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The Origin and Scope of the American Doctrine of Constitutional Law

Author(s): James B. Thayer
Source: Harvard Law Review, Vol. 7, No. 3 (Oct. 25, 1893), pp. 129-156
Published by: The Harvard Law Review Association
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OCTOBER 25, 1893.

No. 3.

did our American doctrine, whi6h allows to the judiciary the power to declare legislative Acts unconstitutional, and to treat them as null, come about, and what is the true
scope of it?
It is a singular fact that the State constitutions did not give
this power to the judges in express terms; it was inferential. In
the earliest of these instrutmientsno language was used from which
it was clearly to be made out. Only after the date of the Federal
constitution was any such language to be found; as in Article XII.
The existence of the
of the Kentucky constitution of I792.
power was at first denied or doubted in some quarters; and so late
as the year I825, in a strong dissenting opinion, Mr. Justice Gibson,
of Pennsylvania, one of the ablest of American judges, and afterwards the chief justice of that State, wholly denied it under any
constitution which did not expressly give it. He denied it, therefore, under the State constitutions generally, while admnitting that
in that of the United States the power was given; namely, in the
second clause of Article VI., when providing that the constitution,


I Read at Chicago, August 9, I893, before the Congress on Jurisprudence and Law

" for two reasons. It has much the ablest discussion of the question which I have ever seen.declare a cantonal or State law invalid when it conflicts with the Federal law. 3d ed. and from experience of the necessity of the case. as France. Clymer. which. have written constitutions. Com. 127. Germany. ubi supra. Gibson afterwards accepted the generally received doctrine. in Norris v. they are quite inadequate. which derive whatever strength they possess from being formally iniscribed in the constitution. St. to refer to the fact that other countries." 1 So far as the grounds for this remarkable power are found in the mere fact of a constitution being in writing. Madison. in either counitry. i." 2 How came we then to adopt this remarkable practice? Mainly as a natural result of our political experience before. Neither the written form nor the oath of the judges necessarily involves the right of reversing. p.. and that such a power is not recognized there. while the Federal courts cannot annul a Federal law. has been overpraised.the War of Independence. in his admirable Law of the Constitution. -by 1 This opinion has fallen strangely out of sight. The late convention [apparently the one preceding the Pennsylvania constitution of I838] by their silence sanctioned the pretensions of the courts to deal freely with the Acts of the legislature. in the preface to a valuable collection of papers on the " Constitutionial History of the United States. not excepting the judgment of Marshall in Marbury v. remarks that " there is not in Europe to this day a court with authority to pass on the constitutionality of national laws. II. 430. 2 Pa." says Dicey. Their true character is that of maxims of political morality. or the determination of those departments that they are so authorized.. as I venture to think. anything in the constitution or laws of any State to the contrary notwithstanding. 281 (1845). and the laws and treaties made in pursuance thereof. " The restrictions. as to possible qualifications of this statement." 2 Ch." Compare Dicey. were enforced by various means. and Switzerland. governed under written charters of government proceeding from the English being colonists. and Bryce.130 HARVARD LAW REVIEW. It is enough. . note (1st ed. since they are not rules which in the last resort will be enforced by the courts. and the judges in every State shall be bound thereby." said the Chief Justice to counsel. or disregarding any action of the legislature or the executive which these departments are constitutionally authorized to take. so many written constituforfeiture of the chartions. they may. " shall be the supreme law of the land. " placed on the action of the legislature under the French constitution are not in reality laws. " I have changed that opinion. in confirmation of this. p. The terms and limitations of these charters. ." p. and from the resulting support of public opinion.). as seen in the Development of American Law. or in jtudges being sworn to support it. President Rogers. Am. displacing. ii. But in Germany and Switzerland.

and there was no longer an external sovereign. 13I ters. so might they be enforced through the colonial courts.. declaring " null and void " a provincial Act of niearlythirty years' stanidinig. necessary procedure when our own courts enforced the same rights that were enforced here by the appellate courts in England. by Act of Parliament. addressed to each of their own number. After this the charters. The sovereign himself. Winthrop. No higher power existed to support these orders by conptilsion of the ordinary sort. iv. were not so many orders from without. An external authority had imposed the terms of the charters. Soc. 94. in any regular course of events he had no organ to enforce his will. All this colonial restraint was onily the usual and normal exercise of power. Soc. which simply performed an ordinary function in enforcing them. sixth series. Our conception now was that "the people" took his place. by disregarding as null what went counter to them. the authority of a paramotuntgovernment. Savage For the famous cases of Lechmere v. Our practice was a natural result of this. but it was by no means a necessary one.' The Revolution came. . with a king and legislature and courts of its own.ourselves. 496. Coll. So far as existing institutions were left untouched. found in Mass. Mellen Chamberlain. and still more obviously the new constitutions.. fully organized and equipped for every exigency of disobedience. The superior right and authority of this government were fundamental here. Winthrop (1727-28). Coll. and Clark v. except 1 Phillips v. by the direct annulling of legislation by the Crown. that is to say. and it was only a usual.AMERICAN DOCTRINE OF CONSTITUTIONAL LA W. they were precepts from the people themselves who were to be governed. For the reference to this volume I am indebted to the HoII. note. having written these expressions of his will. the People. These charters were in the strict sense written law: as their restraints upon the colonial legislatures were enforced by the English courts of last resort. Conn. had retired into the clouds . in Lechmere v. and fully recognized. Hist. by juidicial proceedinigs and an ultiinate appeal to the Privy Council. orderly. and especially to those who were charged with the duty of conductinig the government. and what happened thien? Simply this: we cut the cord that tied us to Great Britain. (I734). . our own home population in the several States were now their own sovereign. backed by an organized outside government. Hist. of Boston. see the Talcott Papers. Tousey (1745). they were construed by translating the name and style of the English sovereign into that of our new ruler. T'he decree of the Privy Council.

And yet it happened that no new provisions were made to meet it. by a mere legislative Act. I am indebted to a learned article on " The Relation of the Judiciary to the Conistitution" (i9 Am. namely. Meigs remarks. and the same view was held in Connec1 Varnum's Report of the case (Providence." issued by the committee of a public meeting of "the violent Whigs. " With an Historical Introduction" (Morrisania. whereby they might conitrol the Supreme Legislative power. or worked amiss? Here was really a different problem from that which had been presented under the old state of things. Weeden seems to indicate an impression in their minds that the change from colonial dependence to independence had made the legislature the substitute for Parliament. with a like omnipotence. xxxiii) "That there should be a power vested in Courts of Judicature.. Meigs. i866). Dawson's edition of this case. and was referred to as unsettled by various judges in the last two decades of the last century. those to whom his orders were addressed in these documents. Trials. It gives all the earliest cases. I75) by William M. as is well known. in the case of Rutgers v. Law Rev.1 Btut it is instructive to see that this new application of judicial power wvasnot universally assented to. . 1786. 1787). 2 Chandler's Crim. ple of Connecticut lived till i8i8. xxiv et seq. anid. The surprise of the Rhode Island legislature at the action of the court in Trevett v. The old methods and the old conceptions were followed. served their turn until 1842 . independent of any King or Prince whatsoever. the case of Trevett v. and a number of others. in the Rhode Island SuprenmeCourt in. S. as against a legislative Act. 2 And so of the excitement aroused by the alleged setting aside of a legislative Act in New York in 1784.132 HARVARD LA4W REVIEW. it was tupon this that one of tlhe early cases of judicial action arose for enforcing constitutional provisions under the new order of tlhings. under the sole authority of the People tlhereof. pp. if they failed. In Connecticut. As Mr. In an " Address to the People of the State. Weeden. and remove all security of property. Such powers in courts would be destructive of liberty. and then two or three familiar fundamental rtiles of liberty and good government were added as a part of it. of the Philadelphia bar." it was declared (pp. the charter of I662 was declared to continue "the civil Constitution of the State. Esq. 269. unaltered. It was denied by several mernbers of the Federal convention. Waddington. C. in I776. we think is absurd in itself. How then should his written constitution be enforced if these agencies did not obey him.2 In Vermont it seems to have been the established doctrine of the period that the judiciary could not dis-regard a legislative Act. the New York case does not appear to be really one of holding a law unconstitutional. Under this the peoIn Rhode Islind the charter." For the reference to this case.

