stitution there would seem to be little doubt, though there are indeed some who still question it.* That it was the possible absorption of undue powers by the legislature which the constitutional fathers expressly feared, there is abundant evidence in the records of their views which have been preserved. The following is but one of many similar quotations that might be made. In the Federalist, Madison writes: "In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger and watched with all the jealousy which a zeal for liberty ought to inspire. But in a representative republic, where the executive magistracy is limited both in the extent and the duration of its power; and where the legislative power is exercised by an assembly which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength, which is 4 See for example American Law Review, XL, 356, article entitled "The Great Usurpation," and North American Review, August 16, 1907, article entitled "Judicial Nullification of Acts of Congress." 5 No. XLVIII. The argument, upon grounds of expediency, for giving the power to the courts is stated by Webster and Kent as follows: Webster says: "It cannot be denied that one great object of written constitutions is to keep the departments of government as distinct as possible; and for this purpose to impose restraints designed to have that effect. And it is equally true, that there is no department on which it is more necessary to impose restraints than the legislative. The tendency of things is almost always to augment the power of that department in its relation to the judiciary. The judiciary is composed of few persons, and those not such as mix habitually in the pursuits and objects which most engage public men. They are not, or never should be, political men. They have often unpleasant duties to perform, and their conduct is often liable to be canvassed and censured, where their reasons for it are not known, or cannot be understood. The legislature holds the public purse. It fixes the compensation of all other departments; it applies, as well as raises, all revenue. It is a numerous body and necessarily carries along with it a great force of public opinion. Its members are public men, in constant contact with one another, and with their constituents. It would seem to be plain enough that, without constitutional provisions which should be fixed and certain, such a department, in case of excitement, would be able to encroach on the judiciary. Therefore is it, that a security of judicial independence becomes necessary." Works, III, 29. Kent declares: "From the mass of powers necessarily vested in the legiclature, and the active and sovereign nature of these powers; from the sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions by all the means which reason prescribes, it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. Its constitutional powers being at once more exclusive and less susceptible of precise limits, it can, with greater facility, mask under complicated and indirect measures, the encroachments that it makes on co-ordinate departments." § 5. Courts Do Not "Nullify" Laws. The doctrine that an unconstitutional law is void is often stated as a deduction from the premise that constitutional law is a superior kind of law to which statute law of inferior rank is obliged to yield. Accurately speaking, however, this is not the case, for the unconstitutional statute is not law at all, whatever its form or however solemnly enacted and promulgated. There are not and cannot be degrecs of legal validity. Any given rule of conduct or definition of a right either is or is not numerous bodies of which the legislature is composed, the popular sympathies which it excites, and its immediate dependence upon the people by means of frequent periodical elections, it follows that the legislative department of the government will have a decided superiority of influence. It is constantly acting upon all the great interests of society, and agitating its hopes and fears. It is liable to be constantly swayed by popular prejudice and passion, and it is difficult to keep it from pressing with injurious weight upon the constitutional rights and privileges of the other departments. An independent judiciary, venerable by its gravity, its dignity and its wisdom, and deliberating with entire serenity and moderation, is peculiarly fitted for the exalted duty of expounding the Constitution, and taxing the validity of statutes by that standard. It is only by the free exercise of this power that courts of justice are enabled to repel assaults, and to protect every part of the government, and every member of the community, from undue and destructive innovations upon their chartered rights. It has accordingly become a settled principle in the legal polity of this country, that it belongs to the judicial power, as a matter of right and duty, to declare every act of the legislature, made in violation of the Constitution, null and void." Commentaries, Lect. XX. law. When therefore we describe any particular measure as an unconstitutional law, and therefore, of course, void, we are in fact, strictly speaking, guilty of a contradiction of terms, for if it is unconstitutional it is not a law at all; or, if it is a law, it cannot be unconstitutional. Thus when any particular so-called law is declared unconstitutional by a competent court of last resort, the measure in question is not "vetoed" or "annulled," but simply declared never to have been law at all, never to have been, in fact, anything