SUPREME COURT OF THE UNITED STATES AND UNCONSTITUTIONAL LEGISLATION1
Altho from the very first year of its existence the Supreme Court asserted its power and its duty to declare acts of Congress void if contrary to the Constitution, there was practically no opposition to the assertion of that power for nearly sixty years thereafter. Indeed, the bitterest of all the attacks made on the court were on account of Marshall's greatest opinion, McCulloch v. Maryland, not because it had declared an act of Congress void, but because it failed to do so and had sustained the power of Congress to charter the Second Bank of the United States.
I must forego any notice of some recent proposals that the Supreme Court should be prohibited from declaring any state or federal statute unconstitutional unless at least seven out of its nine members concur in the decision; and that any law declared void by the court should nevertheless become valid, if it be repassed by Congress, anything in the court's decision to the contrary notwithstanding.
But on this latter point may I be permitted to observe that such proposals are not even novel.
They have been repeatedly urged in Congress and in the press during periods of great public and political excitement in the last one hundred years, but have never been adopted because the people realized that the preservation of their liberty was safer in the hands of the Supreme Court than in those of temporary and shifting partisan majorities.____________________