The Intermountain Catholic. (Salt Lake City [Utah] ;) 1899-1920, 1903-05-23
Conversations of Our Club ;.
CONVERSATION vIII.-continues. |
By Orestes A. Brownson

CONVERSATION VIII.-continued.
The supreme court, therefore"
added Winslow, "can never, whatever
the text of the written constitution,
declare anything to be constitutional,
and therefore law, that contravenes
/ natural justice. 1t is not true, then.
mat lhe court has no power to go
behind even the written or conven-
t1onal constitution, and to INQUIRE
whether the law does or does not yfo-
late The law of nature, for the law of
nature being the fundamental law of
the state, that from which the state
derives its being and the convention
all its powers, is as much before the
court or within its cognizance as the
conventional constitution itself The
supreme court of any state for the
state, the supreme court of the United
States for the Union, is the supreme
civil tribunal for settling the consti-
nationality or unconstitutionality of
the legislative acts which come before
it. 1t entertains the plea to the consti-
nationality, and will declare every leg
lslatlve act or so much thereof uncon-
stltutlonal and void as it judges to be
forbidden or not authorized by the
constitution. But no act is or can be
constitutional that contradicts the
natural law, because that law is an
essential element of the constitution.
is itself the fundamental constitution
of every state by the very fact that
the state is a state, not a mob or
despotism'
The court" explained Father John.
Judges of the justice of the law-that
is, whether it is or is not forbidden
by the natural law, but it does not
Judge of the policy or impolicy, expe-
diency or inexpediency of the law, for
that belongs primarily to the political.
and secondarily, to the legislative
power"
THE judges" rejoined O'Flanagan.
are civil officers, created by civil So
ciety, and hold their office from the
prince, Or as we say in this country \
from the people They are subordi-
nate to the sovereign, and are bound
to ascertain, declare, and apply to the
case before them the will of the SOW
ereign people, as expressed by them
in the constitution and the laws made
in accordance Herewith. They may
judge whether the legislative enact
ment under which the case before
them is brought, does or does not con-
form to that will so expressed, but
they cannot go behind that will itself,
or judge the acts of the convention,
under pretext of Judging whether the
law is constitutional or not The high
est conceivable tribunal is the con-
vention or the people themselves. and
their judgment in convention, of what
is or is not in accordance with the
law of nature, is supreme and final
for the civil court. 1t would be alb
surd to pretend that the judges have
authority to sit in judgment on the
will that creates them, and to set
aside as void the very act from which
they derive all their power"
IF the maxim of the old Roman
iurist, Quod Placuit principi, i'd legis
habet vigorem, be accepted, Mr..
O'Flanagan is certainly right" replied
Diefenbach. His principle is unuues-
tionably that adopted by Mr.. Chief
Justice fancy, and by the leaders of
the Democratic party, since the time
of General Jackson, who introduced
and sanctioned the doctrine that each
department of the government inter
prets the constitution for itself. The
courts are created by the convention
or the epople, and the judges are di-
rectiy or indirectly appointed by
them, and officiate in their name: but
the courts are created courts of JUS
tice, and the judges are elected or ap-
pointed to administer justice. and, |
therefore, derive their power from the |
people only so far as the justice they |
are to administer is created by the |
people and dependent on their will. |
They are judges of the law; they de-
eide sovereignty in the civil order
what is the law, as well as apply the
law to the particular case before them.
The will of the people or the conyen-
ton is law within the limits of the
natural or the moral law, but is null
and void as unjust, as violence. the
moment it passes beyond those linn
its. Whether their will does or does
not pass beyond those limits. is not
a political or legislative. but a Judi
cial question, and its decision belongs
not to the convention, the supreme DO
litcal power, nor to the legislature
but to the supreme judiciary. This is
implied in that division of the powers
OF government into separate DEPART