Legislative repeal

“ Congress, therefore, in the present perilous juncture, does not deem it improper, respectfully and earnestly, to recommend the repeal of those laws to the several States which have enacted them, or such legislative corrections or explanations of them as may prevent their being used or perverted to such mischievous purposes. ”

“ The repeal of laws is as much a legislative function as their enactment. [10]
Congress has had the power to repeal the 1872 and 1873 Acts from the dates of their passage by the Legislative Assembly. But as we have seen, it has not done so.
Congress also has had the authority to delegate to a municipal government for the District the power to pass laws which would alter or repeal the Acts of the Legislative Assembly. As we have seen, the Organic Act of the District of Columbia approved June 11, 1878, withdrew legislative powers from the municipal government. ”

“ To establish an implied repeal there must, under the legislative mandate, be shown some necessary contradiction, so extreme as to justify this court in finding it impossible to permit the government the choice between the two remedies where the facts bring the offense within the provisions of both statutes. ”

“ What shall we say now when people elected upon a platform and pledged to a principle disregard those pledges when they come to the legislative halls? It is a blow at representative government which we cannot afford to give. We are not sent here because we know more than others and can think for them. ”

“ And, sir, we are forced to consider this question when the law it is proposed to repeal is only commencing to operate, now, three years before it can have full effect—during all which time its operation will be under your eye and within your power—and while the passions of men are heated by a presidential combat, when a grave questions, affecting the interests of every citizen of the United States, will be influenced by motives entirely foreign to the merits of the proposition. ”

“ Mr. Wilson of West Virginia, chairman of the Committee of Ways and Means, introduced the Administration measure, to which I have heretofore referred, and the great parliamentary struggle began. I then asserted, and still believe, that the debate over the repeal bill was the most important economic discussion which ever took place in our Congress. On the 16th day of August, 1893, near the close of the debate, I delivered the following argument in opposition to unconditional repeal. ”

“ The proposition now is, that after fourteen years have passed, and not one petition from one American citizen has come to us asking that this law be repealed; while not one memorial has found its way to our desks complaining of the law, so far as I have heard, the Democratic House of Representatives now hold if they are not permitted to force upon another House and upon the Executive against their consent the repeal of a law that Democrats made, this refusal shall be considered a sufficient ground for starving this Government to death. That is the proposition which we denounce as revolution. ”

“ The republicans are not agreed on the constitutionality of the repeal. The people at large have imbibed strong prejudices on the subject of judicial independence. The repeal would be ascribed to party animosity; and if future amendments should be made, it would be considered as a personal proceeding, merely to remove the present judges: the hazard of loss in public opinion is greater than the hope of gain. There is a mass of the community that will not be fermented by the leaven of party passions. ”

“ He must see, therefore, and does see—every man sees—that the only alternative is a repeal of the laws throughout the whole Union, or their execution in Carolina as well as elsewhere. And this repeal is demanded, because a single State interposes her veto, and threatens resistance! The result of the gentleman's opinions, or rather the very text of his doctrine, is, that no act of Congress can bind all the States, the constitutionality of which is not admitted by all; or, in other words, that no single State is bound, against its own dissent, by a law of imposts. ”

“ But this provision applies, and could only apply, to the repeal of statutes by the Congress and to the exercise by the Congress of its undoubted authority to qualify its repeal and thus to keep in force its own enactments. It is a provision enacted in recognition of the principle that, unless the statute is so continued in force by competent authority, its repeal precludes further enforcement. The Congress, however, is powerless to expand or extend its constitutional authority. ”

“ However fit such considerations are to control the action of Congress, and however reluctant a statesman may be to disturb what has been settled, every law made by Congress may be repealed, and, saving private rights, and public rights gained by States, its repeal is subject to the absolute will of the same power which enacted it. ”

“ It is not in our power to guard against a repeal. Our acts are not like those of the Medes and Persians, unalterable. A repeal is a thing against which no provision can be made. If that is an objection, it holds good against any law that can be passed. If those States that may have a superiority in Congress at a future day will pay no respect to the acts of their predecessors, or to the public good, there is no power to compel them. ”

“ The state is under no obligation, express or implied, to legislate to enhance the credit of the general government, and should it adopt a system of legislation which indirectly produces such a result, its power of repeal cannot be doubted. ”

“ But it must have become evident to every one who has listened to this debate that the necessity of very important changes in the law is admitted on all hands. It may be assumed almost as a certainty that the act as it now stands will never go into operation again; and just for this very reason, paradoxical as it may seem, I shall not vote for the repeal, but for the suspension of the act until the next session of Congress; and why? Because then the subject must come up again for discussion; then the necessity of recasting the law will stand imperative before us; we cannot get out of its way ”

“ The amendment will not only have a tendency to defeat any plots which may be formed against the liberty and authority of the state governments, but will be the best means to extinguish the factions which often prevail, and which are sometimes so fatal to legislative bodies. ”

“ The argument of those who advocate the enactment of new laws of restriction and condemn the repeal of old ones in effect avers that their particular views of government have no self-extending or self-sustaining power of their own, and will go nowhere unless forced by act of Congress. ”

