John Marshall and the Constitution, a Chronicle of the Supreme CourtCorwin, Edward Samuel
History
John Marshall and the Constitution, a Chronicle of the Supreme Court
Corwin, Edward Samuel
Constitutional history -- United States; Marshall, John, 1755-1835; United States. Supreme Court
In his message of December 8, 1801, Jefferson gave the signal for the
repeal of the obnoxious measure, and a month later Breckinridge of
Kentucky introduced the necessary resolution in the Senate. In the
prolonged debate which followed, the Republicans in both Senate and
House rang the changes on Taylor's argument. The Federalists made a
twofold answer. Some, accepting the Republican premise that the fate of
the judge was necessarily involved with that of the court, denied in
toto the validity of repeal. Gouverneur Morris, for instance, said: "You
shall not take the man from the office but you may take the office from
the man; you may not drown him, but you may sink his boat under him....
Is this not absurd?" Other Federalists, however, were ready to admit
that courts of statutory origin could be abolished by statute but added
that the operation of Congress's power in this connection was limited by
the plain requirement of the Constitution that judges of the United
States should hold office during good behavior. Hence, though a valid
repeal of the Act in question would take from the judges the powers
which they derived from its provisions, the repeal would still leave
them judges of the United States until they died, resigned, or were
legally removed in consequence of impeachment. The Federalist orators in
general contended that the spirit of the Constitution confirmed its
letter, and that its intention was clear that the national judges should
pass finally upon the constitutionality of acts of Congress and should
therefore be as secure as possible from legislative molestation.
The repeal of this Act was voted by a strict party majority and was
reënforced by a provision postponing the next session of the Supreme
Court until the following February. The Republican leaders evidently
hoped that by that time all disposition to test the validity of the
Repealing Act in the Court would have passed. But by this very
precaution they implied a recognition of the doctrine of judicial review
and the whole trend of the debate abundantly confirmed this implication.
Breckinridge, Randolph, and Giles, it is true, scouted the claim made
for the courts as "unheard-of doctrine," and as "mockery of the high
powers of legislation"; but the rank and file of their followers, with
the excesses of the French Revolution a recent memory and a
"consolidated government" a recent fear, were not to be seduced from
what they clearly regarded as established doctrine. Moreover, when it
came to legislation concerning the Supreme Court, the majority of the
Republicans again displayed genuine moderation, for, thrusting aside an
obvious temptation to swamp that tribunal with additional judges of
their own creed, they merely restored it to its original size under the
Act of 1789.
Public-domain text, read in full here on John Shaqi.
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