Government by Judiciary - Vol. 1

Government by Judiciary - Vol. 1

Government by Judiciary - Vol. 1

Government by Judiciary - Vol. 1

Excerpt

In a sense it may be said that it is the purpose of the present work to prove one statement made by Mr. Justice Oliver Wendell Holmes and to disprove another,--although both of these statements were made after the present work was practically finished and at the time of its commencement the writer had no expectation that Judge Holmes would make either of them.

The earlier of these statements--the one the present writer has endeavored to disprove--was made by Judge Holmes in an official opinion, handed down by him as Associate Justice of the United States Supreme Court in the case of Blodgett v. Holden, (275 U.S. 142), decided November 21st, 1927. It refers to the right of our Judges to declare laws unconstitutional and occurs in the following paragraph. Says Judge Holmes:

"Although research has shown and practice has established the futility of the charge that it was a usurpation when this court undertook to declare an act of Congress unconstitutional, I suppose that we all agree that to do so is the gravest and most delicate duty that this court is called on to perform."

Such a statement coming from such a source should give pause to any one--and the present writer is second to none in his admiration for the Grand Old Man of American Jurisprudence. Nevertheless, he ventures to assert that the present work disproves the correctness of this statement as contained in the italicized words; and that the charge referred to by Mr. Justice Holmes, frequently made before and reiterated by the present writer in an essay published by him twenty years ago in the POLITICAL SCIENCE QUARTERLY (Government by Judiciary, 26 P.S.Q. 238; June, 1911), is fully sustained by the facts and considerations presented in these volumes.

This belief notwithstanding, the term "usurpation" has never been used by the author in this work as his own characterization of the assumption of power involved--for the reason that the use of this term places the emphasis on a wrong aspect of the historical . . .

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