“ It is believed that the repeal of all such laws would be accepted by the American people as at least a partial return to the fundamental principles of the Government, and an indication that hereafter the Constitution is to be made the nation's safe and unerring guide. They can be productive of no permanent benefit to the country, and should not be permitted to stand as so many monuments of the deficient wisdom which has characterized our recent legislation. ”

“ In a state legislature, composed of two branches representing one mind or body politick, a concurrence of some portion of this mind must attend the continuance of every law. In congress, the representatives of the state mind may prevent the repeal of law, which will then continue against the will of the entire popular mind, or against the will of the states, if the repeal is prevented by the popular representatives. ”

“ Unless we are to take the position that the repeal of a territorial act operates as a repeal of an act of Congress covering the same subject, it is impossible to deny that the congressional act of 1890 is still in force. Had the latter been a mere amendment of the territorial act, the result would have been different, and a repeal of the original operated as a repeal of the congressional amendment. ”

“ All the respective Representatives of the people of the States at large, and the sovereignty in a political capacity of each State, must concur to enact a law. An honorable gentleman from Tennessee (Mr. Campbell) admitted that the power to repeal must be coextensive with the power to make. If this be admitted, I will not fail to convince you that in the manner in which this law is worded we cannot constitutionally assent to it. What does it propose? To give the President of the United States power to repeal an existing law now in force—upon what? ”

“ The American people have hardly ever beheld a rush for the spoils of office more tumultuous than that which followed President McKinley's accession to power. Nor have we ever heard a more furious, and, I may add, a more disgraceful clamor from party men for the breach of party faith than that of Republican politicians demanding the repeal, or at least the disembowelment, of the civil service law by a President and a majority in Congress solemnly pledged to its maintenance and extension. ”

“ There are no particular laws designated in the bill to be repealed. All laws existing before these States got into a condition of insurrection, by which any difference or inequality is created or established, are to be repealed. What is to be the effect of that repeal upon such laws as they exist? In some of those States, by the constitution or by the laws, (and the constitution is equally a law,) persons of the African race are excluded from certain political privileges. ”

“ Nor do we think the amendment void because in conflict with Sec. 4, of Art. 4, of the Constitution of the United States, guaranteeing to every State a republican form of government. Now the initiative and referendum amendment does not abolish or destroy the republican form of government, or substitute another in its place. The representative character of the government still remains. The people have simply reserved to themselves a larger share of legislative power, but they have not overthrown the republican form of government, or substituted another in its place. ”

“ Undecisive, qualifying measures will disgrace your government still more than open violence, and, without satisfying the people, will excite their contempt. They have too much understanding and spirit to accept of an indirect satisfaction for a direct injury. Nothing less than a repeal, as formal as the resolution itself, can heal the wound which has been given to the constitution, nor will anything less be accepted. ”

“ As broad as the congressional enforcement power is, it is not unlimited. Specifically, there are at least three limitations upon Congress' power to enforce the guarantees of the Civil War Amendments. First, Congress may not by legislation repeal other provisions of the Constitution. Second, the power granted to Congress was not intended to strip the States of their power to govern themselves or to convert our national government of enumerated powers into a central government of unrestrained authority over every inch of the whole Nation. ”

“ If we succeed in keeping the necessity of doing something in this matter alive, we have a splendid chance to make a regular reform campaign next winter. But if the matter is now finally disposed of, as it would be by a repeal, the probability is that we shall have to struggle hard to bring the reform bill properly before the two houses, with chances rather against us. I have talked with the most prominent friends of reform, and they are entirely of my opinion. ”

“ Here I venture to add, that a member of the Cabinet pressed me to withdraw my opposition to the repeal, saying that the President felt strongly upon it. I could not understand how a Republican President could consent to weaken the limitations upon the Executive, and so I said,—adding, that in my judgment he should rather reach forth his hands and ask to have them tied. Better always a government of law than of men. ”

“ The next congress, and every succeeding congress, will undoubtedly have the power to repeal the law whenever they may think proper. Whether they will exercise it or not, will depend upon a sound discretion, applied to the state of the whole country, and estimating fairly the consequences of the repeal, both upon the general harmony and the common interests. Then the bill is founded in a spirit of compromise. Now, in all compromises there must be mutual concessions. The friends of free trade insist, that duties should be laid in reference to revenue alone. ”

“ Hence its decrees, however salutary, unless supported by the clearer definitions and stronger sanctions of legislation, will be daily and hourly infringed; and with principles which rest only on public opinion, frequent infraction amounts to a repeal. Nothing that is very common can be very disgraceful. ”

“ It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same powr by the states. It has been said, that congress has exercised this power; and by doing so, has extinguished the power of the states, which cannot be revived by repealing the law of congress. We do not think so. If the right of the states is not taken away by the mere grant of that power to congress, it cannot be extinguished; it can only be suspended, by enacting a general bankrupt law. The repeal of that, cannot, it is true, confer the power on the states ”

“ But there must be a positive repugnancy between the provisions of the new law and those of the old, and even then the old law is repealed by implication only, pro tanto, to the extent of the repugnancy.'
The intention of the act of 1867 was to enlarge somewhat the provisions of the old twenty-fifth section, but not to repeal it. If this construction is not adopted, the conclusion is inevitable, that the main object of Congress in passing the second section of the new act was to annul the last clause of the old twenty-fifth section, and that it sought to do so by a most singular means. ”