Justice Lumpkin's Bill of Rights IV

We have seen Justice Lumpkin espousing a truly remarkable and radical doctrine: even if State laws do not run afoul of the State constitution, judges can and should strike down State laws that violate the fundamental principle that republican government must protect life, liberty and property.

But does this not lead to judicial activism (as we would say today) run amok? Perhaps the most interesting part of this fascinating opinion is how Justice Lumpkin wrestles with, and resolves, this issue. He finds in the Bill of Rights a limiting principle that constrains judicial discretion. Judges should not strike down all legislative acts that they perceive may be violations of life, liberty and property. They should limit themselves to striking down only those enactments that violate the most important principles -- those declared by the people in the Bill of Rights.

The rhetoric and language are so wonderful that, as before, I will let Justice Lumpkin speak for himself. First, he identifies the problem of excessive judicial discretion:

"But we do not intend to put our opinion in this case upon this foundation [i.e., that courts may nullify all laws that violate life, liberty or property], however solid it may be. For while we have denied the omnipotence of the Legislature, the tendency of our administration, nevertheless has been, to side with those who refused to declare and Act of the Legislature void, because it conflicts with the Court's views of reason, expediency or justice; and who recommend an appeal to the ballot-box as the only remedy for unwise legislation. And one of the strongest arguments against Judicial interposition in such cases is, that apart from a written Constitution, our ideas of natural justice are vague and uncertain, regulated by no fixed standard; the ablest and best men differing widely upon this, as well as all other subjects."

Justice Lumpkin then proposes the solution: courts should limit their discretion by nullifying only those laws that violate the principles embodied in the Bill of Rights, declared by the People to constitute the bedrock principles of republican government:

"But as to questions arising under these amendments [the Bill of Rights] there is nothing indefinite. The people of the several States, by adopting these amendments, have defined accurately and recorded permanently their opinion, as to the great principles which they embrace . . .. [V]iewing these amendments as we do, as intended to establish justice -- to secure the blessings of liberty -- to protect person and property from violence; and that these were the very purposes for which government was established, we hold that they constitute a limit to all legislative power, Federal or States, beyond which it cannot go; that these vital truths lie at the foundation of our free, republican institutions; that without this security for personal liberty and private property, our social compact could not exist. No Court should ever presume that it was the design of the people to entrust their representatives with the power to take away or impair these securities. Such an assumption would be against all reason. The very genius, nature and spirit of our institutions amount to a prohibition of such acts of legislation, and will overrule and forbid them."

The picture above is of Hiram Warner, the third member of the Supreme Court of Georgia in 1852, who also concurred in the decision. Here is a brief biography of Justice Warner, who later became the second Chief Justice of the court, after Justice Lumpkin.