INTRODUCTION. CHAPTER I. Of the subject of this Essay and matters related thereto. The subject of this Essay is the relation of judicial power to unconstitutional legislation according to the text of the constitution of the United States. The constitutional relation of judicial power to unconstitutional legislation is to be considered in connection with the particular texts of that instrument bearing thereupon. This Essay is thus concerned with any legislation conflicting with the constitution of the United States, whether it be such as is made by Congress or such as proceeds in any form from a state. It is concerned with the judiciary of the United States and the judiciaries of the several states, in so far as any of the courts and judges thereof have constitutional relations to such unconstitutional legislation. The chief purpose of the writer is to show that the constitution of the United States contains express texts provid ing for judicial competency to decide questioned legislation to be constitutional or unconstitutional and to hold it valid or void accordingly. Subordinate to this chief purpose are four others. The first of these subordinate purposes is to show that the Framers of the constitution, according to the extant records of their debates and proceedings at Philadelphia in 1787, expressly intended to provide for the said judicial competency as to such unconstitutional legislation. The second subordinate purpose is to point out and comment upon certain texts in federal documents older than the constitution, which are historical antecedents of the constitutional texts concerned. The third subordinate purpose is to examine the history of the relation of judicial power to unconstitutional legislation in certain of the states before and during the confederation, and to show that the judicial competency under discussion is an American institution older than the constitution of the United States. A fourth subordinate purpose is to make an historical investigation of foreign laws in order to show the true place of the judicial competency aforesaid in the legal history and comparative jurisprudence of Europe and America. This investigation will include the laws of certain European states and unions of states, and an examination of the Roman and Canon laws. The writer's purposes have been enumerated in an order which is the inverse of that in which he will endeavour to execute them. In accordance with them, this Essay will be divided into appropriate divisions and subdivisions, besides the Introduction. Of the special reasons for a new discussion of the subject. Discussions of the whole, or any part, of the text of the constitution of the United States may be assumed at any time to be proper. This general reason makes it perfectly proper now to discuss afresh the subject of the relation of judicial power to unconstitutional legislation according to the text of that constitution. There are, however, at the present time extraordinary reasons for a fresh discussion of the subject. Some of these relate to the judicial history of the constitution from the beginning, and are concerned with all the decisions in which the Supreme Court has pronounced against the constitutionality of legislation. Others relate especially to the recent judicial history of the constitution and are concerned with but one decision of the Supreme Court, and have their origin in it and the controversy caused by it. The decision here alluded to is that made in the case of Juilliard v. Greenman, or more precisely that part thereof which relates to the constructive powers of Congress.* * Juilliard v. Greenman is reported in 110 U. S. Reports, 421-470. |