Wickwire. or to pronounce them void for any cause.. and in i Bryce. Ist ed. Coin. In the preface to I D. Chipman's (Vermont) Reports." It may be remarked here that the doctrine of declaring legislative Acts void as being contrary to the constitution. The American cases sometimes referred to as deciding that a legislative Act was void. citinig Bowman v.lish writers. the learned reporter. Rep. writing (in I824) of the period of the Vermont Constitution of I777. as it was phrased. 22 et seq. or even to question their validity.3 the author argues strongly and elaborately against the power of the judiciary to disregard a legislative enactment. 50 et seq.1 for the first time. i62. X D.. Newwill be found.. 237. afterwards chief justice of that State. Esq. James Otis had urged in his argument that " an Act of Par]iament against the Constitution is void" (Quincy. I believe. 2 . but in no case within my knowvledge has it ever been enforced where it was the single and necessary ground of the decision. in Quincy. as beinig contrary to the first principles of morals or of government. See the note at Pp-520. I Bay." published in I795. It has been repeated here. he adds: "Long after the period to wlhich we have alluded. Such a doctritne was thought to have been asserted by Eng. wvasconsidered aniti-republican. the doctrine that the constitution is the supreme law of the land.2 In Swift's " System of the Laws of Connecticut. or. to require no burgh. while men1 Dupuy v. 8 Vol. n. to the laws of inature.530. and even the laws of nature. nor can it be. and that the judiciary have authority to set aside . 431. that courts might disregard such acts if they were contrary to the fundamental maxims of morality. .. .e. Johns. says that " No idea was entertained that the judiciary had atny power to inquire into the constitutionality of Acts of the legislature. and even by jtldges at times. 56.AMERtICAN DOCTRINE OF COASTITUTIONAL LAW. Acts repugnant thereto. Am. Chipman. 252. citinlg Gardner v.. on a careful examination. speaking of the year I785. Middleton. 133 ticut. now iIr.. by our earlier judges. we find this court announcing an Act of the State legislature to be " void as against the constitution of the State and the United States. Justice Gray. of the Supreme Court of the United States.. Ch. 529. pp. 5I. i. n. as expressed in I795 by Swift. understood to have been prepared by Horace Gray. was probably helped into existence by a theory whlich found some favor among our ancestors at the time of the Revolution.such explanation. but was never acted on.g. Quincy's Rep. This subject is well conisideredin a learned note to Paxton's Case (I761)." In i8I4." And at page 25.. as matter of speculation. 474). unless as a revolutionary measure. and occasionally by later ones. relating to Writs of Assistance.

" With like emphasis." As late as I807 and i8o8. I93. the juidicialshall never exercise the legislative and executive powers or either of them.e. The legislative department. Professor Wambaugh. and added to the other bulwarks of our written constitutions. with curious explicitness. to wit. and not of men." he says. an Act authorizing conviction for crime without evidence. " so manifestly unconstitutional that it would seem wrong to require the judges to regard it in their decisions. 38-40. the executive shall never exercise the legislative and judicial powersor either of them. since the power now in question was a purely judicial one.. in the first place. to the end.. Art. those which are executive to another. Const. how was the power to be conceived of ? Strictly as a judicial one. preface. as it is that the legislature will exceed their constitutional authority. and in giving one of them to each department. 6th ed. .. being of one of these departments.. I Chase's Statutes of Ohio. judges were impeached by the legislature of Ohio for holding Acts of that body to be void.2 "Shall never exercise the executive and judicial powers. 2 Part I. When at last this power of the judiciary was everywhere established. said the Massachusetts constitution in 1780." Therefore. or either of them." " It will be agreed. there were many cases where it had no operation. in I792. or securing to the legislature their own seats for life. . " it is as probable that the judiciary will declare laws unconstitutional which are not so. those which are legislative to one." But he makes the very noticeable admission that there may be cases so monstrous.1 II. 8 Art I.shall exercise any power properly belonging to either of the others. g. except in the instances hereinafterexpresslypermitted. No person or collection of persons. Lim. forbidden it to exerci5e either of the others. The State constitutions had been scrupulous to part off the powers of government into three. it may be a government of laws. 30. For the last reference I am indebted to my colleague. tioning that the contrary opinion " is very popular and prevalent. In the case of purely political acts and of the exercise 1 Cooley. n.134 HARVARD LAW REVIEW. the constitution of Kentucky 3 said:- "Each of them to be confided to a separate body of magistracy. and those which are judiciaryto another. had sometimnes.

for that wide margin of considerations which address tlhemselves only to the practical judg. as well as the judiciaryitself. vol. may treat it as void. This. then. as among all these legislative considerations. call for a peculiarly large method ini the treatment of them. that the Act indeed must be void. . Within that margin. when) presentingf tlhemselves in the courts for judicial action. do these questions. whether a particular disputed exercise of power was forbiddenl by the constitution. 135 of mere discretion. Furthermiiore. that any question for the courts can regularly emerge. the constitutional laNv-makersmust be allowed a free foot. . It is only as litigation may spring up. and as the course of it may happen to raise the point of constittitionality. since the constitutions expressly intrust to the legislature this determination.AMERICAN DOCTRINEOFCONSTITUTIONAL LAW. such is the nature of this particular judicial question that the preliminary determination by the legislature is a fact of very great importance. 47. . to determine. is far fromnbeing the fact. Association. since thieir question is a naked judicial one. ranging here unfettered. Judge Cooley has lately said 1_ "The common impression undoubtedlyis that in the case of any legislation wlhere the bounds of constitutionalauthority are disregarded. and that any citizen. then. In -so far as legislative choice. however. that the mere legislative decision will acconmplish 1 Journal of the Michigan Pol Sc." Again. for they securel no revision of it. but especially they require an allowanice to be made by the judges for the vast and not definable ranige of legrislative power and choice. on the contrary. the judiciary could not interfere. the judges must not interfere. It mav be. the judiciary is perfectly competent to afford the adequiate remedy. . p. but they contemplate that this determination may be the final one. for the mere purpose of deciding a litigated question properly stubmitted to the court. the constitutions not merely intrust to the legislatures a preliminary determination of the question. it mattered not that other departments were violating the constitution. In doing this the court was so to discharge its office as not to deprive another department of any of its proper power. they cannot act without making it. may select one form of action or another. Not merely. i. its whole scope was this. or to limit it in tlle proper range of its discretion. where the power of the judiciary did have place.ment of a legislative body. Moreover. and refuseobedience. namely. they must accept and enforce their acts.

