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Lincoln on Judicial Despotism
FIRST THINGS ^ | February 2003 | Robert P. George

Posted on 03/04/2003 3:31:18 PM PST by Remedy

After the Supreme Court’s landmark 1954 decision in Brown v. Board of Education ordering the desegregation of public schools in Topeka, Kansas, lawsuits promptly were brought to dismantle legally sanctioned segregation in other states. One of these was Arkansas. There, Governor Orville Faubus and other state officials maintained that they were not bound by the Supreme Court’s ruling in Brown. That decision was constitutionally incorrect, they insisted, and amounted to a federal court’s usurpation of the constitutional authority of the states. Moreover, Arkansas was not a party in the case. Therefore, they contended that a lower federal court in Little Rock had no constitutional authority to order the desegregation of public schools in Arkansas on the basis of the Brown decision.

Arkansas’ appeal of the lower court’s order eventually made it to the Supreme Court of the United States in the 1958 case of Cooper v. Aaron. No one had any real doubts about what the outcome of that case would be. The Justices would certainly uphold the desegregation order. They did so, however, in a ruling that did more than merely remind the Governor and other state officials that they had "no power to nullify a federal court order." In a unanimous opinion, the Court asserted, for the first time, that "the federal judiciary is supreme in the exposition of the law of the Constitution."

The idea of judicial supremacy—or the idea that the supremacy of the Constitution entails judicial supremacy in constitutional interpretation—has come to be so widely held not only in the legal profession but also by the public at large that today it seems unremarkable. As the nation prepares for our annual celebration of Abraham Lincoln’s birthday, however, we have an occasion to consider just how remarkable it is, and just how far it is from the Great Emancipator’s understanding of the legitimate scope of federal judicial power.

According to the standard account of the matter, the power of judicial review—that is, the authority of the federal judiciary to invalidate acts of Congress and the President when they are deemed to be unconstitutional—came to be entrenched in our law by the acceptance, tacit or otherwise, of the Supreme Court’s ruling in the 1803 case of Marbury v. Madison. Of course, nowhere in the text of the Constitution is any such power granted. Rather, Chief Justice John Marshall inferred the existence of the power, or, at least, something like it, from the fact that the written Constitution declares itself to be the Supreme Law of the Land, combined with the evident principle that, in Marshall’s language, "It is emphatically the province and duty of the judicial department to say what the law is."

Now, a lively dispute has existed from the moment the Court handed down its decision in Marbury as to the scope of that ruling. Even today, some scholars argue that it did nothing more than declare that the Supreme Court is within its rights in declining to exercise an authority putatively conferred upon it by Congress when such authority exceeds the jurisdiction granted to the Court under Article Three of the Constitution. Certainly, as a technical matter, all the Court did in Marbury was refuse to exercise original jurisdiction beyond what it was granted in Article Three on the ground that the expansion of its original jurisdiction by Section 13 of the Judiciary Act of 1789 was unconstitutional. So, the contemporary constitutional scholar Robert Lowry Clinton argues that it is a mistake to read the case as claiming a judicial power to tell the President or Congress what they can or cannot do under the Constitution. He maintains that it simply stands for the power of the Court, as a coequal branch of government, to act on its own interpretation of the Constitution in deciding what it can and cannot do. This, Clinton observes, is entirely consistent with the recognition of a like power in the other branches.

Of course, the conventional reading of Marbury—shared by the decision’s friends and foes alike—has it standing for a considerably broader scope of judicial authority. Thomas Jefferson condemned the decision precisely because he viewed it as claiming a power of the courts to impose constitutional interpretations on the other branches. This, he later asserted, would have the effect of "placing us under the despotism of an oligarchy." And at the opposite extreme from Professor Clinton’s reading is the reading offered by the Supreme Court in Cooper v. Aaron. What I described as a "remarkable" claim to judicial supremacy, the Cooper Justices presented as nothing more than a straightforward, uncontroversial, altogether mundane and logical implication of Marshall’s proposition about the "province and duty of the judicial department." Indeed, the paragraph in which the Justices make the claim offers nothing in its support beyond the invocation of Marbury.

