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act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers.
It may either stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. 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 that 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. Between these alternatives there is no middle ground. The constitution 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 choose to alter it.(a)
§ 402.“ In the United States, the principle in the English government, that the parliament is omnipotent, does not prevail; though, if there be no constitutional objection to a statute, it is with us as absolute and uncontrollable as laws flowing from the sovereign power, under any other government.(6) But in this, and in all other countries, where there is a written constitution, designating the powers and duties of the legislature, as
(a) Marbury v. James Madison, 2 Dallas's R. 175. (6) i Kent's Com. 426.
well as of the other departments of government, an act of the legislature may be void as being against the constitution. The law with us must conform, in the first place, to the constitution of the United States, and then to the subordinate constitution of its particular state ; and if it infringes the provisions of either, it is so far void. The courts of justice have a right, and are in duty bound, to bring every law to the test of the constitution, and to regard the constitution, first of the United States, and then of the subordinate constitution of its particular state, as the paramount and supreme law, to which every inferior or derivative power and regulation must conform. The constitution is the act of the people, speaking in their original character, and defining the paramount conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power, contrary to the true intent and meaning of the constitution, is absolutely null and void.
§ 403. The judicial department is the proper power in the government to determine whether a statute be, or be not constitutional. The interpretation or construction of the constitution, is as much a judicial act, and requires as much legal discretion, as the interpretation or construction of a law. To contend that courts of justice must obey the requisitions of an act of the legislature, when it appears to them to have been passed in violation of the constitution, would be to contend that the law was superior to the constitution, and that the judges had no right to look into it and regard it as the paramount law. It would be rendering the power of the agent greater than that of his principal, and be declaring that the will of only one concurrent and co-ordinate departments of the subordinate authorities under the constitution, was absolute over the other departments, and competent to control, according to its own will and pleasure, the whole fabric of the government
and the fundamental laws on which it vested. The attempt to impose restraints upon the exercise of the legislative power would be fruitless, if the constitutional provisions were left without any power in the government to guard and enforce them.” Chancellor Kent has justly said: “From the mass of powers necessarily vested in the legislature, and the active and sovereign nature of those powers; from the numerous bodies of which the legislature is composed, the popular sympathies which it excites, and its immediate dependence on the people, by the means of frequent periodical elections, it follows that the legislative department of the government will have a decided superiority of influence. It is constantly acting upon all the great interests in society, and agitating its hopes and fears. It is liable to be constantly swayed by popular prejudice and passion, and it is difficult to keep it from pressing with injurious weight upon the constitutional rights and privileges of the other departments. An independent judiciary, venerable by its gravity, its dignity, and its wisdom, and deliberating with entire serenity and moderation, is peculiarly fitted for the exalted duty of expounding the constitution, and trying the validity of statutes by that standard. It is only by the free exercise of this power, that courts of justice are enabled to repel assaults, and to protect every part of the government, and every member of the community, from undue and destructive innovations upon their chartered rights. It has accordingly become a settled principle in the legal polity of this country, that it belongs to the judicial power, as a matter of right and of duty, to declare every act of the legislature made in violation of the constitution, or of any provision of it, null and void.”(a) The question whether a law is void
(a) i Ként's Com. p. 450.
for its repugnancy to the constitution, is at all times, a question of much delicacy, which ought seldom, if ever, to be decided in a doubtful case. It is not un slight implication and vague conjecture, that the legislature is to be pronounced to have transcended its powers, and its acts to be considered void. The opposition between the constitution and the law should be such, that the judge feels a clear and strong conviction of their incompatibility with each other.(a) In one case,(6) Buchanan, Ch. J., remarks: “It has been said, that a legislative act should not be pronounced unconstitutional or invalid, in a doubtful case; nor should it, where the doubt is bona fide, and well founded, and not the result of disinclination to deny the authority of the legislature, which all must feel, which none should yield to in violation of a solemn duty. But where a judge is satisfied, upon full consideration, that an act of the legislature is contrary to the constitution of the United States, the supreme law which he is bound to obey, and which must prevail over any act that comes in conflict, and cannot stand with it, or is for any other reason invalid, he has no choice; and all that is left for him, is honestly and fearlessly to do his duty, from the faithful discharge of which, however unpleasant the task, no upright judge can shrink, if he will. On the other hand, a judge should not suffer himself to be betrayed to pronounce an act unconstitutional or invalid, on insufficient grounds, by a morbid apprehension that a contrary decision might be ascribed to the want of a proper sense of judicial duty."
(a) Fletcher v. Peck, 6 Cranch R. 87.
(6) The Regents of the University of Maryland v. Williams, 9 Gill & Johns. 383.
of LEGISLATIVE AND JUDICIAL INTERPRETATION.
§ 404. Having in the preceding chapter considered the origin and history of legislation, and the subject of legislative power, we shall now enter upon the second subdivision of our subject, that, of the construction of statutes. The question of the bounds of legislative and judicial interpretation, lies at the threshold of this part of our inquiries, and is one claiming the consideration of all whose duty it is to interpret the statute laws of a nation, which in this country, constitutes the greatest part of our entire judicial system. It should be the aim of judges, in all cases, to keep within the legitimate bounds of interpretation, and studiously to avoid such latitude of interpretation as would amount to judicial legislation, rather than judicial interpretation. In all that we shall annote on this subject we are indebted to the pen of the English author on statutes, Mr. Dwarris.
§ 405. It is a remarkable fact, that in an enlightened age, and among so many intelligent inquirers into the philosophy, both of history and of law, so little attention should have been paid to the consideration of the important question,--What are the principles upon which the jurisprudence of a country ought to proceed? Certainty in the law, to a positive extent, is unfortunately unattainable; immutability of laws, even if it were desirable, (which it surely is not) is still more impracticable. An extensive alteration in the condition of the people,-a total change of circumstances, must, at any time, induce some change of institutions, and render ab