Legislative Problems: Development, Status, and Trend of the Treatment and Exercise of Lawmaking Powers

Legislative Problems: Development, Status, and Trend of the Treatment and Exercise of Lawmaking Powers

Legislative Problems: Development, Status, and Trend of the Treatment and Exercise of Lawmaking Powers

Legislative Problems: Development, Status, and Trend of the Treatment and Exercise of Lawmaking Powers

Excerpt

THE courts may be called on to determine (1) what either a statute or a constitutional provision means, or (2) whether the enactment of a statute was within the constitutional power of the enacting body. In both cases the relations of the legislative and judicial branches are concerned, save when the meaning of a constitutional provision affects a litigated issue directly, but the constitutional provisions that are self-executing rarely produce litigation and anyhow need no attention in a study of legislative problems.

In mere point of the meaning of words there is of course no distinction between interpreting a statute and interpreting a constitution, but important difference arises from the number of words used. Constitutions have for the most part been made up of brief, general statements, more indistinct of outline than the specific, detailed provisions customarily attempted in statutes. Hence in this respect the courts have a far wider scope of duty than when constitutionality is in issue. The result has been, particularly in the case of the Constitution of the United States, that the Supreme Court has been called upon, has been required, has been compelled, to supplement the work of the original authors, that is, to determine not only what they did say, but also what they ought further to have said -- in other words, some think, themselves to write organic law. Thomas Jefferson did not like this and it was with a sneer he said that John Marshall and the Supreme Court were engaged in making a Constitution for the government. As far as developing is making, that was true, and also it was fortunate. Somebody had to expound the wonderfully brief and compact document that came from the Federal Convention. To-day few will regret that it has been done by our Supreme Court rather than by Presidents of alternating partisanship, or Congresses dominated by sectional influences and swayed by every passing gust of emotion.

The charge that judges write new constitutional provisions is what gives rise to present-day discussions, but for many years legislative and judicial functions overlapped or came in conflict . . .

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