Only after three years from that did the question of its constitutionality come to decision in the Supreme Court of the United States. They would have been let in. and was renewed in i8i6. provides that the judges of the Supreme Court may take part in the legislative debates over " bills relating to civil . to a revision of the laws before they began to operate. they would not have been allowed merely this incidental and postponed control. and this not on mere grounds of courtesy or conventional respect. More important action.136 HARVARD LAW REVIEW. Now. in I79I. So of the legal tender legislation of I863 and later. it would be hard to think of. Yet when the first charter was given. to last for twenty years. found it for his interest to raise a judicial question about it. of i886. it is a result anticipated and clearly foreseen.1 As the oppor1 The constitutioni of Colombia. The judiciary may well reflect that if they had been regarded by the people as the chief protection against legislative violation of the constitution. enter into. it is the legislature to whom this power is given. but once for all. it ran through its whole life unchallenged in the courts. Yet it was the legislature that determined this question. art. the actual determinations of the body to whom it is intrusted are entitled to a corresponding respect. among the innumerable chances of his private affairs. except as some individual. It is plain that where a power so momentous as this primary authority to interpret is given. but of putting an interpretation on the constitution which shall deeply affect the whole country. vitally change. and professional opinion has always been divided. The constitutionality of it. except as some individual may find it for his private interest to carry the matter into court. this power. The constitutionality of a bank charter divided the cabinet of Washington. as it divided political parties for more than a generation. 84. results throughout the country of the profoundest importance in the before any judicial question can arise or be decided. not merely of enacting laws. even revolutionize the most serious affairs. more intimately and more seriously touching the interests of every member of our population. The local courts were divided on it. not merely primarily. was at first denied by the Supreme Court of the United States. although now upheld. but on very solid and significant grounds of policy and law. and of the legal tender laws of thirty years ago and later. -as case of the first and second charters of the United States Bank. as it was sometimes endeavored in the conventions to let them in. It is peculiarly important to observe that such a result is not an exceptional or unforeseen one.

who were to investigate the conduct of affairs. which is to decide upon this question finally.A4MERICAN4 DOCTRINE OF CONSTITUTIONAL LA4X. or in the alternative. to be chosen every seven years. the constitution of I777 provided a Council of Revisioni. shall be the stupremelaw of the land. the repassing of the Act. In New York. all violations of the constitution by any of the departments. since their whole power is a judicial matters and judicial procedure. in the supplement to the Annals of the Amierican Academy of Political and Social Science. There was. of 1777. It was. to whom all legislative Acts should be. and bind the judges there as against their own laws. it shall be submitted to the Supreme Court." And in the case of legislative bills which are objected to by " the governmitent" as unconstitutional. a double legislative chamber. ? 44) a Council of Censors was provided for. it may help us to understand why the extent of their control. in general. however. Arts. and at times adopted. i. It was proposed at various times that the general governr. that of New York. as againist a veto by the governmenit. But at last the convention. for January. composed in part of the judges. amonlg other things. short termiisof office. anld not with direct reference to the other departmenitsof the governimentof the United States itself. of which several of the judges were members. of the University of California. -upon these expedients. e. and constitutional laws anid treaties. See a translation of this constitution by Professor Moses. ? 47) anld Vermont (Const. was inserted with an eye to secure the authority of the general government as against the States. that much which is harmful and unconstitutional may take effect without any capacity in the courts to prevent it. anldtreaties. giving way in the constitution of 182I to the commoni expedient of merely requiring the approval of the executive. as an essential feature of any efficient Federal system. should also be narrowv. that a Privy Council to the Presidelnt should be appointed. rejecting all these.g. by both braniches of the legislature.. if the legislature insist on the bill. of I776. and uponithe declaration that the constitution. in Vermont from 1777 to I870. several of these expedielnts. perhaps by an increased vote. the greatest uiiwillingness to give the judiciary any share in the law-making power. The chief protections were a wide suffrage. and the so-called executive veto. That existed for more than forty years.submitted before they took effect." i8 . and shall binld the judges of the several States. all along true. if he refused it. In Pennsylvania this arrangement lasted only from 1776 to I790. as the phrasing of it indicates. are the supreme law of the respective States. settled down upon the common expedients of two legislative houses. and others. InI framinigthe constitution of the United States. to be a check upon each other. and that the President and the two houses of Congress mnightobtain opinionis from the Supreme Court. that the governiors of the States should be appointed by the United States. and by whom they must be approved. The first form of it was that "legislative Acts of the United States. I893We are much too apt to think of the judicial power of revising the acts of the other departments as our only protection against oppression and ruin. ent should have a negative oni all the legislation of the States. 137 tunity of the judges to check and correct unconstitutional Acts is so limited. and it was foreseen. This provision. 90 and I50. and should have a negative on State legislation. then. qualified by the legislative power of reconsideration anldenactment by a majority of two-thirds. But it is remarkable how small a part this played in any of the debates. e. when they do have the opportunity. were urged. and of an executtive revision and veto. In Pennsylvania (Const. and point out.

however. first pub. one. as two contracts or two statutes are construed and compared when they are said to conflict. This was put as a mere matter of course. They began by resting it upon the very simple ground that the legislatture had only a delegated and limited authority under the constitutions. Of this petty method we have many specimens.138 HARVARD LAW REVIEW. but in refusing to consider them at all. that these restraints. but on grounds applicable. -an courts sometimes describe it. See Lodge's editiosi. . in order to be operative. and. must be regarded as so muclh law. And so we miss that combination of a lawyer's rigor with a statesman's breadth of view which should be found in dealinig with this class of questions in constitutional law. xxxvi anldxliv. pp. as he con1 No. The reasoningywas simple and narrow. in point of fact. as the rior obligation. in I788. as being law. as Marshall said. that " it is a constitution we are expounding. we are told. of carrying into effect the constitution as being of supeordinary and humble judicial dpty. Stich was Hamilton's method in the Federalist. III.1 while discussing the Federal constitution.shed on May zS. yet in a perverted way which really operates to extend the judicial function beyond its just bounds. Their interference was but one of many safeguards. in administering this interesting jurisdiction. is the mere and simple office of construing two writinigs and comparing one with another. of declaring the true meanitng of each. Let us observe the course wlhich the courts. and. Inastead of takiing them into account and allowing for thetn as furnishing possible grounds of legislative action. to give matters a very different complexion. 78. have taken. In order. The rigor of this limitation upon judicial action is sometimes freely recognized. The court's duty. if they are opposed to each other. that they nmuistbe interpreted and applied by the court." these literal precepts about the nature of the judicial task have been accompanied by a rule of administration which has tended. in competent hands. and its scope was narrow. there takes place a pedantic and academic treatment of the texts of the constitution and the laws. This way of putting it easily results in the wrong kind of disregard of legislative considerations. in order to prevent the courts from forgetting. not merely in refusing to let them directly operate as grounds of judgment. to avoid falling into these narrow and literal methods. 1738. they are found only too easily to-day in the volumes of our current reports.

Polk. Kemper v. the judges put it that courts were simply to look at all the law. in I803 came Marbury v. the judiciary are to declare a legislative Act void which conflicts with the constitution. Va. 7 I Cranch. So.3 Patterson. in I793. p. and if two rules conflict. 137. Finally. i Martin. it was added. including the constitution: they were only to expound the law. the conclusions were necessary. such Acts are not law. this theory is essentially attached to a written constitution. on the Pennyslvania circuit. in South Carolina.AMERICAN DOCTRIVE OF CONSTITUTIONAL LA W.7 with the same severe line of argument. and to give effect to that part of it which is fundamental. And then.2 said that the constitution was a supreme law. 6 Whittington v. The people. 6 Lindsay v. it was no reason why another should abet it. have established written limitations upon the legislature. 42. the Supreme Court of North Carolina had argued that no Act of the legislature could alter the constitution. 38. in the Federal instrument this power is expressly given. 1 that the judges were as much bound by the constitution as by any other law. because one branch of the governmeint infringed the constitution. or else that instrument is reduced to nothing. and it was for the judges to declare and apply it. As the matter was put. In I796. But these-simple precepts were supplemented by a very signifiI Den d. 8 . Dorrance. Much of this reasoning. I39 ceived. Nothing could be more rigorous than all this. and the court's duty under it were precisely like any of its miost ordinary operations. to all others. & J. took no notice of the remarkable peculiarities of the situation. however. 460. and any Act inconsistent with it must be regarded by them as abrogated. these control all repugnant legislative Acts. 2 Bay. in I787. In Virginia. 20. Hawkins. one of the justices of the Supreme Court of the United States. in his Lectures at Philadelphia in I790-I79I.6 I802. it went forward as smoothly as if the constitution were a private letter of attorney. 2 Dall. Madison. in I795. it was said. they are without authority. And such. Bayard v. 304. Singleton. i H. 2 Vol i. 236.4 said that the constitution is the commission of the legislature. Wilson. if their Acts are not conformable to it. it is for the judiciary to say what the law is. 4 Vanhorne's Lessee v. what was subordinate must give way. Cas. to say which governs.5 the matter was argued by the court as a bald and mere question of conformity to paramount law. in was the reasoning of the General Court of Maryland. Com'rs.

