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Coxe, Judicial Powers and Unconstitutional Legislation ; Davis, Appendix to the Reports of the Decisions of the Supreme Court of the United States from September 24, 1789, to the end of the October term 1888, (United States Reports, No. 131 ; 'an important series of cases, decisions, and documents, by the Reporter to the Court); Miller, The Constitution of the U. S., Chaps. VII.-VIII.; Bryce, The American Commonwealth, Chaps. XXII.-XXIV. (Chapter XXIII. is an admirable statement of the way in which American Courts were led to deliver constitutional decisions, and to set laws. enacted by State Legislatures and by Congress aside as null and void, being in conflict with constitutions, State or National).

570. The American Government Constitutional.The grand features of the American Government are delineated in written constitutions. These constitutions are the paramount law,--the Constitution of the United States of the whole country, and the constitutions of the several States of those States, save in so far as they are limited by the Constitution, laws, and treaties of the United States, All laws, National and State, are enacted with reference to these constitutions. Accordingly, what is called Constitutional Law, if it did not originate in the United States, has here reached its fullest development, and forms the peculiar feature of our jurisprudence. A constitutional objection to a measure in the United States is, that the measure conflicts with the paramount law; a constitutional objection to a measure in England amounts only to this,—the measure is a departure from the way in which things have heretofore been done.

571. Constitutional Decisions.- The supremacy of the Constitution over all laws, State and National, opens to the Federal courts a field unknown to the courts of the Old World. They decide constitutional cases. The Supreme Court is called upon to decide cases involving the question whether a law of Congress is in conformity with the Constitution, and also cases calling in question the conformability of State laws to the Constitution, laws, and treaties of the United States. Once it was denied that the Court had such powers, but it has asserted them, and the assertion has been sustained by the Nation." The State Courts also pass upon the conformability of State legislation to the State constitutions.

572. Meaning of Unconstitutional.- Judge Cooley states the meaning of the expression as follows: When a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void ; it constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made. And what is true of an act void in toto, is true also as to any part of an act which is found to be unconstitutional, and which, consequently, is to be regarded as having never, at any time, been possessed of any legal force." 2

573 Exercise of the Power.-Obviously, to declare laws of Congress null and void is a responsible duty. The three branches of the Government are of equal rank and dignity ; each one is supreme in its own sphere, and invasions of the sphere of one by the others would soon destroy their harmonious working. This responsibility the Supreme Court has always felt. “It is an axiom of our jurisprudence," said Mr. Justice Swayne in 1866, “that an act of Congress is not to be pronounced unconstitutional unless the defect of power to pass it is so clear as to admit of no doubt. Every doubt is to be resolved in favor of the validity of the law. Since the organization of the Supreme Court but three acts of Congress have been pronounced by that body void or unconstitutional.”1

1 Marbury v. Madison, i Cranch 137, and Cohens v. Virginia, 6 Wheaton 412. 2 Constitutional Limitations, p. 222.

A Case Must Arise.—The Supreme Court cannot express its opinion as to the constitutionality of a law until a case arises fairly involving that question. For instance, in one hundred years it has not had an opportunity to declare the meaning of the phrase in relation to attainder,

except during the life of the person attainted." Should Congress enact a law for the punishment of treason making forfeiture of lands perpetual, and should a case arise under this law, then the Court could give the phrase an authoritative interpretation. In 1857 it pronounced the Missouri Compromise unconstitutional, although it had been on the statute-book since 1820.



575. Political Power of the Judiciary. The theory of the Constitution is, that the three departments of the Government are coordinate, each one being independent of the other two. Otuside of the impeaching power, no department is amenable to either of the others. No power has been given to the Courts to construe the Constitution for Congress or the President: each department must construe the instrument for itself. At the same time, judicial constructions of the laws and the Constitution directly affect the two political departments, as will be explained below.

The ordinary mode of enforcing the laws is by means of the courts; the courts reach men through their decrees and judgments; and the question whether they will withhold or grant these or not, makes the judges the interpreters of the law. If the Court of final resort thinks a law unconstitutional, it will not enforce it. Con. gress can reenact a law thus declared null and void, but the Court would again refuse to enforce it. Nor would the Government be apt to bring a second suit to enforce a law once pronounced null and void. This is a practical restraint upon both the Legislature and the Executive.

2. Congress and the Executive naturally entertain great respect for the constitutional decisions of the Supreme Court. These decisions not only indicate what legislation the Court will enforce, but they are also the decisions of men in independent position who are devoted to the study of such questions.

