The Ward County independent. [volume] (Minot, Ward County, N.D.) 1902-1965, 1915-02-04
CONSTITUTIONALITY.

Grand Forks Herald: Representa-
tive Hendrickson has introduced bill
in the North Dakota legislature pro-
vidng that no statute shall be declar-
ed unconstitutional except by the
unanimous vote of the supreme court.
Representative Divet denounced the
proposition as a dangerous joke, and
project tending to upset one of the
fundamental principles of American
government, that of majority rule.
Let us look for moment at this
matter of majority rule. The men,
bers of the state legislature are placed
in their positions by the votes of ma
jority of the voters of the state. Pre-.
sumably they represent the prepon-
derant sentiment of the state. The
legislature enacts law to meet a gen.
eral and well understood demand The
presumption is that laws enacted by
the legislature are constitutional. The
legislature and the courts are equally
creatures of the constitution. They
derive their authority from the same
source, and each body has been
charged with certain duties. Both are
expected to perform those duties reg
ularly and constitutionally.
The question, therefore, whether an
act of the legislature is or is not good
law is not an academic question, plac-
ed before the deciding tribunal in an
even-handed manner, with no greater
weight on the one side than on the
other. The law is, prima facie, con-
stitutional, for it has been passed by
a body created by the constitution for
that purpose, and the work of that
body, in the absence of overwhelming
evidence to the contrary, must be ac
cepted as regular.
But, under the present practice, we
reach some curious results. A case
is taken before the supreme court of
this or some other state, or before the
federal supreme court. The constitu-
tionality of law is called in question.
A majority Of the members of the
court, less one, decide that the law is
constitutional, and state their rea-
sons. An equal number of judges are
certain that the law is unconstitution-
al, and state their reasons. The re-
naming judge has the power to decide.
He disagrees with all the others so
far as their course of argument is
concerned, but he, like two or three.
or more of the others, holds the law
unconstitutional although on grounds
different from those already advanced.
Under exactly those conditions scores
of laws have been declared unconsti-
tutional laws which have been en-
acted by the body created by the con-
stitution for that purpose, and held
to be constitutional by one or more
judges of the highest court. But, be-
cause there happened to be a majority
of the court, some of whose members
objected to the law on one ground,
and some on another, the legislation
has been thrown into the discard.
The plan requiring unanimous con-
demnation of law by the supreme
court before it can be declared I'M
constitutional is not an attack on the
rights of the majority. It is meas
ure for the protection of the majority
in it's right to govern. The sugges-
ton for such law is not peculiar to
our state. 1t has been made elsewhere
frequently, and the passage of a feder
al law of like nature has been urged
on congress. 1t ought to be the rule
everywhere. The final decision as to
the constitutionality must rest with
the courts. This is one of the things
for which courts were created. But
it is not too much to require that so
long as legislative acts are held to be
regular, even by one judge of the
highest court, the law shall stand.