Va. lIawkins.while the general power of the court is declared byother judges with histrionic emphasis. and every other court of reputationin the United States. the decision of which would involve consequences to which gentlemen may not .shall have power to declare the nullityof a law passed in its forms by the legislativepower." When did this rule of administration begin? Very early. In the earliest judicial consideration of the power of the judiciary over this be 1 Com. Justice. and brought into play large considerations not adverted to in the reasoning so far mentioned. it has been assumed as a principle in constitutional constructionby the Supreme Court of the United States. the president of the court. in remarking. have extended their ideas. by this court.3"But the violation must be plain and clear. in whom the judiciarypowers may in some sort be said to be concentrated. in declining to pass upon it. . while asserting the power of the court to hold laws unconstitutional. contraryto the plain terms of that constitution. 4 Bin." In the Federal convention of I787. that an Act of the legislatureis not to be declaredvoid unless the violation of the constitutionis so manifestas to leave no room for reasonabledoubt. of Pennsylvania. " How far this court. .an obiter discussion in Virginia in I782. 6o. Smith. In i8i i.140 HARVARD LAW REVIEW.2. We observe that it is referred to as thoroughly established in i8ii. 5. withoutexercisingthe powerof that branch. . v. In 1793. cant rule of administration. In trying to make the judges revise all legislative acts before they took effect. I 17. . stated this rule as follows: "For weighty reasons. remarked. . v. while the power of declaring laws unconstitutional was recognized. the limits of the power were also admitted. p. to consider it here. 2 Com. Tyler. a tremendous question. he added. and.1 Chief Justice Tilghman. or there might be danger of the judiciary preventing the operation of laws which might produce much public good.Pendleton. imiiportant." There is no occasion. when the General Court of Virginia held a law unconstitutional. I will which corrected their operation. Wilson pointed out that laws mig. foreshadowed the reasons of this rule. Cases. of which any report is preserved. indeed a deep. 8 Kemper v. 4 Call. but declining to exercise it in a particular case.

" In i8o8 in Georgia4 it was strongly put. and yet not so " unconstitutional as to In I796 Mr. Cooper v. Hylton. that without then determining whether the court could declare an Act of Congress void. as that the parts are equal to the whole. 5 Ell. Adm'rs of Stewart. Deb. But. Justice Charlton. Mr. asserted this power. in the Supreme Court of the United States. always distinguished for his clear assertion of the power in the judiciary to enactments. in the same court. no abstract rules of interpretation." In South Carolina. Telfair. . 344. This violation of a constitutional right ought to be as obvious to the comprehension of every one as an axiomatic truth." And in i8oo. if the legislature were to vest the executive power in a standing committee of the House of Represelntatives. on the circuit. 5 Adm'rs of Byrnev.2 said. in 1795. Now. there must be " a clear anid unequivocal breach of the Constitution.AMERICAN DOCTRINE OF CONSTITUTIONAL LA W. Justice Patterson.5 Chancellor Waties. Mr. in what manner should it be exercised? "No nice doubts. every mind would at once perceive the unconstitutionality of the statute. as being inseparable from theorganization of the judicial department. who had already. Ross. in a passage which hlas been cited by other courts with approval. ought to be resorted to in deciding on the constitutionaloperation of a statute. I shall endeavor to illustiate this: the first section of the second article of the constitution declares that the executive function shall be vested in the governor. no critical exposition of words. 141 dangerous and destructive. not a doubtful and argumentative implication. in I812. i7r. for the court. 75. he continued.3 as regards a statute of Georgia. I should not only declare the Act void. But when it remains doubtful whether the legislature have or have not trespassed on the constitution. justify the judges in refusing to give them effect." Justice Chase. 3 Dall. Ware v. 4 Dal]. Charlton.suitable in a contest between individuals. The judiciary would be authorizedwithout hesitation to declare the Act unconstitutional. but I should 1 2 3 4 Grimball v. 466. repeats and strongly reafdisregard unconstitutional firms it:" I feel so strong a sense of this duty that if a violation of the constitution were manifest. becatuse there is a possibility in such a case of the constitution being with the legislature. 14. held a legislative Act of Pennsylvania invalid. said that in order to justify the court in declaring any lawv void. a conflict ought to be avoided. In holding an Act constitutional. 3 Des. " I am free to declare that I will never exercise it but in a very clear case.

Saunders. By such a cautiousexercise of this judicial check. i6 Pick. It is supreme in all cases whereit is not restrainedby the constitution. for the court. 2I6). and as it is the duty of legislatorsas well as judges to consult this and conform their acts to it. to presume in favor of its validity. S." In Wellington et al. Chief Justice Waite. Chief justice Shaw. for the court.. . . 6th ed.. This confidence is necessary to insure due obedience to its autlhority. Justice Washington.. in my estimation. One branch of the government cannot encroach on the domain of another without danger. be a satisfactory vindication of it. Bk. assert this power and insist on its great value to the country. and so of the best preservative of the constitution. I2 Wheat. Congress is unconstitutional] should never be made except in a clear case. This has always been the language of this court when that subject has called for its decision. it must tend to diminish the reverence for the laws which is essential to the public safety and happiness. . 213 (1827). legislative body by which any law is passed. said: " If I could rest my opinion in favor of the constitutioiiality of the law . Lim. 700 (I878). on no other ground than this doubt. so it should be presumedthat all their acts do conform to it unless the contrary is manifest. said: " This declaration [that an Act of.' In the Sinking Fund Cases.. I am not. Every possible presumption is in favor of the validity of a statute.. 428 (I862). so felt and acknowledged. Mr." In Com. and I know it expresses the honest sentiments of each and every member of this bench. and supported by emphatic judicial declarations and by a long list of citations from all parts of the country. It is but a decent respect due to the . until its violation of the constitution is proved beyond all reasonable doubt. after remarking that the question was a doubtful one. The safety of our institutions depends in no small degree on a strict observance of this salutary rule. the public confidence in it will be promoted. Chief justice Bigelow. If this be frequently questioned. for the court. and its salutaryeffects be justly and fully appreciated. said: " It may be well to repeat the rule of exposition which has been often enunciated by this court. Five Cents Sav. . that where' a statute has been passed . 87 (i834). if frequentor on dubious grouinds. think I rendered a more importantservice to my country than in disBut while I chargingthe ordinaryduties of my office for many years. The interferenceof the judiciary with legislative Acts. I am not insensibleof the high deferencedue to legislativeauthority. 99 U. no jealousyof it will be excited. that when called upon to pronounce the invalidity of an Act of legislation [they will] never doclare a statute void unless the nullity and invalidity of the Act are placed. It would be unwise on another account. beyond reasonable doubt.might occasion so great a jealousy of this power and so general a prejudice against it as to lead to nmeasures ending in the total overthrowof the independenceof the judges. therefore.I42 HAR VARD LA WVRE VIE W. In Ogden v. Petitioners."1 1 This well-known rule is laid down by Cooley (Const. v.. in their judgment. The validity of tlle law ought not then to be questioned unless it is so obviously repugnant to the constitutionthat when pointed out by the judges. disposed to examine with scrupulousexactness the validityof a law. remarked that it was proper " to repeat what has been so often suggested by courts of justice. 5 Allen. that alone would.. all men of sense and reflection in the communitymay perceive the repugnancy. and this continues until the contrary is shown beyond a rational doubt.

