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The fundamental principle of American constitutional jurisprudence is that laws and not men shall govern. This means that when a power, exercised by an official or by a governmental organ, is challenged legal authority therefor derived from some existing law must be shown, and that no valid law can exist save that which is recognized as such by the courts. The courts recognize two great bodies of law; the so-called common law, which is a product of custom and judicial interpretation, which in large measure we have inherited from England; and enacted law, which is the formal creation of the legislative organs of government. This formally enacted law is of two kinds: That embodied in written constitutions, and that enacted by the ordinary legislative bodies and termed statutes.

Independently of express statement to that effect, it has become axiomatic that no statute law is valid if not consistent with the provisions of the Constitution from which the enacting legislature derives its powers. A state statute inconsistent with the Constitution of that state is, therefore, invalid, and an act of Congress not warranted by the provisions of the federal Constitution is similarly void. And the same legal invalidity of course attaches to the unconstitutional act of an executive or judicial organ of government. In addition to being subordinate to the provisions of the state Constitution, every act of the state official or organ is required to conform to the requirements of the federal Constitution, and this applies as well to the provisions of a state Constitution, as to the statutes of its legislature.

Elsewhere we shall have occasion to deal with the constitutional tests to be applied to executive and judicial acts. In this chapter we are concerned with the relation between statute and constitutional law.

§ 1. The Courts and Unconstitutional Laws.

The principle that statutory law, in order to be valid, must be in conformity with constitutional requirements, is a product of American jurisprudence, and peculiar to it. That the acts of the legislatures of subordinate political units must agree with the conditions and recognize the limits laid down by the superior sovereign power is of course not peculiar to the United States; but that the legislative acts of the highest legislative body itself are void if not warranted by the Constitution under which that body is organized, is nowhere else admitted, — neither in England, which is without a written Constitution, nor in any other Continental country which has one.

2. Marbury v. Madison.

The acceptance of this principle in the United States may be dated from the decision by the Supreme Court in 1803 of the case of Marbury v. Madison. This point is of such transcendent importance that the argument of Marshall will be given in extenso.

“The question whether an act, repugnant to the Constitution, can become the law of the land,” says the great Chief Justict, 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. That the people have an original right to establish, for their future government, such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The

11 Cr. 137; 2 L. ed. 60.

Constitution is superior to any ordinary act of the legislature, to which they both apply.”.

principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom 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. . . It is a proposition too plain to be contested, that the Constitution controls any legislative act repignant 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 supreme 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. ... Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be that an act of the leg islature repugnant to the Constitution is void. act of the legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? . . . It is emphatically the province and duty of the judicial department to say what the law is. 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

or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting

This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the the Constitution, and not such ordinary act, must govern the case

The reasoning of Webster and Kent as to the invalidity of

If an


the Constitution;

rules governs the case.

legislative acts contrary to the Constitution, and as to the power of the court to declare them such, is substantially the same as that of Marshall.?

§ 3. Criticism.

The force of the reasoning of Marshall, Webster and Kent may in some respects be questioned, or at least added to.

That organ or body which has the final power to interpret the Constitution has necessarily the power to give to that instrument what meaning it will. It thus becomes, in a sense, supreme over all the other organs of government. Unless, there fore, the body from whose action the Constitution itself derived its force is to be resorted to in every case of doubtful construction (and this, of course, is impracticable) the only alternative is to delegate this supreme power to some one of the permanent organs of government. But it does not necessarily follow, as the reasoning of Marshall, Webster and Kent would seem to indicate, that, as an abstract proposition, this power must always be possessed by the judiciary. Indeed, in all other countries except the United States, this power is vested in the legislature. These other written constitutions did not, indeed, exist at the time that Marshall rendered his opinion, but their present existence shows that under a written instrument of government it does not necessarily follow that the courts should have a power to hold void legislative acts contrary to its provisions.

If, then, the possession of this power by American courts is to be established, it must be by a resort either to the words of

2 Webster declares: “ The Constitution being the supreme law, it follows of course, that every act of the legislature contrary to the law must be void. But who shall decide this question? Shall the legislature itself decide it! If so, then the Constitution ceases to be a legal and becomes only a moral restraint on the legislature. If they, and they only, are to judge whether their acts be conformable to the Constitution, then the Constitution is admonitory or advisory only, not legally binding; because, if the constructior oi it rest wholly with them, their discretion, in particular cases, may be in favor of very erroneous and dangerous constructions. Hence the courts of law, necessarily, when the case arises, must decide upon the validity of particular acts.” Webster, Works, Vol. III, 30.

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