Why should not the National Judiciary be made answerable to the people?
Albert Beveridge
The Public Record
Albert Jeremiah Beveridge was an American historian and United States senator from Indiana. He was an intellectual leader of the Progressive Era and a biographer of Chief Justice John Marshall and President Abraham Lincoln.
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No fair-minded man can deny that the judges exercise legislative power.
If he can declare the laws of a State unconstitutional and void, and, in one moment, subvert the deliberate policy of that State for twenty-four years, as in Kentucky, affecting its whole landed property, ... is not this the exercise of…
How absurd is the entire theory of judicial independence!
Why should not Congress as properly declare the decisions of the National courts unconstitutional as that the courts should do the same thing to acts of Congress or laws of States?
Think of it as a matter of plain common sense--"forty-eight Senators, one hundred and eighty-eight Representatives, and the President of the United States, all sworn to maintain the Constitution, have concurred in the sentiment that the…
Seven judges, irresponsible to any earthly tribunal for their decisions, revise the measure, declare it unconstitutional, and effectually destroy its operation.
The decision has been considered as another act of judicial usurpation; but the sentiment has been avowed that if this be the constitution, it is better to break that instrument than submit to the principle....
Thus again stands out the alliance of the various forces of Localism--slavery, State banking, debtors' relief laws, opposition to protective tariffs--which confronted the Supreme Court with threats of physical resistance to its decrees and…
Marshall flatly declares that Congress can invest the inferior National courts with any jurisdiction whatsoever which the Constitution does not prohibit.
It marks another stage in the development of his Constitutional principle that the National Government not only has all powers expressly granted, but also all powers not expressly prohibited.
In this fashion Marshall leads up to the serious National problem of the hour--the disposition of some States, revealed by threats and sometimes carried into execution, to interfere with the officers of the National Government in the…
Addressing himself still more directly to those who were flouting the authority of the Nation and preaching resistance to it, Marshall uses stern language.
Here, in judicial language, was that rebuke of the spirit of Nullification which Andrew Jackson was soon to repeat in words that rang throughout the land and which still quicken the pulses of Americans.
The Republic of the United States shall have dominion from sea to sea, ... from the river Columbia to the ends of the earth.
The Supreme court ... have rendered the constitution the sport of legal ingenuity....
Its meaning is locked up from the profane vulgar, and distributed only by the high priests of the temple." (Ib.
They demand the loftiest range of talents and learning and a soul of Roman purity and firmness.
State Sovereignty standing for exclusive privileges as chief combatant, with Free Trade and Slavery as brothers in arms, confronted Nationalism, standing at that moment for the power of the Nation over all commerce as the principal…
The earliest exposition of the commerce clause of the Constitution by any eminent National authority, therefore, came from John Marshall.
If New York can grant a monopoly over New York Bay, so can Virginia over the entrance of the Chesapeake, so can Massachusetts over the bay bearing the name and under the jurisdiction of that State.
The authority to forbid foreign ships to enter our ports comes exclusively from the commerce clause.
If this power over vessels is not in Congress, where does it reside?
There is not, in the Constitution, one syllable on the subject of navigation.
And yet, every power that pertains to navigation has been ... rightfully exercised by Congress.
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