The Seattle star. [volume] (Seattle, Wash.) 1899-1947, 1923-10-27

EditeF's Notc-Lawell Mcileit,
of this papers Washington
staff, has made an extensive
study Of the movement TO eur.
tail tho power OF The supreme
court, Mcllott has written n
series Of articles giving the out
standing Incidents In the courts
history, This Is the fifth article
In the series,
The first assertion by tho y. $.
supreme court OF right TO de-
clare acts OF congress unconsti.
tutional was mRdo In 1903. IL
was likewise the last such anser.
tlon for Is years.
Just at the close Of John Ad.
ans administration tho retiring
congress rushed thru an net ere.
nting q large number OF add.
tional judicial offices. Adams
filled them by appointment.
Among tho number were four
justices OF the peace for tho dis.
tibet OF Columbia. including ono
William Marbury. The commits
sions, however. making these np.
pointmenta good had not yet
been issued when Thomas Jeftcr.
son took office as president. Ho
Instructed James Madison. his
secretary OF state. not 20 Issue
the commissions.
Tho preceding congress had
provided that the supreme court
could issue writs OF mandamus
20 any person holding office un.
der the authority OF the United
States, William Marbury applied
for a mandamus TO compel tho
delivery OF his commission by
Madison. Tho supreme court did
not hand down It's decision for
two years. The opinion. written
by John Marshall. was that Mar.
bury'S commission was not rev.
okahlo. and that 20 withhold his
commission was violatiyc OF n
vested right.
This disposed OF the Marbury
case. but Marshall. newly DO.
como chief justice. did not stop
there. He proceeded TO declare
that the act OF congress under
which Marbury had brought nc.
ton required the supreme court
10 do something which Il had no
authority under the constitution
10 do. This act OF congress. no
held. was therefore uneons,itu.
tional and void.
The John Marshall theory was
expressed. in part. as follows:
The powers OF the legislature
arc defined and limited. and that
those powers may not 30 mia.
taken or forgotten the constitu.
ton Is written. The distinc-
ton between a government with
limited and unlimited powers Is
abolished, II those limits do not
confluc the persons on whom
they arc imposed. and II acts
prohibited and acts allowed arc
OF equal obligation. II In n
proposition too plain TO be con.
tested, that the constitution con.
trolls any legislative act repug.
nant 10 II: or. that the lcgls-
iaturc may alter tho oonstltu.
ton by an ordinary act. Be.
tween these alternatives there il
no middle ground. The eonatl.
tuition Is either "a superior par.
amount law. Interchangeable by
ordinary means. or IL is on "a
level with ordinary legislative
acts. aud Ike other acts. IL nj.
rrable when the legislature
shall please TO alter II. =. Ger.
tainly all those who have
framed written constitutions
contemplate them as forming
the fundamental and paramount
law OF tho nation and. conse-
Quently. tho theory Of every
such government must bo that
an net OF the Legislature, repug.
nRnt to tho constitution. Is void.
This theory Is essentially Mt.
taehed 10 a written constitution
and ia consequently to be con.
Sidered by this court ns ono OF
tho fundamental principles OF
our society. II ia not therefore
TO be lost sight OF In tho further
consideration OF this subject.
III nm act OF the legislature.
repugnant 70 the constitution.
Is void. does Il. notwithstandlnE
It's invalidIty. bind tho courts
and oblige them TO give IL ef.
fect7 or. in other words. tho
!, be not law. does II constitute
rule as operative as II II was
law7 This would be to over
throw in fact what was cstnb.
llshed In theory. and would
seem At first view. an absurd