though that decision for political question of conflict between the Con stitution and an Act of Congress. In reasons was criticised by the great arguing that Virginia had the power to Jefferson and his party, no amendment was proposed then or since to take this confiscate the debt and was not re trained in so doing by any law in existence judicial power from the courts, and vest in 1777 and that the power to suspend it in Congress. Therefore the people a debt included the power to confiscate prefer that it remain where they lodged it. But the amazing assertion is made it, he said : The legislative authority of any country can that "Chief Justice" Gibson of Penn sylvania, although he was not, at the only be restrained by its own municipal consti