Duncan. 6 Fla. 12 (1813). I7 N. . it is not for this branch of the government to set an example of encroachment upon the province of the others.satisfied beyond a reasonable doubt .). 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 judges sometimes describe. .." And he goes on to state a corollary of this " well-established rule. Ranney. In further support of this position may be cited any number of decisions by the State courts. as an academic question. the presumption is in favor of its validity. J. that the judicial power can refuse to execute it.. but. by judicial sentence. (for the court). i Oh. at the same time. not susceptible of doubt. The adjudged cases speak a uniform language on this subject. 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. it was said by the court: " We reserve to ourselves the authority to declare null any legislative Act which shall be repugnant to the constitution. (with the concurreniceof the rest of the court). the pritnciplesby which a court should be guided in such an inquiry are equally clear. 539. 6ro (6856). I have accumulated these citations and run them back to the beginniing. a case must be presented in which there can be no rationlal doubt..that the purpose for which the tax is authorized is private. said: " A legislative Act is not to be declared void upon a mere conflict of interpretation between the legislative and the judicial power. If there be one to be found which constitutes an exception to the general doctrine." In The Cincinnati. Cowel. we must be fully satisfied . to say that before we can declare this law unconstitutional. not to be exercised lightly or rashly. And this results from the very nature of the question involved in the inquiry. . 514. (for the court). Such interference can never be permitted in a doubtful case. 56 N. The County Commissioners. it has escaped our search. Ladd. (for the court). St. but it must be manifestly so. J. said: " Before the court will deem it their duty to declare an Act of the legislature unconstitutional. The Supervisors of Orange.AMERICAN DOCTRINE OF CONSTITUTIONAL LAW." In Exparte M'Collum. it should clearly appear that the Act cannot be supported by any reasonable intendment or allowvable presumption. 534 (1876). what has been enacted by the law-making power.. etc." (Cited with approval in Johnson v. Railroad Company. . void unless its invalidity is established beyond reasonable doubt. 235 (I858). H. and that the court will not declare it to be . 564 (1823). said: " While the right and duty of interference in a proper case are thus unideniablyclear. Before proceeding to annul. both upon principle and authority. Dupont. whether in with all the forms and solemnities required to give it the force of law. .. It is only the enunciation of a rule that is now elementary in the American States. (for the court)." . 9." In the People v. It means far more than that. . and to determine. a mere expression of courtesy and deference. that doubt must be given in favor of the law. J. Keene. J. p. It is only when manifest assumption of authority and clear incompatibility between the constitution anidthe law appear. Weyman.. If there exist upon the mind of the court a reasonable doubt. 77 (1852).. . Ib. . J. said: "1It is a most grave and important power.. Y." In Perry v. Harris.. An unbroken chain of decisions to the same effect is to be found in the State courts. 3 Martin (La. . in order that it may be clear that the rule in question is something more than a mere form of language. 143 IV. and not public. I COW.) In Cotton lv." In Syndics of Brooks v. said: " Certainly it is not for the court to shrink from the discharge of a constitutional duty. nor in any case where it cannot be made plainly to appear that the legislature has exceeded its powers.

that is the test which they apply. it does not appear to me possible to explain the early. 68. and making too much turn upon the form of a phrase? No. but have made a very clear one. complex. that the constitution often admits of different interpretations. That is precisely the significance of the rule of administration that the courts lay down. It cannot do this as a mere because it is concluded that upon a matter of course. 6th ed. that there is often a range of choice and judgment. cited with approval by clear that it is not open to rational question. much which will seem unconstitutional to one man. -merely just and trtue construction the law is unconstitutional. one dealing with great matters. and. be an elevated and important office. to declare it constitutional. and that whatever choice is rational is constitutional.. but yet a function far simpler than it really is. unconstitutional. Comr. may there find it his duty. -not their own judgment as to constitutionality. Will any one say. to be sure. in his judgment. yet there rereally momentous question. may reasonably not seem so to another.. having been passed by the legislature in spite of his opposition. This is the principle which the rule that I have been illustrating affirms and supports. but leaves open this range of choice. comes before him judicially. 1 Const. after mains a question-the all.-431. .. But whatever may be said of particular instances of unguarded or indecisive judicial language. - . That is the standard of duty to which the courts bringmerely legislative Acts.whether. but their conclusion as to what judgmient is permissible to another department which the constitution has charged with the duty of making it. having regard to the great. This rule recognizes that. It can only disregard the Act when those who have the right to make laws have not merely made a mistake. I am aware of the danger of doing that.. the court can disregard the Act. i.I44 HARVARD LAW REVIEW. You are over-emphasizing this matter. I think not. ever-unfolding exigencies of government. involving large public considerations. Having ascertained all this. Lim. The meaning and effect of it are shortly and very strikingly intimated by a remark of Judge Cooley. or body of men. it would. Am. although he has in no degree changed his opinion. being subsequently placed on the bench.' to the effect that one who is a member of a legislature may vote against a measure as being. the court's judgment the two were in conflict. that in such cases the constitution does not impose upon the legislature any one specific opinion. when this measure.Ist ed.

Incidentally. and the reasons against the validity of the Act cannot ordinarily be so plain as to leave no manner of doubt. . Farrar's Rep. Mr." If the courts retire. for the court. having too definite a meaning. . Such was his argument. arguing. as in other cases. with more than ordinary deliberation. 344. " Experience shows that legislatures are in the constant habit 6f exerting their power to its utmost extent. . . Case. " that in no doubtful case wotuld it pronounce a legislative Act to be contrary to the Constitution. . I2 S. the Supreme Court of New Hampshire declared that they could not act without " a clear and strong conviction. 36. But notwithstandinig this. in his argument of the Dartmouth College case. ." Legislative Acts. The rule. & R. but . Dart. Justice Gibson disputed it in I825. require for their passage at least a majority of the legislature. whenever a plausible ground of doubt can be suggested. Marshall. . but on the existence of any discrepancy at all. and insisted upon quite too emphatically. declared. together 2 Eakin v. to allow us to thitnk it a mere courteous and smoothly transmitted platitude. 330. while denying the whole power to declare laws unconstitutional. in New Hampshire. It has had to maintain itself against denial and dispute. ought to act . '9 3 7 Pick. one of the leaders of the New Encrland bar. when the great Cllarles River Bridge Case3 was before the Massachusetts courts. . that the courts . the party's rights " would depend. the final decision. in I8I9. and the qualifications of it. Coll." He conceded that the courts shotuld treat the legislature "with great decorum. not on the greatness of the supposed discrepancy with the constitution. " and on error. This rule was also denied in I817 by Jeremiah Mason. .AMERICAN DOCTRINE OF CONSTITUTIONAL LA W. really requires the coturt to surrender its jurisdiction. in I829. at its earlier stage." Again. then. and where the reasons are so manifest that none can doubt. . he insisted (page 352). Raub." But the majority of the court reaffirmed their power. The form of it is in language too familiar to courts. 145 constant. and emphatic statements upon this subject on any slight ground. Daniel Webster. with equal emphasis. the legislature will absorb all power. in his celebrated opinion at Washington. adopted with too general an agreement. must be according to the unbiassed dictate of the understanding. that they ought not to declare Acts of the legislature unconstitutional unless they come to their conclusion with absolute certainty. he said.1 If there be any such power. . .2 He said substantially this: "An erroneous opinion still prevails to a considerable extent. . .

