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partly because first exercised by the Court under the influence of great legal minds like Ellsworth and Jay, and partly, also, because of the tremendous influence in this direction of the great decisions of Chief Justice Marshall. The relation between this power and a written Constitution was first clearly brought out by Marshall when, in his first great decision, he was contending for the right of the Court to set aside an act of Congress. His masterly legal expression of the principle can never be improved

upon:

Marshall

Power for the
Judiciary in
Marbury vs.

Madison.

"The original and supreme will organizes the government and assigns to different departments their respective powers. It may establish certain limits not to be transcended by those departments. Such is the government of Secures this the United States. The powers of the legislature are defined and limited; that those limits may not be mistaken or forgotten the Constitution is written. To what purpose are powers limited and to what purpose is that limitation committed to writing if those limits may at any time be passed by those intended to be restrained? The distinctions between a government of limited and one of unlimited powers is abolished if those limits do not confine the persons on whom they are imposed. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it; or that the legislature may not alter the Constitution by an ordinary act. The Constitution is either a supreme, paramount law, unchangeable by ordinary means, or it is on the level of ordinary legislative acts, alterable at the will of the legislature. If the former part of the alternative be true then a legislative act contrary to the Constitution is not law. If the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. . . . Certainly all those who have framed written constitutions contemplate them as forming the fundamental paramount law of the nation, and consequently the theory of every such government must be that an act of the

legislature repugnant to the Constitution is void. This theory is essentially attached to a written Constitution and is consequently to be considered by this Court as one of the fundamental principles of our society.

"It is emphatically the province and duty of the judicial department to say what the law is. If a law be in opposition to the Constitution the Court must either decide the case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the Court must determine which of the conflicting rules governs the case. This is of the very essence of the judicial duty. The courts cannot close their eyes to the Constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure."''

To the same effect Chief Justice Chase says:

"When a case arises for judicial determination and the decision depends upon the alleged inconsistency of an act with the fundamental law, it is the plain duty of the Court to compare the act with the Constitution and if it cannot be reconciled with the latter to give effect to the Constitution rather than to the statute. This seems so plain that it is impossible to make it plainer by argument. If it be otherwise, the Constitution is not the supreme law, and it would be useless to inquire whether or not an act of Congress is in pursuance of it."' '

This does not mean that the judicial department is superior to the legislative, but only that the power of the people is superior to both. When an act of Congress is declared unconstitutional there is no conflict between

I Marbury vs. Madison, Cranch 1.

Chief Justice Chase in the case of Hepburn vs. Griswold, 1870, 8 Wallace, 603

the legislative and the judicial departments. The conflict is merely between two kinds of law. The Judiciary must say what the law is and decide every case according to the supreme law, the law that is to prevail.

American

Law.

There are four kinds of law in America: (1) The Federal Constitution. (2) Federal Statutes. (3) State Four Kinds of Constitutions. (4) State Statutes. (4) State Statutes. The Federal Constitution is the "supreme law," and all the other forms of law must be in harmony therewith. If two laws conflict, not the later but the higher prevails; the lower authority must give way. The Court in interpreting the law merely states what the higher law requires and shows wherein the lower law is inconsistent with this. The judges must regulate their decisions by the fundamental laws rather than by those that are not fundamental. It is the law, not the will of the judges, that prevails. The will, or opinion, of the judge should have nothing to do with the case. He may think one law good and another bad; as a judge he is bound to allow only that one to stand which is in harmony with the Constitution. If he be guided, not by the law but by his personal interests or his political views, he is unfit for his place, and a decision inspired by such motives will arouse popular displeasure and distrust. If the case were flagrant and odious it might provoke resistance and cause the Court to become the object of public and political attack.

The Court has generally sought to avoid politics, and it has been strong just in proportion as it has succeeded. Yet it has not always been able to keep itself The Supreme above political discussion and free from party Court and strife and conflict. Jay's decision in the famous

Politics.

case of Chisholm vs. Georgia aroused the adherents of States' rights and they demanded the Eleventh Amendment. The Federalists on the eve of their retirement in 1800 sought to enlarge the scope of the Judiciary and to

Political
Opposition to

Decision.

provide for some Federalist appointments and John Adams's "midnight judges" aroused party criticism and opposition. The Jeffersonian Republicans, when they came into power, not being able to remove the Federalist judges from office nor reduce their compensation, abolished the courts by repealing the law that created them. It being unconstitutional to remove the judge from the office, they removed the office from the judge. Marshall's nationalizing decisions aroused the opposition of the States' Rights school, and the bank decisions of the Court aroused local political opposition in some of the States. In 1857, the most serious introduction of the Court into the arena of politics occurred by the the Dred Scott Dred Scott decision. The chief political issue between parties at that time was as to whether or not Congress should prohibit slavery in the Territories. The Republican party had come into being primarily upon the demand that slavery should be prevented by national power from entering the Territories. In deciding the Dred Scott case and remanding Dred to slavery, which the Court might have done merely by the application of Missouri law,' the Court went aside to give its opinions upon the controverted political questions of the day. If the opinion of the Court were to be taken as a guide in the politics of the country, the Republican party had no longer any reason for existence. The Republican leaders, Sumner, Stevens, Lincoln, and others, denounced the decision as partisan, Lincoln and Seward going so far as to accuse the venerable Chief Justice and President Buchanan of collusion in the preparation of the decision. The Republican party still pursued the political course that had been condemned by the Court, and the only injury done was to the Court itself. The Republican party, as a party, denounced the decision as "a dangerous political heresy, revolutionary in its tendency and subversive 1 See p. 319.

of the peace and harmony of the country." The Republicans came into power denouncing the Supreme Court and repudiating its decision.

Greenback
Decisions,

The "greenback" decisions of the Court have also aroused political opposition. Whether Congress should issue legal-tender notes to be used as money, And to the as bank-books are, is a public financial question to be determined by the political department of the Government. Politically the country is greatly divided upon this question. The Supreme Court has ruled in favor of the constitutional power of Congress to do this. The Court at first decided (1870) that this power did not rest with Congress. But the Court was soon changed in its personnel by the creation of a new justiceship and by the filling of a vacancy, and a new case was gotten up. The opinion of the two new judges was already known from their having passed on similar cases in lower courts, and when the new decision came the majority of the judges held that Congress, in the exercise of a war power, might issue legal-tender notes. Later, in 1884, in still another case, the Court held, with only one dissenting voice, that this power rests with Congress in time of peace as well as in time of war. This decision was thought to be dangerous by some whose political and financial opinions were offended by it.'

And to the

Income Tax
Decisions.

Previous to the campaign of 1896, the Populist party and many Democratic conventions in the States demanded a national Income Tax, and, in 1894, a Democratic Congress passed such a tax. The Supreme Court, by a vote of five to four, one judge having changed his mind, declared it unconstitutional and set it aside, thus reversing previous decisions. on this subject. This offended the Democrats, and in 'See George Bancroft's The Constitution Wounded in the House of its Friends; James's Legal Tender Decisions; Papers of the American Economic Association.

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