to those granted to the general government, whenever any question arises as to the exercise of any power by any of these functionaries under the state or federal government, it is of necessity that such functionaries must, in the first instance, decide upon the constitutionality of the exercise of such power. 1 It may arise in the course of the discharge of the functions of any one, or of all, of the great departments of government, the executive, the legislative, and the judicial. The officers of each of these departments are equally bound by their oaths of office to support the Constitution of the United States, and are therefore conscientiously bound to abstain from all acts which are inconsistent with it. Whenever, therefore, they are required to act in a case not hitherto settled by any proper authority, these functionaries must, in the first instance, decide each for himself, whether, consistently with the Constitution, the act can be done. If, for instance, the President is required to do any act, he is not only authorized but required to decide for himself, whether, consistently with his constitutional duties, he can do the act.2 So, 1 See the Federalist, No. 33. 2 Mr. Jefferson carries his doctrine much further, and holds that each department of government has an exclusive right, independent of the judiciary, to decide for itself as to the true construction of the Constitution. "My construction," says he, "is very different from that you quote. It is, that each department of the government is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the laws submitted to its action, and especially when it is to act ultimately and without appeal." And he proceeds to give examples in which he disregarded, when President, the decisions of the judiciary, and refers to the alien and sedition laws, and the case of Marbury v. Madison (1 Cranch, 137). 4 Jefferson's Correspondence, 316, 317. See also 4 Jefferson's Corresp. 27; Id. 75; Id. 372, 374. (a) (a) In Attorney-General v. Barstow, 4 Wis. 587, the view of Jefferson was ts were that State, was a canvass for re-election. Certain spurious election returns were, nevertheless, placed on file with the State Board of Canvassers, which, together with the genuine returns, gave him an apparent majority over the oppos ing candidate. Thereupon he declined to surrender the office at the end of the term, and on quo warranto against him in the Supreme Court denied the author pressed still further. Barstow, the govern defeated by the people ity of that court to consider and decide upon the title to the office. His position, as stated by his counsel, was as follows: "1. The three departments of the State government, the legislative, the executive, and judicial, are equal, co-ordinate, and independent of each other; and that each department must be and is the ultimate judge of the election and qualification of its own member or members, subject only to impeachment and appeal to the people. "2. That this court must take judicial notice of who is governor of the State, if a proposition be before Congress, every member of the legislative body is bound to examine and decide for himself whether the bill or resolution is within the constitutional reach of the legislative powers confided to Congress. And in many cases the decisions of the executive and legislative departments, thus made, become final and conclusive, being from their very nature and character incapable of revision. Thus, in measures exclusively of a political, legislative, or executive character, it is plain that as the supreme authority, as to these questions, belongs to the legislative and executive departments, they cannot be re-examined elsewhere. Thus, Congress having the power to declare war, to levy taxes, to appropriate money, to regulate intercourse and commerce with foreign nations, their mode of executing these powers can never become the subject of re-examination in any other tribunal. So the power to make treaties being confided to the President and Senate, when a treaty is properly ratified it becomes the law of the land, and no other tribunal can gainsay its stipulations. Yet cases may readily be imagined in which a tax may be laid or a treaty made, upon motives and grounds wholly beside the intention of the Constitution. The remedy, however, in such cases is solely by an appeal to the people at the elections, or by the salutary power of amendment provided by the Constitution itself.2 § 375. But where the question is of a different nature, and capable of judicial inquiry and decision, there it admits of a very 1 See 4 Elliot's Debates, 315 to 320. 2 The Federalist, No. 44. Mr. Madison, in the Virginia Report of January, 1800, has gone into a consideration of this point, and very properly suggested that there may be infractions of the Constitution not within the reach of the judicial power, or capable of remedial redress through the instrumentality of courts of law. But we cannot agree with him, that in such cases each State may take the construction of the Constitution into its own hands, and decide for itself in the last resort; much less that in a case of judicial cognizance the decision is not binding on the States. See Report, pp. 6, 7, 8, 9. when he was inaugurated, the genuineness of his signature, &c.; and therefore cannot hear argument or evidence upon the subject. That who is rightfully entitled to the office of governor can in no case become a judicial question, and "3. That the Constitution provides no means for ousting a successful usurper of either of the three departments of the government; that that power rests with the people, to be exercised by them when they think the exigency requires it." The startling doctrine so broadly stated received so little countenance from the court to which it was addressed as scarcely to be treated with the courtesy of a discussion. different consideration. The decision then made, whether in favor or against the constitutionality of the act, by the State or by the national authority, by the legislature or by the executive, being capable, in its own nature, of being brought to the test of the Constitution, is subject to judicial revision. It is in such cases, as we conceive, that there is a final and common arbiter provided by the Constitution itself, to whose decisions all others are subordinate; and that arbiter is the supreme judicial authority of the courts of the Union.1 (a) 1 Dane's App. §§ 44, 45, pp. 52 to 59. It affords me very sincere gratification to quote the following passage from the learned Commentaries of Mr. Chancellor Kent, than whom very few judges in our country are more profoundly versed in constitutional law. After enumerating the judicial powers in the Constitution, he proceeds to observe: "The propriety and fitness of these judicial powers seem to result, as a necessary consequence, from the union of these States in one national government, and they may be considered as requisite to its existence. The judicial power in every government must be coextensive with the power of legislation. Were there no power to interpret, pronounce, and execute the law, the government would either perish through its own imbecility, as was the case with the old confederation, or other powers must be assumed by the legislative body to the destruction of liberty." 