§ 9. Presumption in Favor of the Constitutionality of an Act of Congress.

The fact that Congress has given a particular construction to a constitutional provision, is of very great weight with the Supreme Court when it is called upon to examine the correctness of this interpretation. This is due to the fact that the court is dealing with the act of a separate and independent department of government which the Constitution intends to be, so far as possible, co-ordinate in power with the executive and judicial departments, that is, co-ordinate in the sense that, like them, when acting within the limits of the power constitutionally granted it, it shall be independent of control by the others.

From necessity the Constitution must have intended that the legislative and executive departinents should have the power, in the first instance at least, of determining the extent of the powers constitutionally granted to them, and that, therefore, the judiciary should not substitute its judgment for theirs except in cases where there is no doubt that the action which has been taken is not constitutionally warranted.

"A decent respect for a co-ordinate branch of the Federal Government," says Justice Strong in Knox v. Lee,16 "demands that the judiciary should presume, until the contrary is clearly shown, that there has been no transgression of power by Congress, all the members of which act under the obligation of an oath of fidelity to the Constitution."

And in the Sinking Fund Cases17 Chief Justice Waite says: "The declaration [that an act of Congress is void] should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute and this continues until the contrary is shown beyond a rational doubt."

In Ogden v. Saunders's Justice Washington says: "It is but a decent respect due to the legislative body, by which any law is passed, to presume in favor of its validity, until the

16 12 Wall. 457; 20 L. ed. 287. 17 99 U. S. 700; 25 L. ed. 496. 18 12 Wh. 213; 6 L. ed. 606.

violation of the Constitution is proved beyond all reasonable doubt."

Quotations similar to those given might be multiplied, all in substance stating this general rule, declared by the Supreme Court from the first years of its existence, that an act of Congress, with reference to its constitutionality, is to receive the benefit of every reasonable doubt.19

19 This principle of construction has received a most philosophical examination in the essay of Professor Thayer, entitled The Origin and Scope of the American Doctrine of Constitutional Law, and from this source the substance of the immediately following paragraphs are taken.

In giving to a legislative interpretation the benefit of every rational doubt as to its constitutionality, the court in effect says, that it does not attempt to say what its own best judgment is as to the point at issue, but whether it is within the limits of reason for the legislature to give to the Constitution the construction it has given. The case is thus quite similar to the function of a judge when called upon to set aside the verdict of a jury, or of a jury when passing upon the question of self-defense in a criminal trial, or of negligence in an action of tort, or the responsibility of an inferior for acts done at the order of a superior. "The doctrine," says Thayer, ". . is this, that in dealing with the legislative action of a co-ordinate department, a court cannot always, and for the purpose of all sorts of questions, say that there is but one right and permissible way of construing the Constitution. When a court is interpreting a writing merely to ascertain or apply its true meaning, then, indeed, there is but one meaning allowable; namely, that which the court adjudges to be its true meaning. But when the ultimate question is not that, but whether certain acts of another department, officer, or individual are legal or permissible, then this is not true. In the class of cases which we have been considering, the ultimate question is not what is the true meaning of the Constitution, but whether legislation is sustainable or not."

Again, Thayer says: "The courts have perceived with more or less distinctness that this exercise of the judicial function does in truth go far beyond the simple business which its judges sometimes describe. If their duty were in truth merely and nakedly to ascertain the meaning of the text of the Constitution and of the impeached act of the legislature, and to determine as an academic question, whether in the court's judgment the two were in conflict, it would, to be sure, be an elevated and important office, one dealing with great matters, involving large public considerations, but yet a function far simpler than it really is. Having ascertained all this, yet there remains a question the really momentous question whether, after all, the court can disregard the act. It cannot do this as a mere matter of course merely because it is concluded that upon a just and true construction, the law is unconstitutional. . . . It can only disregard the act when those who have

§ 10. Presumption in Favor of the Constitutionality of a State Statute.

The rule of construction that has been under consideration has especial application to acts of Congress. When the constitutionality of a state law is involved, the principle is not always applicable. If the question at issue is as to whether a given power resides in the Federal Government or in the States, the fact that a state legislature in its enactment has asserted that it is vested in the States, is no presumption in favor of the validity of this the right to make laws have not merely made a mistake, but have made a very clear one, so clear that it is not open to rational question. That is the standard of duty to which courts bring legislative acts: that is the test which they apply,- not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the Constitution has charged with the duty of making it. This rule recognizes that, having regard to the great, complex, ever-unfolding exigencies of government, much which will seem unconstitutional to one man, or body of men, may reasonably not seem so to another; that the Constitution admits of different interpretations; that there is often a range and choice of judgment; that in such cases the Constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional."

