Concerning JusticeEmery, Lucilius A. (Lucilius Alonzo)
Philosophy
Concerning Justice
Emery, Lucilius A. (Lucilius Alonzo)
Courts -- United States; Justice; Justice, Administration of
The principal argument for lessening the independence of the judges
and making them more subservient to the inconstant majority seems to
be that otherwise the judges will misuse their power and impede the
operation of statutes they do not themselves approve of. The argument
has little or no foundation in fact. Perhaps among the hundreds, if
not thousands, of cases of holding a statute unconstitutional a few
may seem to have been so decided because the judges thought them
unwise and oppressive. Some expressions in judicial opinions have been
unfortunate in that respect, but the courts everywhere in this
country, now if not at first, disclaim any such power. The same Chief
Justice Marshall, who had so convincingly stated the duty of the
judiciary to refuse effect to unconstitutional statutes, later in
_McCulloch_ v. _Maryland_, 4 _Wheat._ 316, disclaimed for the courts
all pretensions to any power to inquire into the necessity of any
statute, or in any way to interfere with the discretion of the
legislature. In strong and explicit language other courts have
disclaimed such pretensions. The Minnesota court in _State_ v.
_Corbett_, 57 _Minn._ 345, held that courts were not at liberty to
declare a statute unconstitutional because it is thought by them to be
unjust or oppressive, or to violate some natural, social, or political
right of the citizen, unless it can be shown that such injustice is
prohibited, or such rights protected, by the constitution. The
Pennsylvania court in _Com._ v. _Moir_, 199 _Pa. St._ 534, used this
language: "Much of the argument and nearly all the specific objections
advanced are to the wisdom and propriety and to the justice of the
statute and the motives supposed to have inspired its passage. With
these we have nothing to do. They are beyond our province and are
considerations to be adduced solely to the legislature." The court of
West Virginia in _Slack_ v. _Jacob_, 8 _W. Va._ 612, said: "That the
judges are convinced that a statute is contrary to natural right,
absolute justice, or sound morality does not authorize them to refuse
it effect." The court of Washington in _Fishing Co._ v. _George_, 28
_Wash._ 200, held that "a statute cannot be ignored by the courts
because leading in its application to absurd, incongruous, or
mischievous results." A few cases may also be cited showing how
relentlessly this disclaimer is applied. The court of New York in
_Kittinger_ v. _Buffalo Traction Co._, 160 _N. Y._ 377, held that the
courts had no power to inquire into the motives inducing legislation
and could not impute to the legislature any other than public motives.
The Pennsylvania court in _Sunbury R.R. Co._ v. _People_, 33 _Pa. St._
278, had urged upon it the argument that the statute in question had
been "passed in fraud of the rights of the people." The court held
that, if true, that fact would not authorize it to refuse it effect.
The Tennessee court in _Lynn_ v. _Polk_, 76 _Tenn. St._ 121, was asked
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account