|
|
|
not to be operative unless sustained by the vote of a ma-
jority, is free from all objection on the score of unconsti-
tutionality, inasmuch as if adopted by the majority it be-
comes the act of the people themselves, who made the ex-
isting1 constitution, and can change it at will, being sov-
ereign. To say that the Constitution of a popular govern-
ment cannot be changed at pleasure by the people them-
selves because the Constitution so proposed to be changed
provides against its own alteration except at a specified
time and in a specified way, is equivalent to saying that
the Constitution is sovereign and not the people. And
your respondents are advised that no clique or handful of
citizens, upon the allegation of their interest as taxpayers
and the peculiar sensibilities of their consciences and
strength of their patriotism, can lawfully call on the ju-
dicial power to restrain the majority of the people from
exercising the prerogative of self-government. Were it
otherwise, the citizens so presuming, or the court acting
on their prayer, would really be paramount and not the
people; and it being, in all cases of the sort, necessary that
the judiciary so acting should derive its authority from
the Constitution sought to be changed, it would necessa-
rily have the power and opportunity thus to perpetuate its
own authority, a power inconsistent not only with public
right and freedom, but with the independence of the ju-
diciary itself and the confidence which all good men desire
so elevated and honorable a depositary of the public in-
terests to enjoy. In this view your respondents are ad-
vised that it is a cardinal maxim of the judiciary to keep
itself aloof from all participation or attempt to partici-
pate in the political department of the government, and
regarding the present effort on the part of the complain-
ants as a plain attempt to violate this principle, and to
convert the tribunals of justice into instruments of party,
your respondents, for these and for the other sufficient
reasons alleged, respectfully pray that the said bill may
be dismissed, and that they may have their costs, &c.
S. T. WALLIS,
ORVILLE HORWITZ,
Solicitors for Respondents.
An affidavit, sworn to before Justice Hayward by the
20
|
|
|
|
 |
