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POWER OF FEDERAL JUDICIARY OVER

LEGISLATION

POWER OF FEDERAL JUDICIARY

OVER LEGISLATION

INTRODUCTION

"In truth there is at this time more hostility to the federal judiciary, than to any other organ of the government.”

(JEFFERSON TO JUDGE WILLIAM JOHNSON, March 4, 1823.)

CUR

'URRENT discussion of judicial recall and recall

of judicial decisions marks the recrudescence of an old heresy. Angered by the unflinching determination of Marshall and his associates on the bench to hold void not only acts of Congress but also State enactments at war with the Constitution, Jefferson asserted the judiciary to be despotic and labored for years to undermine it. "The constitution," he wrote to Judge Spencer Roane, “on this hypothesis is a mere thing of wax which they may twist and shape into any form they please.” At Jefferson's instigation Roane, in 1821, published stinging criticisms of the Court in the Richmond Enquirer under the name “Algernon Sidney."

Resentment against judicial power had previously

I

taken shape in the Virginia Resolutions and the Ken•tucky Resolutions. It led John Randolph to introduce in Congress in March, 1805, a resolution for a constitutional amendment making Federal judges removable by the President upon the "joint address of both houses of Congress. "I The resolution was defeated, but was renewed, in substantially the same form, in 1806, 1807, 1811, and 1816, with the added proposition that judges should hold for a term of years, not for life. In 1822 Richard M. Johnson of Kentucky offered in the Senate a resolution for an amendment to the Constitution, which is as follows:

That in all controversies where the judicial power of the United States shall be so construed as to extend to any case in law or equity, arising under the constitution, the laws of the United States, or treaties made or which shall be made under their authority and to which a state shall be a party, and in all controversies in which a state may desire to become a party, in consequence of having the constitution or laws of such state questioned, the senate of the United States shall have appellate jurisdiction.

Johnson's resolution having failed, resolutions were from time to time thereafter offered in the House for an amendment limiting the terms of Federal judges.

In January, 1838, the Democratic Review thus summed up the conduct of the Court under Marshall's leadership:

Nearly every state of the Union, in turn, has been brought

History of U. S., by Henry Adams, iv., 205.

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