Whatever Marbury was supposed to mean about the scope of the power of judicial review, it is a notable fact that the Court declined to exercise that power to declare another act of Congress to be unconstitutional until 1857, when it ruled in the case of Dred Scott v. Sandford. Scott was a slave in Missouri who had been taken by his master into the free state of Illinois and the free Wisconsin Territory. He then brought a suit demanding his freedom in St. Louis County Court under Missouri law, claiming that he was legally entitled to be free by virtue of having resided in a free state or territory. He won in the trial court but the ruling in his favor was reversed by the Supreme Court of Missouri. He then brought a new case in the federal courts to consider, among other things, whether a state could reverse the "once free, always free" principle under which the St. Louis County Court had ruled in Scott’s favor. Once the matter entered the federal courts, it became a massive political hot potato. Sandford (whose name was actually Sanford), acting on behalf of his sister who was Dred Scott’s owner, injected into the litigation the question whether any black person, free or slave, could be a citizen of the United States, and he directly challenged the constitutionality of the Missouri Compromise of 1820, which forbade slavery in the Louisiana Territory north of latitude 36° 30’. Although the power of Congress to forbid slavery in federal territories was well–established, Sandford argued that slaves were private property of the sort protected by the Constitution against deprivation without due process of law, and that therefore Congress lacked any constitutional authority to ban slavery in the territories.

When the matter reached the Supreme Court of the United States, Chief Justice Roger Brooke Taney, writing for a seven–man majority against two dissenters, accepted Sandford’s major contentions, not only sending Scott back into slavery, but holding, in effect, that he had never been free. The majority ruled that blacks could not be citizens of the United States, and therefore lacked the concomitant right to bring lawsuits in federal courts. Moreover, they held that Congress lacked constitutional authority to forbid or abolish slavery in federal territories. And still further, since slaves were, the Court ruled, personal property protected by the Constitution, the Missouri Compromise was unconstitutional.

All of this added up to a sweeping and profound ruling. The Court had massively injected itself into the most divisive and highly morally charged issue of the day. In my edited book entitled Great Cases in Constitutional Law, there is a most interesting exchange between Prof. Cass Sunstein of the University of Chicago and Prof. James McPherson, my colleague at Princeton, regarding the political impact of the Dred Scott decision. Sunstein defends the commonly held view that the case polarized an already dangerously divided country and made the Civil War and its toll of carnage almost inevitable. Instead of ending the conflict over slavery by definitively resolving it, as Taney apparently hoped to do, the Court, according to Sunstein, intensified the conflict and heightened emotions. McPherson holds the minority view that the case "did not really polarize the country any more than it was already polarized by the issue of slavery in the territories."

Whichever scholar has the better argument, they agree that the decision focused the debate over slavery and introduced into the already heady brew of issues involved in that debate the question of the scope of judicial power under the Constitution. McPherson points out that "so thoroughly did the Dred Scott decision pervade and structure the Lincoln–Douglas debates [in 1858] that in one of those debates a Douglas supporter shouted from the audience to Lincoln: ‘Give us something besides Dred Scott.’ Quick as a cat Lincoln responded: ‘Yes, no doubt you want to hear something that don’t hurt.’"

To Lincoln Dred Scott was an abomination, but for reasons of principle going even beyond those set forth by the dissenting Justices in the case. That Lincoln was devoted to the Declaration of Independence and viewed its statement of principles as integral to the American scheme of constitutional government is, if anything, an understatement. However, the Declaration was far from the only writing of Jefferson’s of which Lincoln was mindful. In Jefferson’s letter of September 28, 1820 to William C. Jarvis, from which I quoted earlier his line about judicial "despotism," he explained his opposition to judicial supremacy in constitutional interpretation as follows:

The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments coequal and co–sovereign within themselves. If the legislature fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the Constitution, or if they fail to meet in Congress, the judges cannot issue their mandamus to them; if the President fails to provide the place of a judge, to appoint other civil and military officers, to issue requisite commissions, the judges cannot force him.

Now, I daresay that to us—living in the aftermath of an expansion of judicial power that may, perhaps, more properly be conceived as having been expressed and ratified, rather than created, by the Supreme Court in Cooper v. Aaron—this language is quite shocking. Part of this, no doubt, has to do with the prestige that courts, including the Supreme Court of the United States, enjoy in elite sectors of our culture. Criticism of the scope of judicial power is often perceived by its partisans as, in effect, attacking the independence of the judiciary or even the ideal of judicial independence. The key thing to see is that Jefferson’s language was not at all shocking to Lincoln. On the contrary, it is entirely in line with his own fears of the political consequences of judicial supremacy.

