Washington standard. [volume] (Olympia, Wash. Territory) 1860-1921, 1910-09-23
G CONSTITUTION AND FEDERAL JU-
DICIARY.
BY BYRON MILLETT.

By BY RON MlLLETT.
After the adjournment of the Con.
stitutional Convention, a friend oil
Gouverneur Morris said to the latter
you haye made good constitution.
Morris replied: THAT depends on
how it is construed" Political par
ties in U. S. by Gordy, Vol. l, Page
ia. Blackstone observed that in
every constitution there exists q
power which controls without being
controlled. This power is exercised
by an oligarchy of nine non elective
Judges. An able writer on cOnstitu-
tional law uses this language: Il
do not know of any more striking po-
litical paradox than this supremacy
of non-elected power in the democ-
racy repu.ed to be OF the extreme
type"
Studies in Constitutional Law by
Boutny-page III.
There is no provision in the Unit
ed States constitution which dele
gates to the Supreme Court of the
United States or any other tribunal
the power to declare an act of Con-
gress unconstitutional. Able jurists
have declared no such power exists:
Chief Justice Gibson II S & r $50,
1856. Tricket, Judicial Notification,
North American Review Aug. 10Th,
1907. Cox on Judicial Power and
Legislation 234, 246.
The question arises in this connec-
ton how the United States Supreme
Court came to exercise powers which
were not delegated and what prece-
dents, If any. the court had before it
favorable to the exercise of such ex-
traordinary functions. Great Brit
ain never had any written constitu-
ton. The acts of Parliament are
supreme. This body possesses the
power to nullify court decisions and
abolish judicial Offices at its pleasure
without being accountable to any au-
thority on earth. In the countries of
continental Europe legislative enact
ments constitute the supreme law
of the land; no judicial tribunal ever
assumed to nullify those laws or ig-
more them.
In the colonial history of this coun-
try precedents were established by
the courts for declaring legislative
acts unconstitutional. Charters had
been granted to the colonies by the
British crown, and if laws were
found to be in contravention to the
provisions OF those charters the local
tribunals held that they we're in
valid, from which judgments ag-
grieved parties might appeal to the
Privy Council of the mother country
for redress. 1t is important to bear
in mind from the foundation of the
Government until the time of the
civil war the court had only decided
in two cases acts OF Congress to be
unconstitutional while since that pc
ri0d numerous acts of this body have
been thus declared. In the large
majority Of instances, the decisions in
this regard have been made by a di.
vided court. The first case involving
the consideration of this question
was that of Marbury VS.. Madison in
1903. The court held it derived its
powers and exercised its original ju.
risdiction under the Federal consti-
tuition, that Congress had no power
to enlarge this jurisdiction. that its
attempt SO to do by legislation rem.
dered the enactment unconstitution-
al. Madison was then Secretary oi
State under President Jefferson's ad-
ministration; had the decision been
otherwise serious conflict might
have arisen between the executive
and judicial branches of our govern
ment which the ruling of the court
had obviated. II history is to be
credited, the rulings of the Federal
courts under the administration OF
President John Adams who belonged
to the Federalist party, made his ad-
ministration unpopular which party
from that time ceased to control ma
tional affairs. Chief Justice Mar
shall delivered the opinion in the
Marbury case. He was pronounced
Federalist; it has been suggested
with some degree of plausibility that
the court in making its rulings was
attempting to square itself with the
Democratic views regarding govern
mental policies frequently advocated
by Jefferson, who believed the pro.
visions of the United States consti-
tuition should be strictly construed.
1t has been argued, If Con-
gress and the Executive should
be allowed to decide as to the con-
stitutionality OF laws enacted by
this body it might err and usurp
functions not delegated to it, which
is true, but the Supreme Court might
also err as this tribunal has in num-
erous instances reversed itself on
questions of national prominence.
Generally speaking, in order to avoid
putting itself on record as fatty over
ruling previously established prece-
dents on given points, it ignored its