Judge Baldwin, in his work on The American Judiciary (p. 103), asserts that, inasmuch as the judgment of the Supreme Court holding unconstitutional an act of Congress is often, and indeed usually, rendered by a divided court, the principle that a congressional statute will not be held void so long as there is a reasonable doubt as to its invalidity, is not applied. "The majority must concede," he says, "that there is a reasonable doubt whether the statute may not be consistent with the Constitution, since some of their associates must have such a doubt, or go further and hold that there is no inconsistency between the two documents, the statute and the Constitution." This argument is not convincing. Admitting that either one or the other of the two opinions must be conceded to the dissenting justices, it does not follow that the doctrine of reasonable doubt is shown to be repudiated. The question which the Supreme Court, as a court, has to decide is as to the existence of this reasonable doubt. There may of course be a difference of opinion as to this, but it is still this fact which the court seeks to determine and which controls its decision. It is no more proper to say that the principle is repudiated when the court is not unanimous, than to hold that in passing by a divided court upon a question of contributory negligence, the principle of reasonable doubt is not applied.

As to whether in recent years courts in fact are guided by the rule under consideration, see article by W. F. Dodd, "Growth of Judicial Power," in Pol. Sci. Quar. XXIV, 193.

decision. The Supreme Court in passing finally upon this point is not, then, called upon to review the act of a co-ordinate department, but has to decide between the conflicting claims of two governments, and, quite properly, feels itself at liberty to decide the point as an original proposition; namely, upon the basis of its own judgment as to what is the most reasonable construction of the constitutional provisions involved.

If, however, the state law, whose constitutionality is questioned, is with reference to a matter admittedly within the province of the States, and the question is simply whether that power has been properly exercised, there is held to be a strong presumption that the act is constitutional. Thus, for example, if it is a question whether the States have the power to regulate interstate commerce, or to tax a national bank, or to naturalize aliens, or enact bankruptcy laws, there is no presumption in favor of the constitutionality of acts in which the state power is asserted. If, however, it is a question, for example, whether the police powers, admittedly belonging to the States, have been constitutionally exercised, the presumption is that they have been so exercised.

An excellent illustration of this last, is seen in the treatment by the Supreme Court of the oleomargarine laws of Pennsylvania in the case of Powell v. Pennsylvania,20 decided in 1887. The plaintiff in error had been indicted for selling oleomargarine, plainly marked as such, in violation of a Pennsylvania law absolutely forbidding the sale and production of that commodity within the State. Powell offered to prove that the oleomargarine was pure and as wholesome as butter, and that, in fact, it differed from butter only in that it had a slightly smaller per cent of a substance termed butterine, which gave a flavor to but had nothing to do with the wholesomeness of the product. He claimed, therefore, that a law forbidding the production and sale of this article was not a proper exercise of the police powers of the State, and operated to deprive him of that liberty and property which the Fourteenth Amendment to the federal Constitution guaranteed him. The Supreme

20 127 U. S. 678; 8 Sup. Ct. Rep. 992; 32 L. ed. 253.

2

Court of the United States, without questioning the facts asserted regarding the wholesomeness of oleomargarine, upheld the state law, declaring that it could not "adjudge that the defendant's rights of liberty and property have been infringed by the statute of Pennsylvania, without holding that, although it may have been enacted in good faith for the objects expressed in its title, namely, to protect the public health and prevent the adulteration of dairy products and fraud in the sale thereof, it has, in fact, no real or substantial relation to those objects." This, the Supreme Court said, it could not affirm. Whether or not the law is needed as a protection to the public, the court declared to be a question of fact belonging primarily to the state legislature to determine. "And," the court continued, "as it does not appear upon the face of the statute, or from any facts of which the court must take judicial cognizance, that it infringes rights secured by the fundamental law, the legislative determination of those questions is conclusive upon the courts."

When the federal Supreme Court is called upon to consider the constitutionality of a state law as determined by its conformity with the Constitution of the State, the state Constitution is construed as having for its general purpose the placing of limitations upon the powers of the legislature; whereas, of course, the federal Constitution is viewed as a grant of legislative power. In other words, whereas the federal legislature is construed to have only those powers granted to it expressly or impliedly by the federal Constitution, the state legislatures are considered to possess all powers not expressly or impliedly withdrawn from them by the federal or respective state Constitutions.

In those cases in which the courts of the States are called upon to consider the constitutionality of the acts of their own lawmaking bodies as tested by the federal or their own state Constitutions, they of course have to deal with the acts of a department of government co-ordinate in power with themselves; and, therefore, they hold themselves, or at least should hold themselves, bound in all cases to give to the laws that same benefit of rational doubt which the federal Supreme Court gives to acts of Congress.