An Essay on Judicial Power and Unconstitutional Legislation: Being a Commentary on Parts of the Constitution of the United StatesThe Lawbook Exchange, Ltd., 2005 - 415 стор. 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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... law on the subject continued , Division A. Bowyer's views on the U. S. Constitution , 110 . 113 114 Division B. Mandate ... Constitutions of Clarendon , 115 118 121 122 123 127 129 134 135 137 Division C. English statutes held void as ...
... law on the subject continued , Division A. Bowyer's views on the U. S. Constitution , 110 . 113 114 Division B. Mandate ... Constitutions of Clarendon , 115 118 121 122 123 127 129 134 135 137 Division C. English statutes held void as ...
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Сторінка 136
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Зміст
1 | |
24 | |
42 | |
Swiss public law on the subject | 84 |
Division E Observations upon these cases | 102 |
The jus legum of the Roman republic | 105 |
The Canon law in England on the subject | 115 |
Their intentions as to the State courts | 144 |
Trevett v Weeden | 234 |
Bayard v Singleton | 240 |
The foregoing cases further considered | 266 |
PART III | 272 |
Nos 38 Certain acts of the Federal congress concerning | 284 |
Origin of the pursuance clause of paragraph 2 | 290 |
Same subject continued | 308 |
The Framers intentions as to the Supreme Court | 331 |
The doctrine concerning void statutes | 171 |
The effect of his view in legal history | 177 |
Legislation for the colonies by prerogative | 190 |
Colonial laws void for repugnancy to the laws of England | 197 |
PART II | 218 |
Appeals from the inferior U S courts to the Supreme | 350 |
APPENDICES | 361 |
Appendix No 1 | 369 |
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An Essay on Judicial Power and Unconstitutional Legislation: A Commentary on ... Brinton Coxe Попередній перегляд недоступний - 2017 |
Загальні терміни та фрази
according act of Congress act of parliament American appeal Assembly authority Bayard binding Blackstone's Canon law chapter church Coke's colonial law Commentary Common law common seal concerning confederation conflicts consti constitutions of Clarendon contrary convention decided decision declared doctrine draft enacted Essay execution exercise existing express expressly extrajudicial foregoing Framers held important intentions judges judicial competency judicial power judiciary jurisdiction Justice king in council king's land law of nations laws of England Lechmere legislative power letter of Congress letters patent Madison Marbury matter nonobstante clause North Carolina null and void observed opinion paragraph petitioner prerogative proposition pursuance question relation repeal repugnant resolution Rhode Island Roman seal Superior Court thereof things tion treaty of peace Trevett trial by jury tribunals tution U. S. constitution U. S. Supreme Court unconstitutional Union United unwritten validity Varnum vigour Weeden words written constitution
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Сторінка 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.
Сторінка 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.
Сторінка 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.
Сторінка 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.
Сторінка 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.
Сторінка 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...
Сторінка 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?
Сторінка 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...
Сторінка 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.
Сторінка 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.