John Bannister Gibson
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John Bannister Gibson
Now, in questions of this sort, precedents ought to go for absolutely nothing. The constitution is a collection of fundamental laws, not to be departed from in practice nor altered by judicial decision, and in the construction of it, nothing would be so alarming as the doctrine of communis error [communis error facit jus, or common error (repeated many times) makes law], which offers a ready justification for every usurpation that has not been resisted in limine [at the outset]. Instead, therefore, of resting on the fact, that the right in question has universally been assumed by the American courts, the judge who asserts it ought to be prepared to maintain it on the principles of the constitution. (dissenting opinion in Eakin v. Raub, 12 Sergeant and Rawle 330, Pennsylvania 1825, in which Justice Gibson renounced the doctrine of judicial review. His general critique of judicial review did not prevail, but his point on the inviolability of the fundamental law is well taken.)
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