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
"There is no provision in the Constitution of the United States ...
which clothes the judiciary with the power to declare an act of the
legislature generally null and void on account of its conceived
repugnance to the Constitution or on any other account."[69]
It has been claimed that in this respect our general government is even
less democratic than the framers of the Constitution intended. This
view, however, is not borne out by the facts. The assertion of this
far-reaching power by our national judiciary, though not expressly
authorized by the Constitution, was nevertheless in harmony with the
general spirit and intention of its framers. That the members of the
Constitutional Convention declined to confer this power in unequivocal
language does not justify the inference that they did not wish and
intend that it should be exercised by the courts.
Gouverneur Morris, who claims to have written the Constitution with his
own hand, tells us that in framing that part of it relating to the
judiciary, "it became necessary to select phrases," which, expressing
his own views, "would not alarm others."[70] There was, it is true, some
objection in the Convention to the doctrine that the Supreme Court
should have authority to decide upon the constitutionality of
Congressional legislation. Mercer and Dickinson believed that this power
should not be exercised by the judiciary.[71] But it was contended on
the other hand by Wilson, Luther Martin, Gerry, Mason, and Madison that
this power could be exercised without any provision expressly conferring
it.[72]
In view of the fact that it was maintained by leading members of the
Convention that this power could and should be exercised by the Federal
judiciary, it is but reasonable to suppose that a majority of that body
wished to confer it; for had this not been the case, the Constitution as
submitted would have contained a provision expressly withholding it. But
however much the Convention may have desired to give to the judiciary
the power to veto legislation, it could not have been done by an express
provision of the Constitution. Any such attempt would have disclosed
altogether too clearly the undemocratic reactionary character of the
proposed government and thus have prevented its adoption. This end was
attained indirectly through the general system of checks which the
Constitution imposed upon the other branches of the government and upon
the people, since it made it possible for the judiciary to assume and
exercise this power.
Public-domain text, read in full here on John Shaqi.
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