Concerning JusticeEmery, Lucilius A. (Lucilius Alonzo)
Philosophy
Concerning Justice
Emery, Lucilius A. (Lucilius Alonzo)
Courts -- United States; Justice; Justice, Administration of
In 1825 that eminent jurist, Chief Justice Gibson of Pennsylvania, in
a dissenting opinion in _Eakin_ v. _Raub_, 12 _S. & R._ 330, insisted
in an able, elaborate, and exhaustive argument that while the
judiciary was bound to refuse effect to a state statute in conflict
with the Federal Constitution, it was bound to give it effect if
repugnant only to the state constitution. He frankly admitted the
logical conclusion that in such case the only remedy the citizen had
to enforce his constitutional rights was that of revolution. When,
however, his opinion in _Eakin_ v. _Raub_ was cited in 1845 in
argument in _Norris_ v. _Clymer_, 2 _Pa. St._ 277, he said he had
changed his opinion on that question, partly "from experience of
the necessity of the case." In the later case, _De Chastellux_ v.
_Fairchild_, 15 _Pa. St._ 18, he was emphatic in his declaration of
the power and duty of the court to refuse effect to a state statute in
conflict with the state constitution. In delivering the opinion of the
court he used this vigorous language: "It is idle to say the authority
of each branch (of the government) is defined and limited in the
constitution, if there be not an independent power able and willing to
enforce the limitations.... From its very position it is apparent that
the conservative power is lodged with the judiciary, which in the
exercise of its undoubted right is bound to meet every emergency."
The results of the contrary doctrine are well stated by the same court
in _Perkins_ v. _Philadelphia_, 156 _Pa. St._ 554. "If laws in
conflict with the constitution be passed by the legislature, approved
by the governor and sustained by the court, that is revolution. It is
no less revolution because accomplished without great violence. It
matters little to the house owner whether the structure built to
shelter him be blown up by dynamite, or the foundation be pried out
stone by stone with a crowbar. In either case he is houseless."
Public-domain text, read in full here on John Shaqi.
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