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
The case of Trevett v. Weeden, decided by the Superior Court of
Judicature of Rhode Island in September, 1786, is said to be the first
in which a law was declared null and void on the ground that it was
unconstitutional.[66] The court in this case did not expressly say that
the law in question was unconstitutional and therefore void, but it
refused to recognize its validity. The power which the court exercised
to ignore a legislative act was promptly repudiated by the law-making
body, and at the expiration of their term of office a few months later,
the judges responsible for this decision were replaced by others. In
1786 or 1787 a case was decided in Massachusetts, and also one in New
Jersey, in which it is claimed that the court declared a legislative act
null and void.
The first reported case in which an act of a legislature was held to be
contrary to a _written_ constitution is that of Bayard v. Singleton,
decided by the Superior Court of North Carolina in May, 1787. James
Iredell, afterward a member of the North Carolina convention, held to
ratify the Constitution, and a judge of the United States Supreme Court,
and William R. Davie, one of the framers of the Constitution, were
attorneys for the plaintiff, the party in whose interest the law was
declared unconstitutional. This decision received much adverse criticism
at the time. The judges "were fiercely denounced as usurpers of power.
Spaight, afterwards governor, voiced a common notion when he declared
that 'the state was subject to the three individuals, who united in
their own persons the legislative and judicial power, which no monarch
in England enjoys, which would be more despotic than the Roman
triumvirate and equally insufferable.'"[67]
Iredell, in a letter to Spaight written August 26, 1787, defended the
decision as a means of limiting the power of the majority. "I conceive
the remedy of a new election," he says, "to be of very little
consequence, because this would only secure the views of a
majority...."[68] Iredell expressed what was no doubt the real purpose
of the judicial veto--the limitation of the power of the majority.
In eight of the thirteen states the doctrine that the judiciary could
refuse to enforce laws regularly enacted by the legislative body had not
even been asserted by the courts themselves, much less recognized and
accepted by the people generally. There is no evidence to warrant the
belief that this power was anywhere claimed or exercised in response to
a popular demand or that it had at this time become a firmly established
or generally recognized feature of any state government.
This being the case, there is no ground for the contention that the
power to annul acts of the legislature was necessarily implied in the
general grant of judicial authority contained in the Constitution.
Moreover, it was not expressly conferred, for the Constitution as
submitted and ratified contains no reference to this power.
Public-domain text, read in full here on John Shaqi.
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