Like Jefferson, Lincoln believed that courts, including the Supreme Court of the United States, could violate the Constitution and even undermine constitutional government. That judges, whenever they invalidate executive or legislative acts, purport to speak in the name of the Constitution, and claim merely to be giving effect to its commands, was in Lincoln’s view no guarantee against judicial despotism. Judges exercising effectively unconstrained power were, in his view, no less a threat to the Constitution than other governmental officers exercising such power. His fear was not that judges would sometimes err in their constitutional rulings. Given human fallibility, that is in­evitable and unremarkable. His fear, rather, was that judges are capable of behaving unconstitutionally, just as other officials are capable of behaving unconstitutionally, by exceeding the authority granted to them under the Constitution and thereby usurping the authority allocated to other officials in a delicate system of checks and balances. Indeed, Lincoln believed that judicial violations of the Constitution were in certain respects graver matters than the violations of elected officials.

Lincoln, of course, was a lawyer. He knew from experience that judges come in all shapes and sizes—competent and incompetent, conscientious and slapdash, honorable and corrupt. He wasn’t a skeptic after the fashion of the legal realists who would rise to prominence in the law schools fifty years or so after his death. But his view of courts was realistic. He knew that it was essential to the success of a lawyer to know the law; but he also knew that it didn’t hurt to know the judge. He believed in courts but he didn’t venerate them. Nor did he automatically identify what the courts did or said with "the law."

His mature and most profound reflections on the scope of judicial power and the role of the judiciary in the American constitutional system came in relation to the debate over Dred Scott. By 1858, when the question was at the heart of the political contest in which he was engaged, the Court had ruled, but the question of the ruling’s status was far from resolved. Recall that the ruling was the first invalidation of a federal statute by the Court in more than fifty years, and only the second in the nation’s history. The question of the proper posture toward it for the other branches to adopt was very much alive, and a politician’s position on the question might well determine his electoral fate. Bound up, as it was, with the urgent and divisive issue of slavery, there was no avoiding the issue—despite the best efforts of even the most agile political types, such as Stephen Douglas.

Upon his election as President, Lincoln faced the matter squarely in his Inaugural Address on March 4, 1861. With the specter of civil war looming, the new President, who had denounced the Dred Scott decision repeatedly in his senatorial campaign against Douglas in 1858 as well as in the presidential campaign, turned attention to it in his remarks to the nation.

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

For Lincoln, then, the evil of the Dred Scott decision was not merely the expansion of slavery. It was that the decision threatened to undermine the basic principles of republican government precisely by establishing judicial supremacy in matters of constitutional interpretation. It was not merely that the Court decided the suit in favor of the wrong party. It was that the Court claimed authority to decide for the other branches once and for all what the Constitution required, thus placing them in a position of inferiority and subservience. For the people to "resign their government into the hands of that eminent tribunal" would be, according to Lincoln, the abandonment of democratic self–government and the acquiescence in oligarchic despotism. There is a not–very–faint echo of Jefferson in Lincoln’s First Inaugural.

In office, Lincoln gave effect to his position against judicial supremacy by consistently refusing to treat the Dred Scott decision as creating a rule of law binding on the executive branch. His administration issued passports and other documents to free blacks, thus treating them as citizens of the United States despite the Court’s denial of their status as citizens. He signed legislation that plainly placed restrictions on slavery in the western territories in defiance of Taney’s ruling. For his critics, these actions, combined particularly with his suspension of the writ of habeas corpus, revealed him to be a lawless and tyrannical ruler, one who had no regard for the constitutional limits of his own power. But none can say that he had not made his opposition to judicial supremacy clear before assuming office.

It is ironic that the declaration of judicial supremacy made by the Warren Court came in the context of the Court’s efforts to enforce a ruling in the cause of racial equality and civil rights. The occasion for Lincoln’s declaration of implacable opposition to judicial supremacy had been a decision which, above all others, stained the Court’s reputation as an institution dedicated to, as it says above the entrance to the Marble Temple in Washington, D.C., "equal justice under law." Indeed, the popularity of the Court’s ruling in the Brown case (not, initially at least, in the South, but throughout much of the country and certainly among journalists, professors, and other opinion leaders) no doubt helps to explain why the remarkable dictum in Cooper v. Aaron was so little remarked on at the time, and why few have noted its incompatibility with the principles of Jefferson and Lincoln.

