case under consideration and lay down principles obiter dicta Obiter dicta - which have little application to the actual decision of the particular case but are indicative of the point of view of the court. Thus Marshall, in Marbury v. Madison, expressed the judgment of the court in these words, "The rule must be discharged." The reasoning upon which the judgment was based set forth the power of the Supreme Court to declare an act of Congress unconstitutional, while as a series of obiter dicta the court made the distinction between executive and ministerial acts of officials, a distinction which has ever since been followed. The most notorious case was found in the Dred Scott case, where the judgment of the court was that the decision of the lower court be reversed and the case dismissed for want of jurisdiction; but in his opinion Chief Justice Taney attempted to settle the question of slavery in the territories by a series of obiter dicta which did much to hasten the Civil War. opinions ground for criticism of judgment Although the majority opinion is always effective, yet the dis- Dissenting senting opinions frequently find such strong supporters that the furnish action of the court is brought into politics. Particularly is this true when one political party passes acts to alter the existing social or economic system, and these statutes are held unconstitutional by a bare majority of the court. Thus, in the Income Tax case1 the case was at first heard and decided by a divided court in which the full number of justices was not present. At the rehearing one of the justices altered his views, and the law was held unconstitutional by a vote of five to four. This gave great offense to many of the Democratic party, which was voiced by Mr. Bryan when he said: "The income tax was not unconstitutional when it was passed. It was not unconstitutional when it went before the Supreme Court for the first time. It did not become unconstitutional until one judge changed his mind." Not only may the decision of the court be brought into politics and its motives criticized, but a genuine doubt may arise as to what the law actually is. The decision of a particular case is evident, but so different and contradictory views may be held by the majority that the underlying principles applicable to similar cases may be by no means clear. Where the court is divided 1 Pollock v. Farmers' Loan and Trust Co., 157 U. S. 429; 158 U. S. 601. criticism of judgments opinions and of court the law is uncertain, and confusion results. Again, if four jus tices agree in their interpretation and reasoning that the majority of the court is wrong, many excuses may be found for lay criticism. "If you want criticism," said Mr. Bryan, "read the dissenting opinions of the court." The influence of the court is not strengthened if critics can find in the dissenting opinions arguments better than they can frame, directly contrary to what is declared to be the law, and which furnish arguments for the support of what the court has declared the law is not. Law which depends for its validity upon the opinion of one justice may seem less sacred than the desires of thousands expressed by their representatives in the legislature. Fortunately, however, in recent years four to five decisions have been less frequent, and there seems to be an attempt to reach a common ground of decision. This increasing unanimity has not only strengthened the influence of the court but has greatly increased the respect for law. CHAPTER XVI THE JUDICIAL SYSTEM OF THE UNITED STATES (CONTINUED) THE SUPREME COURT AND LEGISLATION sovereign in are constitu hence its acts 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 England; 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 design, and As has been shown, the colonists and the people of the Result of states were accustomed to this idea of written constitutions. precedent, 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 convention of 1787 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 Beard1 has shown that some of the more prominent objected to in members of the convention of 1787 held on various occasions 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 repugnant to the Consti tution be law? Congress defined by tution The question, whether an act repugnant to the Constitution can can an act of 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 Powers of 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. is thus Between these alternatives there is no middle ground. The Constitu- Constitution tion is either a superior, paramount law, unchangeable by ordinary supreme or 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. on a level with acts of Congress |