Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1895-08-08


faderaI p,rtly national appears through
ont the Virginia plan. as well as IN tne
Constitution. which grew out OF IT, -
the explicit concession OF Hare anu
Fiske, critics. from whom virginia may
not expect anything of exaggerated coin-
incubation.
Thus did Virginia. acting upon the m
itlative allowed 10 her hegemohy III ,"e
confederation. introduce to the cohVeh'io"
the true theory of Federal goVeIhn'ut'
and thus Is the Constitution OF l's' put 'hs
articulation of the principles she pio-
pounded. Nay more, In the form OF us
,cceptance by the States. that Is by rati-
acatlon In sovereign convention OF 'he
people as proposed by Madison. she CAV
II a sanction and stability OF wnlch II
wound have been destitute had mere
legislative approval, as suggested u!
Hamilton. been the only basis on wh'ch
il repCeed. A..
Nor ala VIrginia's contributions TO the
Federal structure cease with It's cOmp'e-
ton by the convention. As transmitte"
TO Congress for submission TO the peopIv;
II was wanting in an essential safeguard
for the rights Of the citizen and the S,ate
AGAINST Federal encroachment. But 'h's
defect was speedily repaired. and repaired
from resources supplied by Virginia.
Together with her acceptance OF inc
Constitution she communicated 10 tun-
gress a series Of propositions whlCh sn'
Insisted should be Incorporated WIN IT,
as guarantees OF the rights Of the States
and the liberties OF the people. iier ciaIIn
Of protection TO the States, was cohcrIei
in the Tenth Amendment. providing Una,
"tba nowers not delegated to the United
States by the Constitution. nor prohlbittd
bv II TO the States, are reserved TO the
IL pF "a
And. In the first eight amendments, we
find that each and every specification or
popular immunity Is but a repetition, oc-
c1sionally In Identical terms, OF the prih-
ciulcs embodied In the Bill OF Rights pro-
posed by Virginia. True. some OF these
PRINCIPLES others States had submitted as
A necessary part Of the fundamental law
but then those States had adopted ueH
from George MasOn's BIZ Of fdghts-'"e
earliest not only, but the mot cOmpIs.
hensive. and the most luminous formula
of freedom yet In eXtant in the worm -
that. II not directly, yet derlVatlYely' thf
original amendments Of the Constitution
are distinctly the contribution OF virginia.
4 SUFFICIENT SAFEGUARD.
Thus sunplernented. the Federal Consti-
tuition afforded. IN potency ana promise
a sufficient safeguard TO all the great m
terssts II WAS designed 10 conserye-the
supremacy Of the central government
the rights Of the states. and the inalieha-
bic liberties Of the people
II still remained. however, TO discover
and develop the principle by which these
guarantees upon paper should De eHeC-
tual 10 their purpose. For. of what ayall
10 assert Federal supremacy, II II be I'M
pugned by the action Of the States: or 70
reserve State rights II they be INVADED
by the national authority; or 10 declare
inyiolable the immun.ties Of the cltlzeh
is they be- infringed by the usurpatloh
If government Plainly a power, In some
quarter. 70 restrict the several depart
men,s 10 their normal functions. and 10
arrest any alteration of the Federal or
State government from its legitimate
orbit. was indispensable 70 the harmonious
and benencent operation of the c0mpu-
Gated system Obviously too, the only
method by which this necessary result
could be accomplished WAS by nulliiylnS
any act. Federal or State, which should
contravene the provisions Of the COnsttu-
tiCn.
But. TO what organ Of government might
this portentous power be safely intrusted?
Not 10 the Executive. already armed with
more than regal energies. Not 70 the
LEGISLATURE. which, Obedent 10 popular
interest and popular passion would
make the mandate Of its constituency the
measure Of legal authority. by the nature
u its functions the Judicial Department
alone was competent 20 the delicate anu
difficult task OF eXpOunding the sense OF
the Constitution. and adjUiging what act,
Federal or state, was beyond It's llmlia-
tions. without purse or depending
up0n the LEGISLATURE for the means oi ITS
subsistence and upon the Executive Tor
the enforcement Of It's decrees-lts only
power was moral. and so It's faculty ot
lnyaldatins an unconstitutional act IS
fraught with no menace TO the lnsttu-
lions or the liberties OF the country
Then. too, the sanctity which in the
American mind haloWs the judicial office,
and the rey-rent submission with Whlch
the American people bow 10 the adJudlca-
tons Of private right-airl only In such
adjudications can the validity OF "A law
be- determ.ned-this homage rendered 10
the judiciary was an all-sutiicient guar
amy that rs Judgment. discrediting an
unauthorized act. would be acc pied As
the imperative voice OF the Constitution
itself
And yet nowhere I'm the Constitution IS
there an explicit concession 70 the JUN
| clary Of power 10 iuvalidate an act, Fede-
raj or State, because repugnant 10 its
provisions Implicit authority so 20 al
| Judge. was vehementiy denied in the con
yenti0n: and in the year lSp. was email
| lenged from the Supreme Bench by justice
| Chase, the member most addicted 10 q
| latltudnarian construction of the Federal
compact
To-day. however, the jurisdiction Of any
! courts. the humblest no less than the
most august. 10 pronounce an apparent
! law no law, because contrary 10 the con-
stitution. is a familiar and fundamental
principle OF American Jurisprudence Ana
| il is the feature Of our political system
| that f. peculiarly the marvel and admlra-
! ton of foreign jurists and statesmen
There IS no precedent for it,, says Sir
Henry Maine. either in the ancient or
| the modern world" De Tocqueyille de-
| ciares that the power vested IN tn
American courts Of pronouncing statute
| 10 be unconstitutional forms one Of the
strongest barriers which has ever been
| devised against the Tyranny OF political
assemblies" And DR.. BOrgeaud writes In
| 1894 that "a fundamental difference
separates American constitutional jurls-
audience from that which has grown up
| I'm Europe. While in Europe the act by
| when the legislative power might violate
an article Of the constitution, can only
| give rise TO political redress; in the United
| States the judicial power may decide
upon the constitutionality Of laws"
While recognizing the utility OF the in
| sttu,ion, Bryce and Stevens discredit its
| novelty: affecting 90 see in II nothing
more than the principle upon which Eng
| nsh courts. invalidate n bylaw OF civil
| corporation because ultra wires, and In
| its application only an evolution from the
| law of agency. But. where ia the analogy
| between a judicial interdict Of municipal
transgression. and the multiplying by the
courts, of the act Of an independent and
! coordinate department of government