CHAPTER XVI THE JUDICIAL SYSTEM OF THE UNITED STATES (CONTINUED) THE SUPREME COURT AND LEGISLATION England; sovereign in hence its acts are constitu tional. Consovereign in States; hence its acts are gress not the United subject to judicial . . . There is no court that has power to defeat the intent Parliament of the legislature, when couched in such evident and express words as to leave no doubt whether it was the intent of the legislature or no." Nevertheless, the Supreme Court has declared nearly three hundred statutes unconstitutional. In thus negativing the will of the representatives the court has been accused of judicial usurpation. But the British constitution differs from the Constitution of the United States. The British constitution is of a flexible type, largely unwritten; in it Parliament is sovereign, and every act of Parliament is ipso facto legal and constitutional. On the other hand, the Constitution of the United States is rigid, written in form, and Congress not being sovereign can legislate only upon those subjects delegated to it by the Constitution. The Constitution is at once a delegation of authority and a limit to the use of that authority. review Result of design, and precedent, As has been shown, the colonists and the people of the states were accustomed to this idea of written constitutions. Moreover, both colonial and state legislatures had seen the acquiescence courts negative their acts and enforce the principles of the charters or state constitutions in opposition to their own statutes. Therefore, considering the declared supremacy of the Constitution and federal law, it might be argued a priori that the framers of the Constitution of 1789 intended to give the courts the power of judicial review to which the people were more or less accustomed. Whether such was their intent or not, two things have happened: First, the courts with unanswerable logic have 1 Blackstone, Commentaries, Vol. I, p. 91. Judicial review not demonstrated their power to declare acts of the state and national legislature unconstitutional when they conflicted with the federal constitution. Second, this power, while at first bitterly attacked, was in time acquiesced in, except on certain critical occasions, but recently it has been made the basis of most revolutionary proposals for amending the Constitution and has been once again denominated judicial usurpation. Professor Beard 1 has shown that some of the more prominent objected to in members of the convention of 1787 held on various occasions convention of 1787 that this power of judicial review might be exercised, and the judicial article of the Constitution was adopted without serious objection, although it was known to be susceptible of such an interpretation. Professor McLaughlin,2 discussing the political theory and practice from the time of the Revolution, says: The chiefest among the principles I have given are these: first and foremost, the separation of the powers of government and the independence of the judiciary, which led courts to believe that they were not bound in their interpretation of the Constitution by the decisions of a collateral branch of the government; second, the prevalent and deeply cherished conviction that governments must be checked and limited in order that individual liberty might be protected and property preserved; third, that there was a fundamental law in all free states and that freedom and God-given right depended on the maintenance and preservation of that law. . . ; fourth, the firm belief in the existence of natural rights superior to all governmental authority, and in the principles of natural justice constituting legal limitations upon governmental activity. ... Back of all these ideas was a long course of English development in which the judges had played a significant part in constitutional controversy. From judicial precedent, moreover, it is easily demonstrated that the Supreme Court exercised this power almost from its organization. The first indication of the attitude of the court is found in 1790 in Hayburn's Case. This arose from the fact that Congress had provided that the federal judges should act as examining magistrates in regard to military pensions, and that 106. 1 C. A. Beard, The Supreme Court and the Constitution, chap. ii. 2 A. C. McLaughlin, The Courts, the Constitution, and the Parties, pp. 105. 8 2 Dall. 409. their decisions should be subject to review by the Secretary of War. The constitutionality of the statute was never formally passed upon, but all of the justices of the Supreme Court when on circuit expressed their opinions, and Congress repealed the act. The earliest case in which a statute of Congress was considered by the court was in 1796.1 In this case the court upheld the statute laying a direct tax upon carriages. Although the statute was upheld, yet the reason for bringing the suit was the assumption that the court had the power to pass upon the constitutionality of an act of Congress. In 1803, in Marbury Marshall's v. Madison, Marshall stated the theory so clearly and logically Marbury v. that, as far as the court has been concerned, it has never since Madison been questioned. His reasoning on this point was as follows: The authority, therefore, given to the Supreme Court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the Constitution; and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised. opinion in Act of Con gress not warranted by the Constitution can an act of repugnant to tution be Powers of Congress defined by The question, whether an act repugnant to the Constitution can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it. . . . ... The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is the Constithat limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or that the legislature may alter the Constitution by an ordinary act. tution is thus Between these alternatives there is no middle ground. The Constitu- Constitution tion is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. . . . 1 Hylton v. United States, 3 Dall. 171. ... supreme or on a level with acts of Congress Court must decide which of two con flicting laws it will enforce Court must decide cases conformably to the Constitution Constitution, not acts of Congress, governs case To overlook the Constitu tion would subvert idea of supremacy of the Constitu tion and make Congress supreme Constitution a rule for courts It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the Constitution; and the Constitution is superior to any ordinary act of the legislature; the Constitution, and not such ordinary act must govern the case to which they both apply. Those then who controvert the principle that the Constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the courts must close their eyes on the Constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is really effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. . . The judicial power of the United States is extended to all cases arising under the Constitution. Could it be the intention of those who gave this power, to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. . . . The Constitution declares "that no bill of attainder or ex post facto law shall be passed.” If, however, such a bill should be passed and a person should be prosecuted under it, must the court condemn to death those victims whom the Constitution endeavors to preserve? From these, and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of the courts, as well as of the legislature. . . . tion the su preme law of It is also not entirely unworthy of observation, that in declaring what The Constitushall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only the land which shall be made in pursuance of the Constitution, have that rank. Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that the courts, as well as other departments, are bound by that instrument.1 The power to declare the act of a state unconstitutional was first exercised in 1795, in Vanhorne's Lessee v. Dorrance,2 where the court used words which might have been the precedents for Marshall's more elaborate reasoning: Paterson on the suprem What is a Constitution? It is the form of government, delineated by Justice the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it acy of the Constitution contains the permanent will of the people, and is the supreme law of the land; ... and can be revoked or altered only by the authority that made it.... What are the Legislatures? Creatures of the Constitution; they owe their existence to the Constitution: they derive their powers from the Constitution: It is their commission; and, therefore all their acts must be conformable to it, or else they will be void. The Constitution is the work or will of the People themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the Legislature in their derivative and subordinate capacity. The one is the work of the Creator, and the other of the Creature. But this act conflicted with a treaty not with a constitutional rule. The earliest cases in which a state statute was declared unconstitutional were those of United States v. Peters, in 1809, and Fletcher v. Peck, in 1810. In both these cases Marshall upheld the supremacy of the Constitution, although pointing out the delicate position of the court in annulling the act of a state. Nationalist that he was, Marshall apparently had more respect for the act of a state than for the coördinate branch of the government. 1 1 Cranch, 137, 176, 177, 178, 179, 180. 2 2 Dall. 304, 308. 3 5 Cranch, 115. 46 Cranch, 87. |