I find that my own students are more than merely surprised to learn about the views of the author of the Declaration of Independence as well as the Great Emancipator. They, too, have drunk in the idea that courts, particularly the Supreme Court (upon which more than a few imagine themselves someday serving), are the ultimate protectors of rights and, as such, should have the ultimate say on constitutional questions. After all, they reason, somebody, or some institution, has to have the final word, or else nothing is ever settled. And students, at least my students, want things to be settled. And the ultimate settler of things—when the things in question are politically ultimate things, constitutional things—should be a nonpolitical body. Politics, my students say, is too messy. Democratic institutions are too prone to passion, prejudice, and foolishness for us to entrust to them matters of constitutional significance. We don’t want to make our rights subject to voting, they say. There needs to be a higher institution to provide a check against the bigots and demagogues of politics—an institution where matters are resolved by calm and rational inquiry and judgment; an institution whose membership is drawn from a narrower, more refined, more highly educated circle; one that is not subject to political retaliation for unpopular decisions of principle. What would have happened, they ask, had the political branches felt themselves free to dispute Brown v. Board of Education?

One imagines Lincoln in the classroom reminding the youngsters that the unchecked power to do good is unavoidably also the unchecked power to do evil. If we like what the Justices did in Brown v. Board, let us not forget what they did in Dred Scott. And there is more to the balance sheet. Was it not the Court, after all, that during the period from 1905 to 1937 repeatedly invalidated both state and federal worker protection laws and social welfare legislation? Did the Justices not read into the due process clause of the Fourteenth Amendment a "right to freedom of contract" in whose name they frustrated the legislative will and usurped the constitutional authority of the elected representatives of the people? This, in any event, is the conventional reading of the history by contemporary liberals and conservatives alike.

And then there is the issue of abortion, surely the most vexing, divisive, and morally charged issue of our own time. Does the Supreme Court’s ruling striking down state prohibitions of abortion in the 1973 cases of Roe v. Wade and Doe v. Bolton belong on the plus side of the Court’s ledger with Brown v. Board or on the minus side with Dred Scott? Does that in turn depend on whether one happens to see abortion as a woman’s right or as a violation of the rights of an unborn child? If so, should one’s view of the proper scope of judicial power, and the legitimacy of judicial supremacy, depend upon the contingent fact that the Court happened to come down the way it did on abortion? After all, the Court could have come down, as the German Constitutional Court did in a 1975 decision interpreting Germany’s Basic Law, in precisely the opposite way—invalidating a legislatively enacted liberalization of abortion. Supporters of the right to abortion who criticize the German decision make exactly the same arguments—the same Lincolnian arguments—against judicial supre­macy that supporters of the right to life who criticize Roe v. Wade make. Their argument is that, to put it in Lincoln’s language, "if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."

Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He is author, most recently, of The Clash of Orthodoxies.

TOPICS: Constitution/Conservatism; Culture/Society; Government
KEYWORDS: brownvboardofed; firstthings; orvillefaubus; prolife; scotus
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STENBERG v. CARHART :Justice Scalia, dissenting. If only for the sake of its own preservation, the Court should return this matter to the people-where the Constitution, by its silence on the subject, left it-and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.

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The unstated premise of those who have adopted this strategy is that the Justices do not understand the nature of abortion, and that if they are forced to confront the scientific and medical facts about the conception and development of the unborn child, they will be compelled to reconsider Roe v. Wade and hold that the unborn child is a constitutional person. To speak in spiritual terms, the critics assume that the problem lies in the intellect rather than the will. That premise is mistaken. Every member of the Court understands what an abortion is. If there was any doubt about this before, the Court’s decision in Stenberg v. Carhart two years ago, striking down Nebraska’s partial-birth abortion law, should have laid that doubt to rest. The majority opinion’s cold and clinical description of various abortion methods betrays no ignorance of the nature of abortion. The Court understands that the purpose and effect of an abortion is to kill an unborn (and, in some instances, a partially born) child. Whatever reservations some members of the Carhart majority may have about the morality of abortion in general or the partial-birth technique in particular, those reservations have not affected their collective judgment that women need abortion to be legal in order for them to be full and equal members of American society. It is that judgment, and not any misunderstanding of what happens in an abortion, that is the source of our present predicament, as even a casual perusal of the Court’s opinion in Casey reaffirming Roe v. Wade would disclose.

