Eakin v Raub

Eakin v Raub - 1 Eakin et al V Raub et al April 16th 1825...

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1 Eakin et al. V. Raub et al. April 16 th , 1825. GIBSON, J., dissenting. 13*…. 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 constitutional 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) and if the argument of a jurist so distinguished for the strength of his ratiocinative powers be found inconclusive, it may fairly be set down to the weakness of the position which he attempts to defend …. 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 affords 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. *15 ….The constitution and the right of the legislature to pass the act, may be in collision; but is that a legitimate subject for judicial determination? If it be, the judiciary must be a peculiar organ, to revise the proceedings of the legislature, and to correct its mistakes; and in what part of the constitution are we to look for this proud preeminence? Viewing the manner in the opposite direction, what would be thought of an act of
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This note was uploaded on 02/14/2010 for the course ENG 2304 taught by Professor Allman during the Spring '09 term at Baylor.

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Eakin v Raub - 1 Eakin et al V Raub et al April 16th 1825...

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