The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
The last official attack upon it was made in 1831, at the time
when the feeling against protective tariffs was strong in the
South, and South Carolina was known to be meditating opposition
to their enforcement. The judiciary committee of the House of
Representatives reported a bill to repeal the section of the
Judiciary Act which gave the Supreme Court of the United States
the right to reverse judgments of State courts that it might deem
contrary to the Constitution of the United States. The report
said that such a grant was unwarranted by the Constitution and "a
much greater outrage upon the fundamental principles of
theoretical and practical liberty as established here than the
odious writ of _quo warranto_ as it was used in England by a
tyrannical king to destroy the right of corporations." The
House, however, rejected the bill by a very large majority.
A proper regard for the coordination of the departments of
government forbids courts to declare that a statute is
inconsistent with the Constitution unless the inconsistency is
plain. It has been judicially asserted that it must be plain
beyond a reasonable doubt, thus applying a rule of evidence which
governs the disposition of a criminal cause. As judgments
declaring a statute inconsistent are often rendered by a divided
court, this position seems practically untenable. The majority
must concede that there is a reasonable doubt whether the statute
may not be consistent with the Constitution, since some of their
associates either must have such a doubt, or go further and hold
that there is no inconsistency between the two documents.
This right of a court to set itself up against a legislature, and
of a court of one sovereign to set itself up against the
legislature of another sovereign, is something which no other
country in the world would tolerate. It rests on solid reason,
but as the Due de Noailles has said, "Un semblable raisonnement
ne ferait pas fortune aupres des republicans d'Europe, fort
chatouilleux sur le chapitre de la puissance legislative. C'est
que la notion de l'Etat differe d'une facon essentielle sur les
deux rives de l'Atlantique."[Footnote: Cent Ans de Republique aux
Etats-Unis, II, 145.]
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