. of daily application in our courts. who was Webster's associate counsel in the case last mentioned. Justice Wilde in giving his opinion. . i6 Pick.and the judge is to hold it valid because its unconstitutionalityis doubtful. Petr. . if it were proper. being now Chief Justice of Massachusetts. "imembers of the legislature sometimes vote for a law. he added. Lemuel Shaw." said Mr. Judicial tribunalsare the only ones suitable for the investigationof difficult questionsof privateright. responsibility rests nowhere.that more than six membersvoted for it because the unconstitutionalityof it was doubtful. courts will . It is the privilegeof an Americanjudge to decide on constitutionalquestions. he said (p. If the legislatureis to pass a law because its unconstitutionalityis doubtftul. All such cases. in what a predicament is the citizen placed! The legislaturepass it . " We could show. for the plaintiff.. it is the more calculated to strike the attention because it marks a familiar and important bene esse. that . As to the form of it. "Such a declaration. must be treated as having been deliberately meant. they held that body to its own duty and its own responsibility. We must assume that the legislature lhave done their duty." A rule thus powerfully attacked and thus explicitly maintained. . Besides. in situ1 Wellitngton.) involve some doubt. never declare a statute void unless the nullity and invalidity are placed beyond reasonable doubt. repeated with much emphasis " what has been so often suggested by courts of justice. if the question is not met and decided here on principle. it is not to be supposed that the legislature will pass an Act palpably unconstitutional. with Lemuel Shaw. "should never be made but when the case is clear and manifest to all intelligent miinds. The correct ground is that the court will interfere when a case appearing to be doubtful is made out to be clear. in a case where Jeremiah Mason was one of the counsel. 442. leavingit to this court to determinethe question." But the court did not yield to this ingenious attempt to turn them into a board for answering legislative conundrums. . Instead of deviating from the line of their duty for the purpose of correcting errors of the legislature. both as regards its stubstance and its form. . on the consideration that the question may be determined by the judges. .I46 HARVARD LA W REVIEW. of the constitutionality of wvhichthey doubt." Five years later. . 87. and we must respect their conistitutional rights and powers." This Act passed in the House of Representatives by a majority of five or six. denied the existence or propriety of this rule.

be liable to be shot by a court-martial if he disobeys an order.4 It mu. 1 3d ed. Rep. I887. are or are not libellous. Thayer's Cas. Michigan. when refusing to set aside a verdict. I am inldebted for these cases to Professor Beale's valuable collection of Cases onl Cl-iminlalLaw (Cambridge. 279-28I." It is the sarme discrimination upon which the verdicts of juries are revised every day in the courts. It was so held in Riggs v. . . E. 177. . State. Probably.J. . Conist. "come to decide whether a particular set of words . 85 (Tenn. 8 Cap. . . S. 2 . and in the civil law of tort in questions of negligence." he said. Circ. Lawes. i866). it would be found that the order of a military superior would justify his inferiors in executing any orders for giving which they might fairly suppose their superior officer to have good reasons.)." he goes on. 1893). & Counties 13anikv. 7 App. 4 Belt v.. he said. indeed. p. .. as we all know. and to be hanged by a judge and jury if he obeys it. in his " Law of the Constitution. the actions. . they have to decide a very different question from that which they have to decide when determining whether another tribunal . and United States v. it may be added. The same doctrine is laid down by Judge Hare in 2 Hare. The only line that presents itself to my mind is that a soldier should be protected by orders for which he might reasonably believe his officer to have good grounds. that come into more and more prominence as our jurisprudence grows more intricate and refined. that the difference jury have done. Ev. Cas. appear." 2 This is the distinction adverted to by Lord Blackburn in a leading modern case in the law of libel." says Dicey. 31 Fed. 920. Law. Ct. reasonably have supposed at that time to be true? It is the discrimination laid down for settling that difficult question of a soldier's responsibility to the ordinary law of the land when he has acted under the orders of his military superior. it is constantly resorted to in the criminal law in questions of selfdefence. Dist. Am. . different officials. 147 ations where the rights. "that reasonable tnen could not fairly find as the It has been said. " He may.3 "When the court. . . 3 Cold. Jtustice Stephen. In one application of it. " . It is a distinction and a test. 776. Henty. quoting with approval one of the books of Mr. and different individuals have to be harmonized. in answering the question what might an inidividual who has a right and perhaps a duty of acting under given circumstances. might not unreasonably hold such words to be libellous." 1 " as it has been well said. . and the authority of different departments.A MERICAN DOCTRINE OF CONSTITUTION'AL LA W. Browin.. as in a farnous case where Lord Esher applied it a few years ago. n. 710 (U.

A court catnonllyarrest the proceedilngs and declare a levy void when the absence of public initerest in the purpose for which . 134 U. Minnesota. when he says of a particular question: " Primarily the determination of what is a public purpose belongs to the iegislature. as regards legislative action. .' is surely not the same thing as to ask whether there is room for a reasonable difference of opinlion. unclassified residue of legislative authority which is called. and the solutioIn of both depends on the opinion of the judges. does not divide its duty with the judges. The legislature in determining what shall be done. All cases of doubt must be solved in favor of the validity of legislative action. or any part of that vast. police power. there is often that ultimate question.3 I Chic.beyond which the taxing power. nor must it conform to their conception of what is prudent or reasonable legislation. cannot go without violating the prohibitions of the constitution or crossing the line of its granits. Law. and whether it does so or not. v. and its action is subject to no review or restraint so long as it is not manifestly colorable. 2d ed. 2 Compare Law and Fact in Jury Trials.148 HARVARD LAW REVIEW. Co. the police power. and only becomes judicial when there is a plain excess of legislative auithority. &c.' viz. that of the reasonableness of a legislature's exercise of its most undoubted powers..2 But in such cases it is always to be remembered that the judicial question is a secondary one.. is evanescent. which excluded the parties from access to the courts for an ultimate judicial revision of the action of the commission. not always initelligently. for the obvious reason that the question is legislative. the power of eminent domain. which was vindicated for the judges in a recent highly important case in the Supreme Court of the United States. but the mode in which the subject is approached makes the greatest difference. was constitutional. Ry. 418. between [this] rule and the question whether the judges would have decided the same way as the jury.." In like manner. this action must not degenerate into an irrational excess. in reality. something different and forbidden. that of eminent domain. of the permissible limit of those powers. S. To ask ' Should we have fotuindthe same verdict. If a legislature undertakes to exert the taxing power.e. The last part of the observation is true. so as to become. i68. 3 There is often a lack of discrimination in judicial utterances on this subject. must be determined by the judges. the boundary . . g. I67. The judicial function is merely that of fixing the outside border of reasonable legislative action. what it is reasonable to do. and legislative power in general. 4 if it were supposed that the legislature had to conform to the judge's opinion of reasonableness in some other sense than that indicated above. 57. The question was whether a statute providing for a commission to regulate railroad charges. The true view is indicated by Jtidge Cooley in his Principles of Const. the depriving people of their property without due process of law. Law Rev.

" And so in a court's revision of legislative acts. it will always assume a duly instructed body. 633: " In all such cases the question is one of reasonableness. what is presented to the court be a question as to the constitutionality of an Act alleged to be extpostfacto. p. that virtue. there can be no assumption of ignoranice. reckless. & R. for example. Peck. by the Supreme Court of the United States. in judicially applying such a test as this of what a legislature may reasonably tlhink. And so of the provisions about double jeopardy. 1 Eakin v. or jury trial. Anderson. 131. H. 95 U. thoughtless. the funds are to be raised is so clear and palpable as to be perceptible to any mind at first blush.. or giving evidence against one's self. p." said Mr. then.. Co. S. 66 Law Times Rep. Waite. Ry. intent only on public ends. 149 It must indeed be studiously remembered. C. reasonable. If. . . and competent to manage their own affairs. 2 Fletcher v. in our legislative bodies.. 56 N. in Terry v. unless a palpable error has been committed. in Perrv v. and competent knowledge are always to be attributed to that body."1 "It would be indecent in the extreme. indocile. incompetent. that the people are wise. p. " It is a postulate. as to anything involved in a learned or competent discussion of that subject. attentive. I2 S. Keene. fit to represent a self-governing people. 721 (I892). 514 (I876). virtuous. J. in point of fact. 355 .what such persons m-ay reasonably think or do. J." And again. -but what those other persons. . The reasonable doubt. C. what is the permissible view for them. and we cainnot overrule the decision of that department of the government. or attainider." See Pickerilng Phipps v. The conduct of public affairs must always go forward upon conventions and assumptions of that sort. sense. sagacious. on another question.. and the question is not merely what persons may rationally do who are such as we often see. competent. and we have therefore only to consider whether the time allowed in this Statute [of Limitations] is. Raub. under all the circumstances. however probable. as in its revision of a jury's acts. of which our judges speak is that reasonable doubt which lingers in the nmindof a competent and duly instructed person who has carefully applied his faculties to the question. J.AMERICASNDOCTRINE OF CONSTITUTIONAL LA W. and a valuable opinion by Ladd.'" said Marshall. 6 Cr. " in the theory of our government .. The rationally permissible opinion of which we have been talking is the opinion reasonably allowable to such a person as this. well-instructed.2 " upon a private contract between two individuals to enter into an inquiry respecting the corruption of the sovereign power of a State. Justice Gibson. such as our theory of government assumes to be carrying on our public affairs. Of that the legislature is primarily the judge. persons untauight it may be..

