Constitutional Decisions by a Bare Majority of the Court

In December, 1823, the legislature of Kentucky, in a blaze of resentment against a decision of the Supreme Court of the United States invalidating a Kentucky statute,’ petitioned Congress “so to organize the Supreme Court of the United States that no constitutional question * * * involving the validity of State laws, shall be decided by said Court unless two-thirds of all the members belonging to said court shall concur in such decision.” 2 At the same time a United States senator from Kentucky was demanding that Congress- require for such decisions the concurrence of seven judges out of a Supreme Court of ten.2 Last year (i92o) a former attorneygeneral of the state of Michigan declared, “I am certain that if a law were passed by which a two-thirds vote of the entire membership of the Court would be required before an Act of Congress could be declared void, it would be a lasting benefit and for the good of all.”‘ During the span of nearly a hundred years which separates these expressions of opinion there has been every now and again fresh expression of the same belief that the Supreme Court ought not to be able to declare legislative acts unconstitutional by a bare majority of the court.”