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1 posted on 03/04/2003 3:31:18 PM PST by Remedy
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2 posted on 03/04/2003 3:48:24 PM PST by Dumb_Ox
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To: Dumb_Ox; stainlessbanner; 4ConservativeJustices; shuckmaster; aomagrat
3 posted on 03/04/2003 3:52:56 PM PST by billbears (Deo Vindice)
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To: *Pro_Life; patent; toenail
4 posted on 03/04/2003 4:25:03 PM PST by Libertarianize the GOP (Ideas have consequences)
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To: GOPcapitalist
5 posted on 03/04/2003 6:58:37 PM PST by stainlessbanner
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To: Remedy
The occasion for Lincoln?s declaration of implacable opposition to judicial supremacy had been a decision which, above all others, stained the Court?s reputation as an institution dedicated to, as it says above the entrance to the Marble Temple in Washington, D.C., "equal justice under law."

Curious. I do not know of anything on the Supreme Court that identifies it anywhere as a "Marble Temple." There is only one building in Washington, D.C. that does that and it is at the opposite end of the mall.

6 posted on 03/04/2003 7:13:41 PM PST by GOPcapitalist
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To: stainlessbanner
"and just how far it is from the Great Emancipator?s understanding of the legitimate scope of federal judicial power."

Aside from the fact that this meant, to Lincoln, simply IGNORING the rulings you don't like, it is of far greater importance to consider his understanding of the legitimate scope of federal executive power. In that area his motto was essentially "anything goes if I say so."

7 posted on 03/04/2003 7:16:31 PM PST by GOPcapitalist
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To: Dumb_Ox
It is also worth mentioning that Marshall also stated (in Marbury vs Madison)

     "Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? If it is closed upon him and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

     It is also not entirely unworthy of observation that in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution have that rank.

     Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void and that courts, as well as other departments, are bound by that instrument."

Eloquent words, indeed, by Marshall. But words ignored as much by him in subsequent rulings as they are by modern day judicial despots. Our beloved Constitution is of little more value than toilet paper to most judges, including nearly all on our modern day Supreme Courts. They make rulings based on ideology, precedent (regardless of the constitutionality of the precedent), and to satisfy current social whims. Hence, RICO, 2nd Amendment usurpations, no-knock entries into private dwellings, separation of church and state (a remarkable interpretation, indeed), abortion, and the general trashing of all of our historic, moral and liberty landmarks. May they all rot in hell.

8 posted on 03/04/2003 7:41:37 PM PST by PhilipFreneau
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To: Dumb_Ox
9 posted on 03/04/2003 7:50:08 PM PST by tophat9000
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To: Remedy
Nice post.

Wish there were more discussion of it.


Richard F.

10 posted on 03/04/2003 9:14:41 PM PST by rdf
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To: billbears
"It is emphatically the province and duty of the judicial department to say what the law is."

It's amazing that this case involved Madison, the father of the Constitution. His interpretation of it was vastly different than that of the federalist Marshall, who was an activist judge.

Regarding "Lincoln on Judicial Despotism": Lincoln's position was to ignore the ones you disagree with - instead of appealing. So much for his oath to God.

11 posted on 03/05/2003 5:20:32 AM PST by 4CJ ('No legislative act, therefore, contrary to the Constitution, can be valid.' - Alexander Hamilton)
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To: Remedy
12 posted on 03/05/2003 8:12:33 AM PST by WhiskeyPapa (Be copy now to men of grosser blood and teach them how to war!)
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To: GOPcapitalist

>>>Aside from the fact that this meant, to Lincoln, simply IGNORING the rulings you don't like, it is of far greater importance to consider his understanding of the legitimate scope of federal executive power. In that area his motto was essentially "anything goes if I say so."<<<

The Federalist No. 78

May 28, 1788

…all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR… The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them….The judiciary…. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

…from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches;

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

Court excerises judgement, not will or force

JEFFERSON VS. HAMILTON Confrontations That Shaped a Nation, Noble E. Cunningham Jr. New York: St. Martin's Press, 2000

13 posted on 03/06/2003 11:50:02 AM PST by Remedy
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To: Remedy
And your point is???
14 posted on 03/06/2003 2:46:11 PM PST by GOPcapitalist
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To: Coleus
Bump in response to your post
15 posted on 03/16/2003 5:17:24 PM PST by Remedy
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