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
This purpose is evident in the appointments to the Supreme bench made
during the twelve years of Federalist rule that followed the adoption of
the Constitution. Of the thirteen chief and associate Justices appointed
during this period, five had been members of the Constitutional
Convention.[79] Eleven had been members of the various state
conventions held to ratify the Constitution.[80] Three, as shown by the
records of the federal and state conventions, had unequivocally
expressed themselves in favor of the exercise of this power by the
Supreme Court,[81] while another, James Iredell, had taken an active
part in securing the first reported decision in which an act of a state
legislature was declared null and void by a court on the ground that it
was contrary to a written constitution.[82] Only one in this entire list
had not taken part directly in framing or adopting the Constitution by
serving as a delegate to the federal, or a state convention, or
both.[83] All had been ardent supporters of the Constitution and were in
full sympathy with its main purpose.
It is true that Washington in the winter of 1795-6 offered the Chief
Justiceship of the United States Supreme Court to Patrick Henry, who had
been the ablest and most conspicuous opponent of the Constitution in the
Virginia convention. Henry had, however, as Presidential elector voted
for Washington for President in 1789 and had in the meantime become
reconciled to the Constitution. Moreover, while he had been opposed to
many features of the Constitution, he was from the first in full
sympathy with the judicial veto. He thought the Constitution was
defective in that it contained no assurance that such a power would be
exercised by the courts. In his argument against the ratification of the
Constitution in the Virginia convention he said:
"The honorable gentleman did our judiciary honor in saying that they had
firmness to counteract the legislature in some cases. Yes, sir, our
judges opposed the acts of the legislature. We have this landmark to
guide us. They had fortitude to declare that they were the judiciary,
and would oppose unconstitutional acts. Are you sure that your Federal
judiciary will act thus? Is that judiciary as well constructed, and as
independent of the other branches, as our state judiciary? Where are
your landmarks in this government? I will be bold to say that you can
not find any in it. I take it as the highest encomium on this country,
that the acts of the legislature, if unconstitutional, are liable to be
opposed by the judiciary."[84]
Public-domain text, read in full here on John Shaqi.
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