or individual are legal or permissible. . because they are revising the work of another department charged with a duty of its own. no right at all in the matter except to hold the other department within the limit of a reasonable interpretation and exercise of its powers. & Count. but whether legislationz is sustainable or not. . even negatively. 7 App Cas. again. In the class of cases wlhich we have been considering. officer. The doctrine which we are now considering is this. indeed. is the great gravity of affecting a man with crime. thzeultimiiatequestionzis not whiat is the true meaning of the constitution. and for the purpose of all sorts of questions. that in dealing with the legislative action of a co-ordinate department. say that there is but one right and permissible way of construing the constitution. Bank v. And. undertake to legislate. and must Inot. that this sort of question is always a court's question. 741. The reason that they lay it down for themselves in reviewing the civil verdict of a jury is a different one. then. But really it begs the question. Lord Blackburn's opinion in the libel case1 related to the construction of a writing. namely.having themselves no right to undertake that duty. The ground on which courts lay down this test of a reasonable doubt for juries in criminal cases. but it is botlh. 1 Cap. The court must not. what the court adjudges to be its true meaning. The courts are revising the work of a co-ordinate department. even negatively. When a court is interpreting a writing merely to ascertain or apply its true meaning. at first sight. B'ut when the ultimate question is not that. and only one right way. there is but one meaning allowable. because the consequences of setting aside legislation may be so serious. and that it is ultimately for the court to say what the right way is. namely. The reason that the same rule is laid down in regard to revising legislative acts is neither the one of these nor the other alone. that the're is a right way and a wrong way of construing it. to have much force. a court cannot always.150 HARVARD LAW REVIEW.this suggestion appears. . but whether certain acts of another department. If it be said that the case of declaring legislation invalid is different from the others because the ultimate question here is one of the construction of a writing. they must not act unless the case is so very clear. then this is not true. undertake to pass upon the facts in jury cases. Henty. and that it cannot well be admitted that there should be two legal constructions of the same instrument.

the Opinion of Jusstices. that it can prevail.AMERICAN DOCTRIlNE OF CONSTITUTIONAL LA W. It all comes back." " upon the single ground that the Act is not so clearly unconstitutional. 8 Gray. to this. 316. 151 It may be suggested that this is not the way in which the judges in fact put the matter . upon the Legal Tender decisions of the Supreme Court of the United States. -this declaration is really a steady aninouncement that their decisions in support of the constitutionality of legislation do not.3 Many mnoresuch opinions are to be expected. or should it attempt to do if the courts were turning out but a broken reed. But in recognizing that this is very often true. that Marshall." 2 The constant declaration of the judges that the question for them is not one of the mere and simple preponderance of reasons for or against. and was not unconstitutionial. as in the case where a Massachusetts judge concurred in the opinion of his brethren that a legislative Act was " competent for the legislature to pass. 21. but interesting and incisive writer. judges sometimes have to confess the limits of their own power. it disposes of the matter. we must remember that where the court is sustaining an Act. . 8 " It matters little.' seeks to establish the court's own opinion of the constitutionality of the legislation establishing the United States Bank. It may be added that a sufficient explanation is found here of some of the decisions which have alarmed many people in recent years. in I885.g. where they are not giving their own opinion that it is constitutional. in commenting. 1 2 . But it is not always true. to declare it void. its invalidity so free fromnreasonable doubt.not unconstitutional beyond a reasonable doubt. in McCulloch v. is merely this. it is fit that this should be said. The rule under discussion 4 Wheat. clear beyond a reasonable doubt. for. I think. Per Thomas. as to make it the duty of the judicial department. in view of the vast interests involved in the restult. and finds it to be constitutional in its own opinion."' by Brooks Adams. 55 Atlantic Monthly. import their own opinion of the true construction of the constitution. and it is not probable it can ever again act as an effective check upon the poptula: will." The " Conisolidation of the Colonies. . when they hold an Act constitutional." savs a depressed. and that such a declaration is all that the case calls for. e. " for the court has fallen. as of course. while legislatures are often faithless to their trust. p. and that the strict meaning of their words. there are many cases where the judges sustain an Act because they are in doubt about it.. 307. J.. but are merely leaving untouched a determination of the legislature. but of what is very plain and clear. Maryland.

The judges were allowed. In such a work there can be no permanent or fiLting modus vivendi between the different departments unless each is sure of the full co-operation of the others. Law Rev. n. or be unmindful of the hint that is found in the sagacious renmark of an English bishop nearly two centuries ago. Justice Holmes1: "Whoever hath an absolute authority to interpret any written or spoken laws." 2 Bishop Hoadly's Sermoni preached before the King. and not the person who firstwroteor spoke them. They must not step into the shoes of the law-maker. owing to the subject-matter with which it deals. a secondary part.. If our docfinds itself. . March 31. It should be remarked that Bishop Hoadly is speakiing of a situation where the supposed legislator. What really took place in adopting our theory of constitutional law was this: we introduced for the first time into the conduct of government through its great departments a judicial sanction. The ultimate arbiter of what is rational and permissible is indeed always the courts. 1717. has in it an implied recognition that the judicial duty now in question touches the region of political administration. that is a rule -admits very familiar situation in the development of law. it is he who is truly the lawgiver. where he justlv refers to the remark as showing " that gentlemen of the short robe have sometimes grasped fundamental legal principles better than many lawyers. never interposes.152 HARVARD LAW REVIEW. as among these departments. then the judges must apply methods and principles that befit their task. so long as its owIn action conforms to any reasonable and fairly permissible view of its constitutional power. on "The Nature of the Kingdom or Church of Christ. 33. taking a part. yet we may recall what Dicey says of amending the constitution of the . but partial. In simiiple truth. That is not strictly the case in hand. and is qualified by the necessities and proprieties of all intents and purposes. the power to revise the action of other departments and to pronounce it null. in the political conduct of government. This leaves to our courts a great and stately jurisdiction. in trine of constitutional law -which the shape of a narrowly stated substantive principle. so far as litigated cases bring the quiestion before them.not full and complete. while this is a mere judicial function." 2 1 By Professor Gray in 6 Harv. quoted lately from Mr. as we have seen. T717. with a rule of administration enlarging the otherwise too restricted substantive now of a juster and simpler conception." London: James Knapton. after once issuing his enactment. it involves. If that be so. It will only imperil the whole of it if it is sought to give them more. indirectly and in a degree.

