without destroying or impairing their efficiency to attain the results evidently intended by the legislation that enacted it. Even when thus separable, however, the court will not hold the remainder of the law valid if there is doubt whether, the realization of the whole of its will being rendered impossible, the legislature would have desired the execution of a part only. Thus in the case of Howard v. Illinois C. R. Co.,10 cited in the foregoing section, the court having held that the act by its terms related to intrastate as well as interstate commerce, declined to hold the act valid even as to employees engaged in interstate commerce. The court say: "As the act before us, by its terms, relates to every common carrier engaged in interstate commerce, and to any of the employees of every such carrier, thereby regulating every relation of a carrier engaged in interstate commerce with its servants and of such servants among themselves, we are unable to say that the statute would have been enacted had its provisions been restricted to the limited relations of that character which it was within the power of Congress to regulate." 11

§ 7. Legislative Motives.

With the motives of the legislators the courts cannot concern themselves. "The judiciary can only inquire whether the means devised in the execution of a power granted are forbidden by the Constitution. It cannot go beyond that inquiry without intrenching upon the domain of another department of government. That it may not do with safety to our institutions." 12

10 207 U. S. 463; 28 Sup. Ct. Rep. 141; 52 L. ed. 297.

11 Citing Trade Mark Cases, 100 U. S. 82; 25 L. ed. 550; Cooley, Const. Lim. 178.

12 Interstate Commerce Commission v. Brimson, 154 U. S. 447; 14 Sup. Ct. Rep. 1125; 38 L. ed. 1047.

"So long as Congress keeps within the limits of its authority as defined by the Constitution, infringing no rights recognized or secured by that instrument, its regulations of interstate and international commerce, whether founded in wisdom or not, must be submitted to by all. . . . To depart from [this rule of construction] because of the circumstances of special cases, or because the rule, in its operation, may possibly affect the interests of business is to endanger the safety and integrity of our institutions and make the Constitution mean not what it says but what interested parties wish it to mean at a particular time and under particular circumstances.

In Ex parte McCardle13 the court declined to take appellate jurisdiction because of the enactment by Congress of a law which it was wel! known had been passed for the express purpose of preventing the court from questioning the constitutionality of certain measures which the Federal Government had taken for the "Reconstruction" of the Southern States after the termination of the Civil War. "We are not at liberty," said the court, "to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words." 14

§ 8. Expediency and Reasonableness of Legislation not Subject to Judicial Determination.

The power of Congress to legislate being conceded, the wisdom or expediency of the manner in which the power is exercised is beyond judicial criticism or control.15

If the statute is beyond the constitutional power of Congress, the court would err in the performance of a solemn duty if it did not so declare. But if nothing more can be said than that Congress erred . . . the remedy for the error and the attendant mischief is the selection of new Senators and Representatives, who, by legislation, will make such changes in existing statutes, or adopt such new statutes, as may be demanded by their constituents and be consistent with law." Northern Securities Co. v. United States (193 U. S. 197; 24 Sup. Ct. Rep. 436; 48 L. ed. 679).

137 Wall. 506; 19 L. ed. 264.

14 In McCray v. United States (195 U. S. 27; 24 Sup. Ct. Rep. 769; 49 L. ed. 78) the authorities upon this point are reviewed, the court saying: "The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted. . . . On the contrary, the doctrine of a number of cases is inconsistent with its existence."

15 In Treat v. White (181 U. S. 264; 21 Sup. Ct. Rep. 611; 45 L. ed. 853) with reference to a stamp duty levied by Congress, the court say: "The power of Congress in this direction is unlimited. It does not come within the province of this court to consider why agreements to sell shall be subject to the stamp duty, and agreements to buy not. It is enough that Congress, in this legislation, has imposed a stamp duty upon this one, and not upon the other." In Patton v. Brady (184 U. S. 608; 22 Sup. Ct. Rep. 493; 46 L. ed. 713) the court say: "It is no part of the function of a court to inquire into the reasonableness of the excise, either as regards the amount or the property upon which it is imposed."

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

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

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

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

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

In Ogden v. Saunders18 Justice Washington says: "It is but a decent respect due to the .. legislative body, by which any law is passed, to presume in favor of its validity, until the

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

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

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

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

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

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

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

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

Judge Baldwin, in his work on The American Judiciary (p. 103), asserts that, inasmuch as the judgment of the Supreme Court holding unconstitutional an act of Congress is often, and indeed usually, rendered by a divided court, the principle that a congressional statute will not be held void so long as there is a reasonable doubt as to its invalidity, is not applied. "The majority must concede," he says, "that there is a reasonable doubt whether the statute may not be consistent with the Constitution, since some of their associates must have such a doubt, or go further and hold that there is no inconsistency between the two documents, the statute and the Constitution." This argu

ment is not convincing. Admitting that either one or the other of the two opinions must be conceded to the dissenting justices, it does not follow that the doctrine of reasonable doubt is shown to be repudiated. The question which the Supreme Court, as a court, has to decide is as to the existence of this reasonable doubt. There may of course be a difference of opinion as to this, but it is still this fact which the court seeks to determine and which controls its decision. It is no more proper to say that the principle is repudiated when the court is not unanimous, than to hold that in passing by a divided court upon a question of contributory negligence, the principle of reasonable doubt is not applied.

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