Congress or the Supreme Court: Which Shall Rule America?

By Egbert Ray Nichols | Go to book overview

FIFTY YEARS' WORK OF THE UNITED STATES SUPREME COURT*

Associate justice HARLAN F. STONE

It is a fact worthy of some comment that in the discussion of the powers of the court to declare statutes unconstitutional, we have been disposed to leave entirely out of account this indispensable function of the court as the arbiter between sovereign governments, and we have taken little thought of the effect on its exercise of that function, of the proposals which have been made for limiting its authority to declare statutes unconstitutional. Whether that power should be limited is a political question which I do not discuss, but in a gathering of lawyers it is entirely appropriate that some consideration should be given to the effect of the particular methods of limitation which have been suggested.

The devices proposed for setting limits upon the exercise of this power have been aimed at giving to statutes a weight which they would otherwise not possess in their competitive struggle with the provisions of the Constitution. They have been of two kinds. It has been suggested that if a statute whose constitutionality was contested were upheld by the vote of a minority of two or three of the members of the court, it should become law despite all constitutional objections.

When any such device is applied to the function

____________________
*
Cong. Record v. 70, Pt. 4, P. 4209, Feb. 25, 1929.

-140-

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