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The Supreme Court and the Constitution1

Published online by Cambridge University Press:  01 August 2014

Alan H. Monroe
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Extract

Ever since the famous case of Marbury v. Madison in 1803, the United States Supreme Court has exercised the power of declaring acts of Congress unconstitutional and of refusing to enforce them as law. From the beginning, the exercise of this power has been the subject of great controversies as to both theory and practice. It has been assailed as subverting the true nature of our government. It has been stigmatized as the foundation of a judicial obligarchy. It has been attacked as a means for the nullification of the popular will as expressed in Congress. It will be the purpose of this paper, therefore, to inquire into the use of this power in relation to acts of Congress with especial regard to (1) the criticisms that have been made at various times throughout American history, and (2) the proposals that have been made to modify the exercise of this power.

Type
Research Article
Information
American Political Science Review , Volume 18 , Issue 4 , November 1924 , pp. 737 - 759
Copyright
Copyright © American Political Science Association 1924

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Footnotes

1

This paper was awarded the first prize in the Harris Political Science prize essay contest in 1924.

References

2 Annals of Congress, 1st Congress, 1st Session, June 16 to 22, 1789, especially pp. 492, 596.

3 Ibid, p. 479.

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6 Annals of Congress, 6th Congress, 1st Session, Mar. 5, 1800.

7 Ibid, Senate Jan. 8 to Feb. 3, 1802; also House Feb. 16 to 20.

8 Ibid, Senate Feb. 3, 1802, p. 178.

9 National Intelligencer, Feb. 12, 1802.

10 Cf. Beveridge, Life of John Marshall.

11 U. S. v. Benjamin More, U. S. Circuit Court, D. C. Fall Term, 1803.

12 National Intelligencer, Aug. 5, 1803.

13 Annals of Congress, 7th Congress, 1st Session, Jan 12, 1802, apparently referring to Yale Todd case, 1794, concerning which the facts are uncertain—not completely reported in U. S. reports, mentioned in U. S. v. Fereira, 13 Howard 52 (1851).

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16 Senate Journal, July 1832, p. 451.

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28 Ibid, 40th Congress, 2nd Session, pp. 479–80.

29 Ex Parte McCardle, 6 Wall. 318, 7 Wall. 506.

30 Congressional Globe, 41st Congress, 2nd Session, p. 87 ff.

31 Ibid, 40th Congress, 2nd Session, pp. 479–80.

32 Ibid, debates in House and Senate, Mar. 12, 14, and 25, 1868.

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39 Congressional Record, 48th Congress, 1st Session, Mar. 10, 1884.

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50 Ibid, 67th Congress, 4th Session, Jan. 27, 1923.

51 Springfield Republican, April 11, 1923, quoting Gompers.

52 Congressional Record, 67th Congress, 2nd Session, Feb. 19, 1922; New York Times, Feb. 18, 1922.

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56 Congressional Globe, 41st Congress, 2nd Session, p. 2.

57 Congressional Globe, 40th Congress, 1st Session, p. 59.

58 Ibid, p. 655.

59 Ibid, 40th Congress, 2nd Session, pp. 1204, 1428, 1621.

60 Ibid, 41st Congress, 2nd Session, pp. 3, 27, 45, 96, 152, 167 ff.

61 Annals of Congress, 7th Congress, 1st Session, p. 783.

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66 Warren, III, 425, quoting Gov. Pennoyer.

67 Congressional Record, 67 Cong. 4th Sess., Jan 27, 1923.

68 Hunt, Gaillard, Madison's Writings, (1906–1910) IX, 447Google Scholar (letter to Roane, Sept. 1819); Ford, P. L., Writings of Thomas Jefferson, X, 223Google Scholar, (letter to Johnson, Oct. 1822).

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70 Annals of Congress, 17th Congress, 1st Session, Dec. 12, 1821, Jan. 14 and 15, 1822.

71 McLaughlin, Dodd, Jernegan, Scott, Source Problems in American History, (1918) p. 167 ff.Google Scholar quoting the Records of the Federal Convention, II, 298.

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75 Springfield Republican, April 11, 1923.

76 Congressional Record, 67th Congress, 4th Session, Jan. 27, 1923.

77 Congressional Record, 67th Congress, 2nd Session, p. 9073.

78 Congressional Digest, June 1923, quoting Ritchie.

79 New York Times, April 15, 1923, quoting Shields.

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81 Congressional Record, 68th Congress, 1st Session, Dec. 28, 1923.

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83 Congressional Record, 67th Congress, 4th Session, Jan. 27, 1923, speech by Representative Frear, Wisconsin.

84 Ladd, E. F. (U. S. Senator, North Dakota), article in the Dearborn Independent, June 2, 1923.Google Scholar

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86 Ransom, W. L., Majority Rule and the Judiciary, (1912).Google Scholar

87 Annals of Congress, 18th Congress, 1st Session, Dec. 10, 1823.

88 Annals of Congress, 18th Congress, let Session, Mar. 11, 1824.

89 Ibid, May 4, 1824.

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91 Ibid, pp. 96, 478 ff, 489.

92 Warren, III, 188–193.

93 Congressional Globe, 40th Congress, 2nd Session, p. 503.

94 Congressional Record, 66th Congress, 3rd Session, Apr. 11, 1921.

95 Ibid, 67th Congress, 2nd Session, Jan. 5, 1922.

96 Ibid, 67th Congress, 4th Session, Jan. 27, 1923.

97 Congressional Record, 67th Congress, 4th Session, Feb. 5, 1923.

98 Congressional Digest, June, 1923, quoting public letter of Senator Feas dated March 26, 1923.

99 Dearborn Independent, June 2, 1923, article by Senator Ladd.

100 Chicago Tribune, Nov. 22, 1923—summary of article by Clarke. See Journal of Am. Bar. Assn.

101 Congressional Digest, June, 1923, quoting Senator Fess in a letter, April 11, 1923.

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103 Congressional Record, 67th Congress, 2nd Session, Feb. 19, 1922.

104 Congressional Record, 67th Congress, 4th Session, Jan. 27, 1923, Representative Frear points out several cases in which this point has been emphasized in the opinions of the Supreme Court by such men as Marshall, Chase, Waite.

105 Ibid, 2nd Session, Jan. 6, 1922.

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