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
The Legislatures of the aggrieved States were soon in full hue and cry
at the heels of the Court; and from them the agitation quickly spread to
Congress. ¹ On December 12, 1821, Senator Johnson of Kentucky proposed
an amendment to the Constitution which was intended to substitute the
Senate for the Supreme Court in all constitutional cases. In his
elaborate speech in support of his proposition, Johnson criticized at
length the various decisions of the Court but especially those grounded
on its interpretation of the "obligation of contracts" clause. More than
that, however, he denied in toto the rights of the Federal Courts to
pass upon the constitutionality either of acts of Congress or of state
legislative measures. So long as judges were confined to the field of
jurisprudence, the principles of which were established and immutable,
judicial independence was all very well, said Johnson, but "the science
of politics was still in its infancy"; and in a republican system of
government its development should be entrusted to those organs which
were responsible to the people. Judges were of no better clay than other
folk. "Why, then," he asked, "should they be considered any more
infallible, or their decisions any less subject to investigation and
revision?" Furthermore, "courts, like cities, and villages, or like
legislative bodies, will sometimes have their leaders; and it may happen
that a single individual will be the prime cause of a decision to
overturn the deliberate act of a whole State or of the United States;
yet we are admonished to receive their opinions as the ancients did the
responses of the Delphic oracle, or the Jews, with more propriety, the
communications from Heaven delivered by Urim and Thummim to the High
Priest of God's chosen people."
¹ For a good review of the contemporary agitation aroused by Marshall's
decisions, see two articles by Charles Warren in the American Law
Review, vol. XLVII, pp. 1 and 161.
Public-domain text, read in full here on John Shaqi.
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