10. S. v. Rhodes, 1 Abbot's U. S. Reports, 52,

3. The public has great reverence for the Court. Should Congress or the President come into collision with it, the public confidence would commonly go with the Judges.

Accordingly, the decisions of the Supreme Court have a farreaching significance. At the same time, it cannot always enforce its decrees. Its executive arm is the marshal; if this officer is, not able to give them effect, he must call upon the President for aid, and if the Executive fails in such a case, the Court is powerless. Neither have the Judges auy power to enfore their decrees against the Executive. Thus, in 1861, Chief Justice Tavey issued a writ of habeas corpus in the interest of a military prisoner at Baltimore; but President Lincoln refused to allow the writ, and it fell powerless to the ground. States have also refused to obey the decisions of the Court.

576. The Courts and the Development of the Constitution.—The National Courts have played a great part in that development of the Constitution which has been dealt with in Chapter XIII. Mr. Bryce says this developinent has been effected in three ways.

“It has been changed by amendment.” “ It has been developed by interpretation, that is, by the unfolding of the meaning implicitly contained in its necessarily brief terms, or by the extension of its provisions to cases which they do not directly contemplate, but which their general spirit must be deemed to cover.“It has been developed by usage, that is, by the establishment of rules not inconsistent with its express provisions, but giving them a character, effect, and direction which they would not have if they stood alone, and by which their working is inaterially modified.” Under interpretation he includes construction. "The process of development,” he says, “shows no signs of stopping ; nor can it, for the new conditions of economics and politics bring up new problems for solution. But the most inuportant work was that done during the first half century, and especially by Chief Justice Marshall during his long tenure of the presidency of the Supreme Court (1801-1835). It is scarcely ani exaggeration to call him, as an eminent American jurist lias doue, 'a second maker of the Constitution.'"1

577. The National Judiciary.-No department of the Government has more fully met the expectations of its authors than the Judiciary. No department has commanded more confidence at home or more applause abroad. Its influence on the political and legal development of the country has been very great. To quote Professor Johnston: “Unquestionably the most important creation of the Constitution was the Federal Judiciary. It will be seen that the only guaranty for the observance of the Articles of Confederation was the naked promise of the States. This had been found to be utterly worthless. The creation of a system of United States courts, extending throughout the States, and empowered to define the boundaries of Federal authority, and to enforce its decisions by Federal power, supplied the element needed to bring order out of chaos. Without it the Constitution might easily have proved a more disheartening and complete failure than the Articles of Confederation.'

1 See the admirable chapters, XXXI-XXXY,

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Nore.—The opinion commonly entertained hitherto is that the authority of our courts to declare laws unconstituíional, and so null and void, is purely of an inferential character. Those who have asserted most strongly that the Supreme Court of the United States has such power, have held that it is based upon implication and inference, and not upon the express meaning of the text, or any part of the text, of the Constitution. Mr. Brinton Coxe, in the learned work named above, has undertaken "to show that the Constitution of the United States contains express texts providing for judicial competency to decide questioned legislation constitutional or unconstitutional and to hold it valid or void accordingly." In examining this subject, he investigates "the history of the relation of judicial power to unconstitutional legislation in certain of the States before and during the Confederation," and seeks “to show that the judicial competency under discussion is an American institution older than the Constitution of the United States” (pages 1, 2). It is well known to students that State courts began, almost as soon as the first State constitutions were ordained, to deliver decisions in which they set aside State legislation as in conflict with those instruments. A New Jersey case bears the date 1780, a Virginia case 1782, a New York case 1784, and a Rhode Island case 1786. The constitutional decisions the National Supreme Court appear to have a still earlier prototype. Mr. Bryce remarks: “Questions sometimes arose in Colonial days whether the statutes made by these [Colonial] Assemblies were in excess of the powers conferred by the charter; and if the statutes were found to be in excess, they were held invalid by the courts, that is to say, in the first instance, by the Colonial courts, or, if the matter was carried to England, by the Privy Council.” He states that “the same thing happens even now as regards the British Colonies" (Vol. I., pp. 248, 249, text and note). Judge Swayne is quoted above to the effect that, down to 1868, only three laws enacted by Congress had been declared unconstitutional. Mr. Davis (see title above, pp. ccxxxv, et seq.) gives the titles of 20 decisions rendered by the Court declaring United States statutes repugnant to the Constitution, and 171 decisions declaring State statutes so repugnant. Mr. Coxe subjects the first of these lists to criti. cism, and points out that it does not contain the famous Dred Scott decision (19 Howard 393). It is perhaps in some cases a difficult matter to determine whether a decision nullifies an act of Congress or not.

1 History of American Politics, pp. II, 12.

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