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The Judicial Veto and Political Democracy1
Published online by Cambridge University Press: 02 September 2013
Extract
Since the United States has theoretically no police power, and since the federal Constitution is essentially a political document, the national judiciary must in the main use political clauses of the organic law as the basis for nullifying statutes. While clauses of this nature are thus frequently made to serve as a basis for the decisions, the great majority of statutes nullified by the United States supreme court have pertained in fact to economic and social rather than political matters. While the court has nullified in all about thirty-three federal statutes, the scope of this discussion will permit of a summary only of the more important statutes which have directly affected political questions.
The political principle of separation of powers has afforded the basis for the nullification of seven federal statutes. All these decisions have, however, affected the power and jurisdiction of the court itself; and in every jurisdictional case, with but one unimportant exception, the court has refused to accept authority which congress attempted to bestow upon it.
While the court has thus almost uniformly limited its authority in the jurisdictional cases, in one instance the principle promulgated was most momentous—the one laid down in Marbury vs. Madison.
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- Copyright © American Political Science Association 1916
References
2 E.g., Employers' Liability Cases, 207 U. S. 463; Adair vs. U. S., 208 U. S. 161; Keller vs. U. S., 213 U. S. 138.
3 U. S. vs. Todd, 13 How. 52; Marbury vs. Madison, 1 Cr. 137; Gordon vs. U. S., 2 Wall, 561 & 117 U. S. 697; The Alicia, 7 Wall. 571; U. S. vs. Klein, 13 Wall. 128; U. S. vs. Evans, 213 U. S. 297; Muskrat vs. U. S., 219 U. S., 346.
4 U. S. vs. Dewitt, 9 Wall 41; The Collectors vs. Day, 11 Wall. 113; U. S. vs. Railroad Co., 17 Wall. 322; U. S. vs. Reese, 92 U. S. 214; U. S. vs. Fox, 95 U. S. 670; Trade Mark Cases, 100 U. S. 82; U. S. vs. Harris, 106 U. S. 629; Civil Rights Cases, 109 U. S. 3; Baldwin vs. Franks, 120 U. S. 678; James vs. Bowman, 190 U. S. 127; Employers' Liability Cases, 207 U. S. 463; Keller vs. U. S., 213 U. S. 138.
5 Other cases, coming under this classification, are omitted because they have but little bearing on political matters in effect, though they may have been based on political clauses of the constitution.
6 19 How. 393.
7 Hepburn vs. Griswold, 8 Wall. 603; Legal Tender cases, 11 Wall. 682; Juillard vs. Greenman, 110 U. S. 421.
8 Pollock vs. Farmers Loan & Trust Co., 157 U. S. 429 & 158 U. S. 601.
9 Springer vs. U. S., 102 U. S. 586.
10 The taxing powers of the States have at times been checked and at other times regulated and the issues have become party issues. (See State Bank vs. Knoop, 16 How. 369, and the other Ohio bank cases.) Because of the interstate commerce clause the power of the States to regulate the liquor traffic has been interfered with and the issue again became partisan in some instances. It is also well known that the States have been constantly checked in their efforts to regulate common carriers and control their rates but the courts in their decisions on these questions are not passing on matters which are in themselves political.
11 See White vs. Multnomah Co., 10 Pac. 484, (Oregon).
12 See Attorney General vs. Detroit, 44 N. W. 388, (Mich.). Dagget vs. Hudson, 3 N. E. 538 (Ohio); Dells vs. Kennedy, 6 N. W. 246 (Wis.); State vs. Conner, 34 N. W. 499, (Neb.).
13 Eaton vs. Brown, 31 Pac. 250, (Cal.); Moyer vs. Van Devanter, 41 Pac. 60, (Wash.).
14 Kenneweg vs. Commissioners, 102 Md. 119.
15 Nebraska (State vs. Drexel, 105 N. W. 174); North Dakota (Johnson vs. Grand Forks Co., 113 N. W. 1071), and Michigan (Dapper vs. Smith, 101 N. W. 60) and a few other states have had primary laws nullified in whole or in part, but these were because of technical difficulties or because of certain features of the statutes which did not affect the merits of the question.
16 Eaton vs. Brown, 31 Pac. 250.
17 Marsh vs. Hanley, 43 Pac. 975.
18 Spier vs. Baker, 52 Pac. 659.
19 Britton vs. Board of Commissioners, 61 Pac. 1115.
20 People vs. Election Commissioners, 221 Ill. 9.
21 Rouse vs. Thompson, 228 Ill. 522.
22 People vs. Strassheim, 240 Ill. 279.
23 People vs. Deneen, 247 Ill. 289.
24 Smith vs. Good, 34 F. R. 204.
25 Knight vs. Shelton, 134 F. R. 423.
26 See Livermore vs. Waite, 36 Pac. 424 (Cal.).
27 Dayton vs. St. Paul, 22 Min. 400, Green vs. Board of Canvassers, 47 Pac. 259, (Idaho) holding a majority of votes cast on amendment to be sufficient. State vs. Brooks, 99 Pac. 874, (Wyoming) for opposite view. In this case about 37,000 votes were cast at the election, 12,000 for the amendment and 1300 against but the court held the amendment had not been adopted.
28 State vs. Swift, 69 Ind. 505; Re Denny, 156 Ind. 104.
29 Ellingham vs. Dye, 178 Ind. 336.
30 Re Boswell, 179 Ind. 292.
31 Pacific States Telephone Co. vs. Oregon, 223 U. S. 118; Kiernan vs. Portland, 223 U. S. 151.
32 Originally at least four States objected to this, Indiana, Iowa, California, Texas; but the decisions in these States objecting to the local referendum have been either definitely or practically over-ruled.
33 Wright vs. Cunningham, 91 S. W. 293, (1905).
34 See Barto vs. Himrod, 4 Seid. 483; Santo vs. State, 2 Iowa 165; State vs. Hayes, 61 N. H. 264.
35 State vs. Parker, 26 Vt. 357.
36 State vs. O'Neil, 24 Wis. 149; Smith vs. Janesville, 26 Wis. 291; State vs. Frear, 142 Wis., 320.
37 Bonner vs. Belsterling, 138 S. W. 571.