The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
These proceedings awakened great feeling in Ohio, and became the
subject of much criticism throughout the country by those
adhering to the Democratic party. The legislature of Ohio
adopted resolutions denouncing them as unauthorized by the
Constitution of the United States, and directed the Governor to
forward a copy to the legislature of every other State with a
request for its opinion on the subject. The replies varied in
tone according to the political predilections of the party then
in control of the State addressed.
Still closer does a court come to collision with the political
sovereignty of the State when it commands a public officer to do
something in violation of a statute which it pronounces void, or
not to do something which such a statute requires. A striking
instance of this is furnished by the power to nullify legislative
gerrymanders. The Constitutions of almost every State provide
that it shall be districted from time to time by the legislature
for the purpose of electing certain officers or local
representatives, and that this shall be so done as to make the
districts as nearly equal in population as conveniently may be,
and composed of contiguous territory. If a legislature
undertakes to construct districts by any other rule, the courts
can compel those charged with the conduct of elections to
disregard it and to hold them according to the districts
previously established under the former law.[Footnote: State
_v._ Cunningham, 83 Wis., 90; 53 Northwestern Reporter, 35;
17 Lawyers' Reports Annotated, 145; 35 American State Reports,
29; Board of Supervisors _v._ Blacker, 92 Michigan Reports,
638; 52 Northwestern Reporter, 951; 16 Lawyers' Reports
Annotated, 432 Brooks _v._ State 152 Indiana Reports; 70
Northeastern Reporter, 980.] But however necessary may be the
conclusion from the premises, it can hardly be agreeable to the
authors of a law which it serves to destroy. In effect, though
not in theory, it subordinates one department of government to
another. The practical result is to give the judiciary a
superior power to the legislature in determining what laws the
latter can enact. It is not a right of veto, but in a case which
calls for its exercise it is an equal right exercised in a
different way.
In the first instance of a resort to it[Footnote: See p. 100.]
the section of the New Jersey Constitution of 1776 confirming the
right of trial by jury was held by the full bench of the Supreme
Court to render a statute void which authorized a trial without
appeal before a jury of six, on a proceeding for the forfeiture
of goods brought in from British territory or the British
military lines. This was an unwelcome decision to many who were
interested in such seizures, and they sent in several petitions
to the legislature for redress. No action criticising the
judges, however, was taken by that body.
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.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account