The Spirit of American Government: A Study Of The Constitution: Its Origin, Influence And; Relation To DemocracySmith, J. Allen (James Allen)
History
The Spirit of American Government: A Study Of The Constitution: Its Origin, Influence And; Relation To Democracy
Smith, J. Allen (James Allen)
Constitutional history -- United States; United States -- Politics and government
Conservative writers while giving unstinted praise to this feature of
the Constitution have not explained its real significance. They have
assumed, and expect us to take it for granted, that the Federal
judiciary was designed as a means of making the will of the people
supreme; that its independence and exalted prerogatives were necessary
to enable it to protect the people against usurpation and oppression at
the hands of the legislative branch of the government.
Hamilton tells us, "The standard of good behavior for the continuance in
office of the judicial magistracy, is certainly one of the most valuable
of the modern improvements in the practice of government. In a monarchy,
it is an excellent barrier to the despotism of the prince; in a
republic, it is a no less excellent barrier to the encroachments and
oppressions of the representative body....
"The complete independence of the courts of justice is peculiarly
essential in a limited constitution. By a limited constitution, I
understand one which contains certain specified exceptions to the
legislative authority.... Limitations of this kind can be preserved in
practice no other way than through the medium of the courts of justice,
whose duty it must be to declare all acts contrary to the manifest tenor
of the Constitution void....[58]
"Some perplexity respecting the rights of the courts to pronounce
legislative acts void, because contrary to the Constitution, has arisen
from an imagination that the doctrine would imply a superiority of the
judiciary to the legislative power. It is urged that the authority which
can declare the acts of another void, must necessarily be superior to
the one whose acts may be declared void....
"There is no position which depends on clearer principles, than that
every act of a delegated authority, contrary to the tenor of the
commission under which it is exercised, is void. No legislative act,
therefore, contrary to the Constitution, can be valid. To deny this
would be to affirm that the deputy is greater than his principal; that
the servant is above his master; that the representatives of the people
are superior to the people themselves; that men, acting by virtue of
powers, may do not only what their powers do not authorize, but what
they forbid.
Public-domain text, read in full here on John Shaqi.
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