Limitation of Power of Supreme Court to Declare Acts of Congress Unconstitutional

By Julia E. Johnsen | Go to book overview

NEGATIVE DISCUSSION

TRUTH ABOUT THE ORIGIN, THEORY AND PRACTICE OF THE JUDICIAL POWER TO DECLARE STATUTES UNCONSTITUTIONAL1
In the literature emanating from the (American) Federation (of Labor) three propositions are principally relied upon as arguments against the exercise by the courts of the power to refuse to enforce laws, found to violate the Constitution. These propositions are:
1. That the power to declare a statute unconstitutional was not contemplated by the framers of the Constitution, is not given by the Constitution to the court, and was originated, or at any rate given initial vitality, by Chief Justice John Marshall in 1803.
2. That this power is peculiar to the United States and its exercise by the judiciary in any other country would not be tolerated.
3. That the exercise of this power defeats the will of the people.

These propositions are untrue in fact.

1. The proposition that the idea of the power to declare a statute unconstitutional originated or was given life by John Marshall is contradicted by the numerous references to the power in the debate in the federal Constitutional Convention in 1787 and in the conventions of the several states which thoroly debated the Constitution before ratifying it, in the Federalist, published during the debates, and in resolutions of state legislatures in 1799, as well as in judicial opinions in the state courts prior to John Marshall's elevation to the Supreme Court of the United States.

____________________
1
Law and Labor. 6:259-63. October, 1924.

-201-

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Limitation of Power of Supreme Court to Declare Acts of Congress Unconstitutional
Table of contents

Table of contents

  • Title Page 1
  • Introduction 3
  • Contents 7
  • Summary of the Arguments 11
  • Bibliography 31
  • General Discussion - Supreme Court of the United States And Unconstitutional Legislation 59
  • Affirmative Discussion 131
  • Negative Discussion 201
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