Eakins v. Raub

Eakins v. Raub - Document 80 Eakins v. Raub 12 Serg. &...

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Document 80 Eakins v. Raub Gibson , J. . . . It seems to me there is a plain difference, hitherto unnoticed, between acts that are repugnant to the constitution of the particular state, and acts that are repugnant to the constitution of the United States; my opinion being, that the judiciary is bound to execute the former, but not the latter. I shall hereafter attempt to explain this difference, by pointing out the particular provisions in the constitution of the United States on which it depends. I am aware, that a right to declare all unconstitutional acts void, without distinction as to either constitution, is generally held as a professional dogma; but, I apprehend rather as a matter of faith than of reason. I admit that I once embraced the same doctrine, but without examination, and I shall therefore state the arguments that impelled me to abandon it, with great respect for those by whom it is still maintained. But I may premise, that it is not a little remarkable, that although the right in question has all along been claimed by the judiciary, no judge has ventured to discuss it, except Chief Justice Marshall , (in Marbury v. Madison, 1 Cranch, 176,) and if the argument of a jurist so distinguished for the strength of his ratiocinative powers to be found inconclusive, it may fairly be set down to the weakness of the position which he attempts to defend. Si Pergama dextra defendi potuit, etiam hac defensa fuisset . In saying this, I do not overlook the opinion of Judge Patterson , in Vanhorne v. Dorrance, (2 Dall. 307,) which abounds with beautiful figures in illustration of his doctrine; but, without intending disrespect, I submit that metaphorical illustration is one thing and argument another. Now, in questions of this sort, precedents ought to go for absolutely nothing. The constitution is a collection of fundamental laws, not to be departed from in practice nor altered by judicial decision, and in the construction of it, nothing would be so alarming as the doctrine of communis error, which offers a ready justification for every usurpation that has not been resisted in limine . Instead, therefore, of resting on the fact, that the right in question has universally been assumed by the American courts, the judge who asserts it ought to be prepared to maintain it on the principles of the constitution. I begin, then, by observing that in this country, the powers of the judiciary are divisible into those that are POLITICAL and those that are purely CIVIL . Every power by which one organ of the government is enabled to control another, or to exert an influence over its acts, is a political power. The political powers of the judiciary are extraordinary and adventitious; such, for instance, as are derived from certain peculiar provisions in the constitution of the United States, of which hereafter: and they are derived, by direct grant, from the common fountain of all political power. On the other hand, its civil, are its
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Eakins v. Raub - Document 80 Eakins v. Raub 12 Serg. &...

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