The Supreme Court and Unconstitutional Legislation (Classic Reprint)

Excerpt from The Supreme Court and Unconstitutional Legislation

Although discussion of the unique position of the courts in this country has not been confined to recent times, probably never before has the question reached such an acute stage as at present, nor given rise to so much serious discussion as to the advisability of limiting some of the more important powers of the judiciary. An awakening consciousness of our social, economic and political defects and a growing belief that these can be lessened by increased governmental action has led to various reformatory measures on the part of the legisla tive and administrative branches. Whether wisely or uh wisely we are not here discussing, but the fact remains that the courts, in some instances, have checked these legisla tive and administrative activities through their power to declare statutes and ordinances unconstitutional and hence null and void. This action on the part of the judiciary has caused wide-spread comment and led to proposals to limit, by various means, this power of the courts. In studying this question the author was struck with the fact that, although the courts are held responsi ble for many acts both wise and unwise, and individual cases are cited to prove the contentions set forth, yet no systematic attempt has been made to ascertain what as a whole the judiciary has accomplished by its power to declare statutes unconstitutional. It was to supply this omission that this study in one branch of the subject was undertaken.

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