" And so Tapley. 4 R. (3) where as representing a government of paramount authority. A federal constitution is capable of change. Jameson. v. p. The case of a court passing tipon the validity of the act (i) of a co-ordinate department is the normal situation. to which the previous observations mainly apply.. they deal with acts of a department which is not co-ordinate. They have never been regarded as binding on the body asking for them. in 58 Me. J. 153 V. I. (18jO): " It is true.-an opinion which seems to me. As regards the second case. (2) where they act as advisers of the other departments. 562-3 (I881): " Inasmuch as any opinion now given can have no effect if the matter should be judicially brought before the court by the proper process. re Senate Bill. and lest. A. p." Walton. let me briefly mention one or two discriminations which are often overlooked. J. 6r5: "cNever regarding the opinions thus formed as conclusive.2 and a doctrine in the State of Colorado. 4th. that the opinions given under a requisition like this have no judicial force. Dubuque. Conv. (2) this. J.. There are at least three situations which should be distinguished: (i) wlhere judges pass upon the validity of the acts of a co-ordinate department. Const. Place. ibid. but. " and Libby. a federal constitution is apt to be unchangeable. in declining to answer. made at a time of great political excitement. Taylor v. I will very briefly express my opinion upon the quiestion submitted. in 72 Me. p. 362. and it may be doubted whether anything short of impending revolution will ever again arouse him to activity. 667. and a valuable article by H. I63. note e. the other judges said nothing on this point. J. p.' A single exceptional and unisupported opinion upon this subject. But a monarch who slumbers for years is like a mnonarchwho does not exist. in some respects 8 ill considered. I2 Allen.' do not United States: " The sovereign of the United States has been roused to serious action but once during the course of ninety years. i885). ed. founded upon considerations peculiar to the constitution of that State. on " The Duty of Judges as Constitutional Advisers. in 24 Am. and cannot bind or control the action of any officer of any department. See Thayer's Memorandum on Advisory Opiniions (Boston." 1 Com. 70 Me. and the opinions thus given have not the quality of judicial authority.. or a different application from the common one. Kent. 573 2 Opinion of Justices. fv 20 . 12 Colo.. unquestionably. in reality. p. concurred. Judges sometimes have occasion to express an opinion upon the constitutionality of a statute. p. I may omit the performance of a constitutional duty. Finally. is not the exercise of the judicial function at all. but open to review upon every proper occasion. Appendix. for all that.. p.AMERICAN DOCTRINE OF CONSTITUTIONAL LA W. 369. in the State of Maine... Green. Law Rev. when the rule which we have been considering has no application.." Contra. 466. It needed the thunder of the Civil War to break his repose. 583 (i88o). I need say no more about that. the giving of advisory opinions. and which are important in order to a clear understanding of the matter.

the scruples. (3) Under the third head come the questions arising out of the existence of our double system. When the question relates to what is admitted not to belong to the national power. As regards such opinions. and in no sense authoritative judgments.are merely advisory. and in MacNaghten's Case.' Under our constitutions such opinions are not generally given. seem to fix also the duty of each of its departments. that such opinions. one of which. 5a . which we have seen emphasized by the courts as regards judicial decisions upon the constitutionality of laws. namely. it is the practice to report these opinions among the regular decisions. of Lords. What is asked for is the judge's own opinion. cautions. . we have a different matter in hand. True. and sometimes cited. as if they held equal rank with true adjudications. pp. and its duty in all questions involving the powers of the general government to maintain that power as against the States in its fulness. that of maintaining this paramount authority in its true and just proportions. to be determined by itself. it involves the allotment of power between the two that well-known class of opinions given by the judges in England when advising the House of Lords. whether the State or national judiciary. is of higher authority than the other. Fundamentally. with two written constitutions. in England. In the six or seven States where the constitutions provide for them. which suggested our own practice. and the rule about a reasonable doubt. Ho. and two governments. . withiin its sphere. then whoever construes a State constitution. . are reported. If a State legislature passes a law which is impeached in the due course of litigation before the national courts. and warnings of which I have been speaking. 49. as being in conflict with the supreme law of the land. The relation to the States of the paramount government as a whole. 154 call for any qualification of the general remark. But when the question is whether State action be or be not conformable to the paramount constitution. given by our judges. have no application. must allow to that legislature the full range of rational construction. those courts may have to ask themselves a question different from that which would be applicable if the enactments were those of a co-ordinate department.where the line is to be drawn.IHARVARD LAW REVIEW. much as the responses of the judges in Queen Caroline's Case. the supreme law of the land. the judiciary is still debating whether a legislature has transgressed its 1 Macqueen's Pract.

for the court). But under the Judiciary Act an appeal does not lie from every decision. it only lies when the State law is sustained below. it is greatly to be desired that it should be more emphasized by our courts. 155 limit. The presumption in favor of a co-ordiniatebranch of the State government. No doubt our doctrine of constitutional law has had a tendency to drive out questions of justice and right. even if an appeal were allowed in all cases. than by ours. The same result is reached by the court. 352. At any rate. to guard it against any inroads from without. but attempting to restate more exactly and truly an admitted one. in Eakinv..l The view which has thus been presented seems to me highly important. 286: A case of simple doubt should be resolved favorably to the State law. these two tribunals. . if it be one. whose duty it is. J.AMERICAN DOCTRINE OF CONSTITUTIONAL LAW. they have felt little responsibility. and the limit is at a different point.. as being parts of one system. p. It has been often remarked that private rights are more respected by the legislatures of some countries which have no written constitution. Compare lb. If what I have said be sound. the 1 Gibson. I2 S. of what the constitution allows. I am not stating a new doctrine. should proceed on the same rule. even in the matter of legality. to allow to that constitution nothing less than its just and true interpretation. Since an appeal lies to the Federal courts. and to fill the mind of legislators with thoughts of mere legality. above all. to the Federal judiciary.. and having fixed this. As to how the State judiciary should treat a question of the conformity of an Act of their own legislature to the paramount constitution. it has been said. if we are wrong. J. it has been plausibly said that they should be governed by the same rule that the Federal courts would apply. Raub. but the departments are not co-ordinate. in its full significance. in all its departments. under existing legislation it seems proper in the State court to do this. here also to adhere to the general rule that judges should follow any permissible view which the co-ordinate legislature has adopted. and. leaving the correction of the error. they say. the necessity of p)reservinga financial system so vital to her welfare. demand this at our hands " (Agnew. 357. The judiciary now speaks as representing a paramount constitution and government.. for the practical reason that this is necessary in order to preserve the right of appeal. And moreover. St. 62 Pa. the relation of her courts to the State. on general principles. I have been speaking of the national judiciary. & R. p. in the Tonnage Tax Cases. It would perhaps be sound on general principles.

Tant qu'elle est saine. courts will correct it. les lois les plus sages. sont impuissantes.If what I have been saying is true.2 7ames B. and that measures which are legal cannot be contrary to morals. en somme. On page 378 he cites one of the best-ktnown writers on constitutional law. . -Le Sys?me Judiciaire de la Grande Bretagne. Legal issues are apt to dwarf and obscure the more substantially important issue of principle anid policy. and must leave open.." See also Ib. . les constitutions les plus parfaites. 1 "A singular result of the importance of constitutional interpretation in the American government . distracting from these latter the attention of the nation as well as the skill of congressional debaters. si le bon sens fait defaut. Thayer. so that responsibility may be brought sharply home where it belongs. If this be true.. 1893). . by le Comte de Franqueville. the safe and permanent road towards reform is that of impressing upon our people a far stronger sense than they have of the great range of possible harm and evil that our system leaves open. It is taken for granted that what the constitution permits it also approves. Am. Judge Hare. si les passions l'emportent. right is too often lost sight of. dans les pays libres de l'ancien et du Nouveau Monde.. is this. Rothschild.". le dernier mot de la science politique. it is of the greatest public importance to put the matter in its true light. cannot be accomplished without making the government petty and incompetent. les nations prosperent malgre les imperfections et les lacunes de leurs institutions. Under no system can the power of courts go far to save a people from ruin. La maxime d'un ancien: quid leges sine mtoribus ? est. 4IO. that the United States legislature has been very largely occupied in purely legal discussions. our chief protection lies elsewhere. The checking and cutting down of legislative power. . . la source et la fin de tout pouvoir. by numerous detailed prohibitions in the constitution.I Bryce. . ist ed. Com. This process has already been carried much too far in some of our States. CAMBRIDGE. and of the clear limits of judicial power.I56 HARzVARD LA W REVIEW. as sayinig that "In the refined and subtle discussion which ensues. 377. or treated as if it were synoniymous with might. to the legislatures. i. 25 (Paris: J. 2 La volonte populaire: tel est.