1 Kent's Comm. (2d ed. p. 296), Lect. 14, 277. (a) The author speaks here of a decision for or against the constitutionality of a particular act. Upon such a question, as he truly remarks, the final arbiter is "the supreme judicial authority of the courts of the Union." The final decision of that authority is binding upon all the people, all the States, and all the departments of the general government. But as between these several departments, there are and must be bounds to this conclusiveness of adjudication. The question that is judicial to-day may be political to-morrow. Judicial questions the courts decide; political are addressed to the wisdom of the legislature. To-day the question may be whether an existing act is constitutional. That is purely judicial. To-morrow the act may have expired, and the question may be whether it should be re-enacted. That question is political. Suppose there be no other objection to its re-enactment than doubts of its constitutionality, are legislators bound to defer to the judgment of the court in the exercise of the legislative function, and therefore to re-enact the law, though in their own view it may be a clear and dangerous infraction of the Constitution? This is a question quite aside from that here discussed by our author. As illustrating this question a noted instance may be referred to. Previous to 1832 the Supreme Court of the United States had in a deliberate decision declared that Congress had the power to charter a Bank of the United States. But in 1832 the question of re-charter arising, and a bill having passed the two houses for the purpose, President Jackson vetoed it. In the course of his veto message he says: "It is maintained by the advocates of the bank, that its constitutionality, in all its features, ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I cannot assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding ques § 376. Let us examine the grounds on which this doctrine is maintained. The Constitution declares (Art. 6), that "This tions of constitutional power, except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress, in 1791, decided in favor of a bank; another, in 1811, decided against it. One Congress, in 1815, decided against a bank; another, in 1816, decided in its favor. Prior to the present Congress, therefore, the precedents drawn from that source were equal. If we resort to the States, the expressions of legislative, executive, and judicial opinions against the bank have been probably to those in its favor as four to one. There is nothing in precedent, therefore, which, if its authority were admitted, ought to weigh in favor of the act before me. "If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the co-ordinate authorities of this government. The Congress, the executive, and the court must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges; and, on that point, the President is independent of both. "The authority of the Supreme Court must not, therefore be permitted to control the Congress or the executive, when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve." Again, during the administration of President Buchanan the Supreme Court, in a case before it involving a question of personal liberty, denied the power of Congress to exclude slavery from the Territories. This opinion became of vital interest and importance in the Presidential election which followed, and President Lincoln thus referred to it in his inaugural: "I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding, in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the gov ernment. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation be tween parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. "Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes. One section of our country believes slavery is right and ought to be Constitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties, &c., shall be the supreme law of the land," It also declares (Art. 3), that "the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, and which shall be made, under their authority." It further declares (Art. 3), that the judicial power of the United States "shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish." Here, then, we have express and determinate provisions upon the very subject. Nothing is imperfect, and nothing is left to implication. The Constitution is the supreme law; the judicial power extends to all cases arising in law and equity under it; and the courts of the United States are, and, in the last resort, the Supreme Court of the United States is, to be vested with this judicial power. No man can doubt or deny that the power to construe the Constitution is a judicial power.1 The 1 4 Dane's Abridg. ch. 187, art. 20, § 15, p. 590; Dane's App. § 42, pp. 49, 50; § 44, pp. 52, 53; 1 Wilson's Lectures, 461, 462, 463. extended, while the other believes it is wrong and ought not to be extended. This is the only substantial dispute. The fugitive-slave clause of the Constitution, and the law for the suppression of the foreign slave-trade, are each as well enforced, perhaps, as any law can ever be in a community where the moral sense of the people imperfectly supports the law itself. The great body of the people abide by the dry legal obligation in both cases, and a few break over in each. This I think cannot be perfectly cured; and it would be worse in both cases, after the separation of the sections than before. The foreign slave-trade, now imperfectly suppressed, would be ultimately revived without restriction in one section; while fugitive slaves, now only partially surrendered, would not be surrendered at all, by the other." Such were the views of Presidents Jackson and Lincoln. The first were strongly condemned by able statesmen, under the lead of Mr. Clay and Mr. Web ster, and as earnestly defended. The second have also been subjected to sharp criticism, notably at the hands of Professor Samuel Tyler in his Memoir of Chief Justice Taney. We content ourselves here with a single remark: The boundary between legislative and judicial power is in general clear. To declare what the law is, is the province of the latter; to declare what it shall be, within the limits of the Constitution, pertains to the former. And when the question is, what are those limits, it is the duty of every party called upon to exercise an independent authority, carefully and conscientiously, on a full consideration of all the light he can obtain, to satisfy himself that he does not overstep the bounds which the people, in delegating their authority to him, have set to his power. That is a safe, proper, and just rule for every citizen, every officer, and every tribunal to apply wherever there is a discretion to exercise. C. |