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Volume XX VII] M
POLITICAL SCIENCE
QUARTERLY
THE SUPREME COURT-USURPER OR GRANTEE?'
DID the framers of the federal Constitution intend that the
Supreme Court should pass upon the constitutionality
of acts of Congress? The emphatic negative recently
given to this question by legal writers of respectable authority 2
has put the sanction of the guild on the popular notion that the
nullification of statutes by the federal judiciary is warranted
neither by the letter nor by the spirit of the supreme law of the
land and is, therefore, rank usurpation. Thus the color of
legality, so highly prized by revolutionaries as well as by
apostles of law and order, is given to a movement designed to
strip the courts of their great political function. While the
desirability of judicial control over legislation may be considered
by practical men entirely apart from its historical origins, the
attitude of those.who drafted the Constitution surely cannot be
regarded as a matter solely of antiquarian interest. Indeed,
the eagerness with which the views of the Fathers have been
marshalled in support of the attack upon judicial control proves
I The author desires to acknowledge his indebtedness to Mr. Birl E. Shultz, a
graduate student in the School of Political Science of Columbia University, for pre-
paring a bibliographical note on the writings of members of the Convention and for
special researches in the papers of Roger Sherman and of John Dickinson.
I Cf. Chief Justice Walter Clark, of North Carolina, Address before the Law De-
partment of the University of Pennsylvania, April 27, 1906; reprinted in Congres-
sional Record, July 31, 1911. Dean William Trickett, of the Dickinson Law School,
Judicial Dispensation from Congressional Statutes, American Law Review, vol.
xli, pp. 65 etsee. L. B. Boudin, of the New York Bar, Government by Judiciary,
POLITICAL SCIENCE QUARTERLY, Vol. xxVi (1911), pp. 238 et seq. Gilbert Roe, of
the New York Bar, Our Judicial Oligarchy (second article), La Follette's Weekly
Magazine, vol. iii, no. 25, PP- 7-9, June 24, 1911.
Marck, 1pl2
[Nmber I](ViewImageLocal?handle=hein.journals/pclscceqry27&div=1&collection=&method=preview&ext=.png&size=3)
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