An Essay on Judicial Power and Unconstitutional Legislation: Being a Commentary on Parts of the Constitution of the United States

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The Lawbook Exchange, Ltd., 2005 - 415 էջ
Coxe's main argument is that the "Constitution contains express texts providing for judicial competency to decide questioned legislation to be constitutional or unconstitutional and to hold it valid or void accordingly" (4). There are four subordinate arguments: First, that the framers of the constitution specifically granted the courts the power to hold a law unconstitutional by dint of the Supremacy Clause and by Article III, Section 2 defining judicial power. Second, that documents written before the constitution were influential in framing the text and establishing the idea of judicial review. The third looks at the era before and during the confederation with an eye toward the court's power to rule on constitutionality. The fourth argument finds analogies and precedents in foreign law, including Roman and Canon law.

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Lechmere 197208211212213
172
Results of examination of English law
178
Routledge Low v
186
Legislation for the colonies by prerogative
187
United States 9 20
190
Colonial laws void for repugnancy to the laws of England
197
Conclusion as to the English law
214
Castlaker Prior of v Dean of St Stephens 147 151 152 153
221

Marbury v Madison
54
HISTORICAL COMMENTARY
71
Swiss public law on the subject
84
Middleton Bowman v 203
94
Dutchess of Hamiltons case 228
99
Bank of IT S v Deveaux 173
104
Roman law on the subject
105
The Roman law on the subject continued
113
Weeden Trevett v 119 155 160 167 177 178 215 220 222 234 235
119
Singleton 68 69 120 220 222 240 241 248 249 263 264
120
The Canon law on the subject
121
Bota Romana Case in the
123
Bologna City of Anthony Ghisilardi v
130
Peck
132
The Canon law in England on the subject
134
an Abbot 153 164 171 176
153
The powers of parliament before 1688
165
The doctrine concerning void statutes
171
Griswold Hepburn v 9 21 40
222
Rutgers v Waddington
223
Trevett v Weeden
234
Bayard v Singleton
248
The foregoing cases further considered
267
The historical antecedent of the beginning of section 2 Ill
291
Their intentions as to the State courts
298
Hylton Ware v 53 54 68 69 70
301
Same subject continued
308
The Framers intentions as to the U S Supreme Court
325
The Framers intentions as to the Supreme Court
336
Their intentions as to appeals from the State courts
342
Appeals from the inferior IT S courts to the Supreme
355
APPENDICES
361
Appendix No 3 Seepage 206 Opinion of Charles E Hildeburn Esq
369
Appendix No 5 Seepage 213 The relation of judicial power to uncon
383
Sandford Dred Scott v 10 19 20 21
402
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Common terms and phrases

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Էջ 56 - Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
Էջ 57 - So if a law be in opposition to the Constitution ; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
Էջ 56 - To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained ? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.
Էջ 66 - I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as , according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States. So help me God.
Էջ 185 - Any Colonial Law which is or shall be in any respect repugnant to the Provisions of any Act of Parliament extending to the Colony to which such Law may relate, or repugnant to any Order or Regulation made under Authority of such Act of Parliament, or having in the Colony the Force and Effect of such Act, shall be read subject to such Act, Order or Regulation, and shall, to the Extent of such Repugnancy, but not otherwise, be and remain absolutely void and inoperative.
Էջ 38 - Congress a power to lay and collect taxes, duties, imposts, and excises ; to pay the debts, and provide for the common defence, and general welfare of the United States, and to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the Government of the United States...
Էջ 62 - Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?
Էջ 55 - That the people have an original right to establish for their future government such principles as in their opinion shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion, nor can it, nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed is supreme and can seldom act, they are designed to...
Էջ 58 - This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.
Էջ 243 - The Constitution is either a superior paramount law unchangeable by ordinary means, or it is on a level with ordinary legislative Acts, and like other Acts is alterable when the Legislature shall please to alter it. If the former part of the alternative be true then a legislative Act contrary to the Constitution is not law. If the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

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