Honolulu star-bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1912-2010, 1913-10-22

l.m,s Legislation by congress- II II OF
interest 10 know. so far as have ex-
aHinei the. aus stiCn. that the power
CT the court TO declare a law unconsti-
) tutscnal has generally been denied
by judges and by law professors. The.
Econtrary view seems TO be taken by
historical students.
Those that oppose the theory OF iu-
diciaI control base their opposition
mainly on three points: First, on the
instrument itself: second, that the
question was raised and voted down
in the convention; third, that such a
!, power TO control Legislation by the.
/. judiciary was without sanction or pre-
cedent In any other government past
or present
In an address before the law de-
paftment Of the University OF Penn
syIyania, in 1906, Chief Justice Wal
ter Clark of North Carolina, very
deliberately stated the objections Of
those who oppose the theory Of judi
,cial control He tried to show that
Madison made the proposal In the
j convention on four different occa-
sions, and that he never got more
than the votes Of two states. One
speaker, Mr.. Mercer. vehemently OPP
posing any power to control an act
OF the legislative department Mr..
Clark also calls attention to the fact
that previous to the convention the
courts of four states, to-wit, New Jer.
sey, Rhode Island, Virginia, North
Carolina, expressed the view that
/ the court or highest resort had the
power to nudity an act OF. the legisla-
| ture, and that the view met with the
violent opposition OF the people Of
/ those states. Indeed, the legislature
Iof Rhode Island went SO far as to
lcal1 for the impeachment of the
Judges making the decision. This
was not done, but at the next session
Iof the legislature they were dropped.
Other Objections Voiced.
Mr.. Clark brings up other 0bjec-
tions to judicial control But II
seems to me that his reasons are
rather in the nature Of polite philo-
sOphy than citing any evidence as
to what the makers Of the constitu.
ition intended.
In q recent issue Of the American
| Law Review, Dean Trickette Of the
/ Dickenaon Law School says, III the
courts possess the power, they owe it
mot to the intention Of the makers,
| but to necessity that Is, their own
Idesire.n mention some other oppo-
lsition views by various men. Mr.. 4
B. Boudin OF the New York bar in an
artiele entitled Government BY Ju.
! dietary, Political Science Quarterly"
IMr. Gilbert Rowe of the New York
bar. ~0ur judicial Oligarchy.r La
/ Follefte's weekly Magazine, volume
8, June "a, 1911 The discussions Of
| the question by these legal gentlemen
Iare somewhat Incorporate, with q
good deal OF heat, In decided contrast
with the historians whose opinions
will try to present next.
/ There were In all So members Of
the convention who were present ct
lsome Of these proceedings, average
tattendance So Perhaps & third Of
these men took little part in the pro-
ceedings Many Of them were very irN
Irregular In attendance. It would be a
/ little tedious and Of no consequence to
Imention their names. Professor
Beard In his work entitled The SUI
lpreme Court and the Constitution,
selects Is out of the 80 whose attend
lance, diligence, ability and character
made them, as he thinks, the dominant
element in the convention. In this re-
Ispect he rs supported by Professor
lMcLanghlin and also Professor Max
1 Ferrand. The three books came out
Hast year. The IS men are: Blair.
Butler, Dayton, Dickinson, Ellsworth,
Franklin, Geary. Gorhan, Hamilton,
johnson, King. Madison, Martin, L..
Mason. Morris. G. Morris, r. Pater-
lson, Pinckney, Charles Pinckney, G.
1C. Randolph, Rutledge, Sherman,
washington, Williamson and Wilson.
This list, he says, Is not conclusive,
but looking through Elliott's debates,
'tone-ca see that they were the demi-
lnant men. think, so far as the pro-
lceedings of the convention go, that
Professor. Beard might have omitted
Hamilton and substituted Charles
4 Pinckney. We certainly have the full
Test records in the convention Of what
these men said. He selects IL of the
Us. who, directly or indirectly, either
Tin the convention or afterwards, de-
Iclared their belief in Judicial control
l-~-eAAlA Isl tAA<At q IN W ttNoo<l0z Wy NOAA-
lgress that was unconstitutional would
he 50 declared by the courts as final
THE names Of these men were: Blair,
Dickinson, Ellsworth, Geary, Hamil-
fton. johnson, King, Madison. Martin,
L Mason. Morris. @. Morris. R. Pater-
fson, Randolph. Washington, William
lson and Wilson. At the risk Of being
la little tedious, | give extracts from
1.-THE speeches of some of these men lin
1.-THE convention, and also of their opin-
lion that came up afterwards, of
lcoarse, outside of the convention. John
blair. member of the Virginia court
lof appeals, agreed with the rest of the
Judges ..that the court had power 10
declare any resolution or act of the
Legislature, or either branch of ii, to
IDe unconstitutional and void" >
IDickinson's Position =
i John Dickinson of Delaware is usu-
Tally placed as among those who OPP
4 nnno6 iudicial c0utrni In tho com