91
In determining the constitutionality of the legislation, the court is not concerned
with the wisdom, experience or policy of legislation. In the words of CJ Marshall:
Whether a law be void for its repugnancy to the
Constitution, is, at
all times, a question of much delicacy, which ought seldom, if ever,
to be decided in the affirmative, in [a] doubtful case. … But it is not
on slight implication and vague conjecture that the legislature is to
be pronounced to have transcended its powers, and its acts to be
considered as void. The opposition between the Constitution and the
law should be such that the judge feels a clear and strong conviction
of their incompatibility with each other.
375
There have been different opinions regarding the Supreme Court's power of judicial
review, for example, President Thomas Jefferson was of the view that the strategy
of the founding fathers was to create three independent branches of government,
but the power of review given to the Supreme Court, according to him, negated the
doctrine of the separation of powers. Consequently, he argued that every separate
branch should be their own judges of actions.
376
Jefferson’s argument is, it is
suggested, unsustainable as separation of powers goes side by side with checks and
balances and without one the other is unachievable.
In the context of this thesis, the concept of a powerful judiciary that can review the
acts of the legislature and the executive is very important for the integrity of the
country, at the same time, as indicated above, the US judiciary has also played an
active role in maintaining and preserving the integrity
of the union where the
constitution was silent, for example, preventing secession attempts.
One of the potential issues of disparity is secession movements, which, as described
in Chapter 4, have happened in the past not once, but twice in Pakistan. It is
therefore very important to analyse the secession paradigm under the US
presidential model. Usually in parliamentary democracies, the political system does
not necessarily strictly
stop secession requests, for example, the referendum for
Scottish independence in the UK referred to in Chapter 3.
375
Fletcher v Peck, 10 U.S. (6 Cranch) 87, 128 (1810) discussed in JM Lynch, 'Fletcher v. Peck: The
Nature of the Contract Clause' (1982) 13(1) Seton Hall Law Review 1.
376
JJ Darby, 'Congress and the Constitution' (1966) 526(6) Cornell Law Review 1027.
92
The American Civil War involved secession of the southern states.
377
In the early
1860s, the southern states tried to secede, resulting in the bloodiest war ever fought
on US soil. The war was a secession struggle of the southern states, over the issue
of slavery.
378
Territorial referendums took place in Texas,
Tennessee, Virginia, and Arkansas,
each declaring victory for secession.
379
Secession was resisted by the military and
questions were brought before the Supreme Court in
Texas v White.
380
The Supreme
Court held that the Confederate states were still states by extension, it held that all
the seceding states were still states since the US Constitution did not allow for
secession at all.
381
CJ Salmon Chase stated:
The Constitution, in all its provisions, looks to an indestructible
Union, composed of indestructible States. When, therefore,
Texas
became one of the United States, she entered into an indissoluble
relation. All the obligations of perpetual union, and all the guaranties
of republican government in the Union, attached at once to the State.
The act which consummated her admission into the Union was
something more than a compact; it was the incorporation of a new
member into the political body. And it was final. The union between
Texas and
other States was as complete, as perpetual, and as
indissoluble as the union between the original States. There was no
place for reconsideration, or revocation, except through revolution,
or through consent of the States.
382
The Supreme Court in this case had created a very strong and useful authority on
demand for secession, establishing that secession
is not an option under US
constitutional law. The opinion of the Chief Justice in
Texas v White has been 'widely
accepted as being the final word on the issue of the legality of secession from the
377
Erin Ryan, 'Secession and Federalism in the United States: Tools for Managing Regional Conflict
in a Pluralist Society' (2016) FSU College of Law, Public Law Research Paper No 806
<
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2775377
> accessed 28 November 2018.
378
ibid.
379
ibid.
380
74 US 700 (1869).
381
ibid.
382
ibid 725.
93
perspective of American constitutional law'.
383
The same principle was applied by
the Supreme Court in the most recent Alaskan secession attempt in 2010.
384
It is argued that the reason the Supreme Court saved the union from disintegration
was due to its constitutionally enshrined separation of powers, which created an
independent and powerful judiciary. It was therefore less contentious to all parties
when the decision was made in
Texas v White and likewise the Alaskan case. In the
next section, the role of the judiciary in Pakistan is explored and compared with the
USA.
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