Excerpt from The Confict Over Judicial Powers in the United States to 1870
This essay is the outgrowth of a special study of one of the problems of constitutional law begun at Ursinus College in 1903, under the direction of Dr. J. Lynn Barnard, now of the School of Pedagogy, Philadelphia. The main features of the monograph were planned and partially developed while pursuing the courses in constitutional law offered by Professor John W.Burgess, Dean of the Faculty of Political Science of Columbia University. The search has been continued in the reports of judicial decisions, executive messages, legislative debates and resolutions and newspaper comment for public sentiment bearing on the right of the judiciary to declare legislative acts void.
American constitutional history reveals an almost continuous conflict over the assertion of this right by the judiciary in the United States. The controversy originated at the time when the rising nationality in America found itself at the parting of the ways - toward a supreme power in the legislature, or toward a modified form of supremacy in courts of justice. The contest, begun when judges refused to execute legislative acts which they considered contrary to fundamental laws or constitutions, has been one of the foremost problems in the practical working of our federal government, and, according to the recent indications, is likely to assume greater importance in the future.
This study aims to trace the sentiment relative to the exercise of judicial authority prior to 1870. The purpose has been to show the gradual development of the extraordinary powers of the judiciary in the United States, and to present a brief analysis of representative opinions on the conflict involved in this development.
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