Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-02-24

TIIE FORCE or JUDEcIAL DECISION.
There are certain great and grave
questions, into thedscussion whereof no
considerations of present party interest,
of policy or e~xpedieney ought to be 3D.
lowed to intrude. In considering these,
reason should not be in the least swaysd
or tainted by passion, logic should be
merciless and implaeable, and those who
debate them should do soswith the cold
im~passiveness of the magistrate, and rot
with the fiery vehemence or dazzling
brilliance of the advocate.
One Of these we propose briefly TO dis
cuss, precisely as though il had no bear
ing whatever upon the events that are
now passing into history, or the meas
ures that are to decide the fate and for
tunes of the Republic.
1t is this How far is tie judgment Of
the Supreme Court of the United States,
upon a question properly within its juris-
diction and l~egitinlately before it for de-
cision, to be deemed binding upon the
country-the executive, the legislature.
and individuals? When that tribunal, in
a case regularly before 1t, and in which
the question was directly presented for
decision, decided that the actOf Congress-
establishing the Bank of the United
States was constitutional, it was denied
by many that this decision was binding
upon the President and the legislative
power of the Union. The former claimed
the right to construe the Constitution as
he understood it; and in Congress- the
eonstitutiOnality of the bank was over
and over again debated at full length,
after the decision.
If the decision settles the question
decided, only when that decision is absc-
lutely right, then, as no human Judgment
can infallibly establish that, it is evident
that many questions must remain for
ever unsettled. If the authority Of a
decision is to be denied on the ground
that it is not right, it is clear that almost
every decision would, for many persons,
have no binding effect; for it is rarely
the case that the whole profession of the
law agree in thinking a decision correct.
If it were so completely the purpose in
establishing courts that they should
decide Alright, as that they should be held
useless and mere failures for not doing
so, it would be as well to abolish them at
once. There is no more reason why the
opinion of any five judges should be
right, than why that of any other five
impartial men should be 30. On the con-
trary, the object is to settle the law as
nearly Alright as human infirmity and
the extreme ~fallibility of human judg-
ment will permit, and to adhere TO what
is so settled, whether right or not, until
the same or a higher tribunal reverses the
decision.
For the first object Of every govern
ment is to move tremendously in its
orbit, without clashing or conflict within
itself. To effect this, it is indispensable
that the power of final decision of legal
and constitutional questions should be
lodged sometghere. II there were no
such arbiter in the last resort anywhere,
it would be S most lame and imperfect
goverRment-mere anarchy embodied.
Such a tribunal is not created upon the
ground that it will always decide Alright.
Nobody expects that; it is impossible.
But it is established because the interests
and peace of the community imperG
lively require and demand that the
power of final judgment shall be lodged
somewhere. In whatever body that
power is lodged, every one must acqui-
esce in its decisions; not because they
are right, for that they may or may not
be; bet because they are the judgments
Of the tribunal to which the Constitu-
ton has committed the power of final
judgment.
Mof9bver, it is the State or Nation
itself hat acts through the Executive
Department, enacts through the Legis-
lsture, and decides through the judicial
Tribunal Of last resort. The Nation has
agreed that if any of its enactments are
alleged by a citizen, in a case affecting
his rights, to be null because unconstitu-
tionaI, or to mean this and not that, il
will reconsider them by its highest
Court, weigh the objections to them, and
annul them as unconstitutional lift finds
them to be so.
In u system, each State has agreed,
by the Constitution, that if any of her
enactments are alleged to be null because
contrary to her i~nYiolable agreement
contained in the Constitution of the
United States, and to the limitations in
her powers of legislation thereby self
imposed, she will, jointly with the other
States, examine the question by judges
chosen by all, in their Supreme Court,
and if the enactments be deemed uncon-
stitutional, will, by the joint judgment,
pronounced there by herself and the
other States, annul and recall them.
1t is the old English theory, that the
King was present, Judging, in all his
courts. This judicial decision IL the judg-
ment of the Nation or State as to its own
acts; and in every such case she only
wnces that one of her enactments,
made by her alone, or jointly with the
States, is paramount 10 another
later than it, and in conflict with it, and
must prevail to anngl the other, becausR
both cannot stand together.
And, precisely as every citizen is a
party in law to all the acts OF his coun-
try, as, for example. to a war though he
opposed and voted against it, so every
one is a party to every decision of the
nation or Stale rendered by it In its
Court of last resort. II is his decision, |
in law, and though the opinion of the
Court may not be approved by part Of the
the decision is nevertheless their
decision, in law.
1t is a mere fallacy for an officer Of a
different department to say 4: " It is true
that the Supreme Court has decided thus
and so but ! have sworn an oath to sup
port the Constitution and ss ] believe
court TO have decided enormously, I
must act accordingly, and disregard ITS
iecision. III am perjured, I must bear
The penalty; and therefore l alone must
Judge the question for myself.n If the
President can say this, every constable
and militia captain can. In this respect,
-he lowest has the same right as the
highest.
The oath is TO support the Constitu-
-ion-nO more. There is no qualifca-
ion or condition. By what right attach
.he qualification, 4" as l understand It +"
It is absolute and unqualified. Is it,
therefore, IN oath that the taker will al
ways in his action be governed 10y the
constitution, leaving no margin for error
,r mistake? "No,n it is said, sit must
that 1 will act in accordance with
what my reason tells me is the meaning
II the Constitution" Then it follows,
hat every man is the tribunal TO decide
n the last resort, for himself. That,
therefore,, cannot be the true qualifca-
ion, To support the Constitution,
We must maintain the judicial tribunals
n their right of e%xpOunding the Consti-
utiOn. Its committed to them to do so.
swear oulV to do what IL conStitu-