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Quotation of the Day…

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… is from pages 216-217 of the 1976 Liberty Fund edition of Henry Sumner Maine [2]’s 1885 volume, Popular Government [3] (footnote deleted):

The Supreme Court of the United States … is not only a most interesting but a virtually unique creation of the founders of the Constitution.  The functions which the Judges of this Court have to discharge under provisions of the Constitution arise primarily from its very nature.  The Executive and Legislative authorities of the United States have no powers, except such as are expressly conferred on them by the Constitution itself; and, on the other hand, the several States are forbidden by the Constitution to do certain acts and to pass certain laws.  What then is to be done if these limitations of power are transgressed by any State, or by the United States?  The duty of annulling such usurpations is confided by the Third Article of the Constitution to the Supreme Court, and to such inferior Courts as Congress may from time to time ordain and establish.

DBx: I’m one day tardy in marking Constitution Day [4] (September 17th) with an appropriate quotation.  The above passage from Maine is appropriate.  In this passage, Maine clearly and concisely explains that the national government of the United States has no powers under the Constitution but those that are expressly delegated to it in that document [5].  Alas, for anyone unfamiliar with the United States Constitution but familiar with the range of powers currently exercised by the national government, those Constitutionally delegated powers are surprisingly few and limited.  This aspect of the Constitution – the aspect that denies to the national government any powers not expressly delegated to it by the Constitution – is effectively null and void.

“Progressives” and other fans of discretionary government of course are pleased that the U.S. government is no longer in practice bound to exercise only those powers expressly delegated to it by the Constitution.  Yet conservative jurists, quite ironically, have played an unwitting role in this destruction of constitutional restraints.  In their justified quest to prevent courts from exercising powers beyond those that properly belong to the judiciary, too many conservative jurists (and legal scholars) overshot.  The restraints on the judiciary that they advocate are so severe that, under these restraints, the judiciary is neutered in its role in preventing the legislative and executive branches of the national and the state governments from exercising powers that, in the case of the national government, are not delegated to it, and, in the case of the state governments, are denied to them.

In short, in their attempt to keep judicial powers within constitutional limits, too many American conservative jurists forgot about the role of the judiciary in keeping executive and legislative powers within constitutional limits.

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