more than a futile attempt at legislation on the part of the legislature enacting it. This is a very important point, for did the decision of the court operate as a veto the effect would be simply to hold that the law should cease to be valid from and after the time such decision was rendered, whereas, in fact, the effect is to declare that the law never having had any legal force no legal rights or liabilities can be founded upon it. In Norton v. Shelby Co., Mr. Justice Field says: "An unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection, it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." An exception to this doctrine, and, to the author's mind, an illogical and ill-considered one, is that made by the Supreme Court in Gelpeke v. Dubuque and the cases affirming it. In these cases it has been held that while a decision of the highest court of a State holding void an act of the State because in conflict with the Constitution of that State will be followed by the federal Supreme Court as to all rights of action accruing after the rendition of such decision, it will not be applied to earlier transactions entered into when the law in question had been declared valid by the state courts and these transactions had been entered into in good faith confiding in the decision of the courts upholding the law.9 € 118 U. S. 425; 6 Sup. Ct. Rep. 1121; 30 L. ed. 178. 71 Wall. 175; 17 L. ed. 520. 8 See section 517. There are also some other exceptions, among which is the validity given to acts of de facto officers and de facto corporations whose tenure of office or existence is based upon statutes later held unconstitutional. 9 It may also be proper to observe that acts committed by persons exercising in good faith powers conferred by acts later held unconstitutional are some In declaring unconstitutional, and therefore void, the enactment of a legislative body, it has sometimes been argued that a court defeats the will of the people as whose law-making organ and mouthpiece the legislature acts. In truth, however, what is done is this: The people, acting solemnly and deliberately in their sovereign capacity, declare that certain matters shall be determined in a certain way. These matters, because of their great and fundamental importance, they reduce to definite written form, and declare they shall not be changed except in a particular manner. In addition to this they go on to say, in substance, that so decided is their will, and so maturely formed their judgment, upon these matters, that any act of their own representatives in legislature inconsistent therewith, is not to be taken as expressing their deliberate will. Therefore, when the courts declare void legislative acts inconsistent with constitutional provisions, the judges are giving effect to the real will of the people as they have previously solemnly declared it. Thus, "In exercising this high authority, the judges claim no judicial supremacy; they are only the administrators of the public will. If an act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden by the Constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law." 10 times given a certain validity. This, however, is in accordance with a general principle governing de facto officers and is hardly to be treated as an exception to the doctrine stated in the text. In United States v. Realty Co. (163 U. S. 427; 16 Sup. Ct. Rep. 1120; 41 L. ed. 215) it was held that persons acting in good faith under an unconstitutional act of Congress might have an equitable claim against the United States, for the payment of which an appropriation might be made by Congress. 10 Lindsay v. Commissioners, 2 Ray, 38, 61. CHAPTER II. PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION. § 6. Circumstances Under Which the Courts Will Hold an Act of Congress Void. Because an act of Congress is the declaration of a co-ordinate branch of the National Government, the courts have established for themselves certain more or less definite rules governing the conditions under which they will undertake to pass upon the constitutionality of federal statutes. These rules are self-established, under a sense of propriety and expediency, and are not created by any constitutional necessity.1 1. Courts of first instance will not hold an act unconstitutional except in clear cases, but will leave this to the final judgment of the higher courts. Inferior courts hold themselves bound by the prior decisions of superior courts as to the validity of an act, even though new reasons, pro or contra, are raised. The presumption is that all possible arguments were in fact considered by the superior courts. 2. The Supreme Court has held that, ordinarily, it will not hold a law void except by a majority of the full bench. Thus, in 1825, the Court of Appeals of Kentucky refused to follow a decision of the Supreme Court of the United States, which had held a law of Kentucky void as contrary to the federal Constitution, stating as a reason that the decision had not been concurred in by a majority of the entire court.2 After this occurrence the Supreme Court adopted the rule as stated above. In New York v. Miln,3 decided in 1834, Marshall said: "The practice of this court is not (except in cases of absolute necessity) to deliver any judgment in cases where constitutional questions are involved, unless four justices [the court then consisted of seven] 1 Cf. the enumeration of these rules by Cooley in his Const. Lim., Chap. VII. 2 Bodley v. Gaither, 3 Monroe, 57. 38 Pet. 120; 8 L. ed. 888. |