Legal Commentary

?A Sickly Brood of Judicial Fancies?

By Eugene Volokh

From Martin v. Bear, 5 Penn. L.J. Reps. 17 (Ct. Com. Pl. 1851), the court rejected ?the suggestion that courts of original jurisdiction ought not to investigate constitutional questions, but should, without scruple, execute every act of the legislature, however unjust and unconstitutional, and thus leave the injured party to seek his remedy, as best he may, by an application the Supreme Court,? and in the process wrote:

The courts of original jurisdiction should regularly dispose of all questions which arise before them; and the court of review, in its appellate jurisdiction, should not interpose until the decision has been pronounced by the court below. The conceit which inverts this order of proceeding belongs to a sickly brood of judicial fancies which are destined to be short-lived.... Their folly would be amusing, but for their mischievous tendency, and their constitutional infirmity would excite commiseration, but for the criminal abandonment of official duty to which they tend.

I thought this was a nice bit of rhetoric, and wanted to pass it along.

Full post as published by The Volokh Conspiracy on June 09, 2010 (boomark / email).