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A Constitutional History of the United States
Chapter XXIII - John Marshall, Chief Justice. The Early History of the Supreme Court. Marbury v. Madison
by McLaughlin, Andrew C.

Before Adams left office he appointed John Marshall Chief Justice of the United States. This office Marshall held for more than three decades (1801-1835), and his influence in shaping the foundations of American constitutional law can hardly be overestimated. Presidents were elected and retired from office; parties were broken up and reconstituted; changes in social and economic conditions were wrought by time; the population of the land greatly increased in numbers; the boundaries of the republic were extended; new states were formed; old ideas and mental attitudes of the eighteenth century passed away; but Marshall in the quiet of the court-room continued to give forth decisions from the bench and to win for himself fame as one of the great judges of all time. He had a unique opportunity. He was called upon to construe the fundamental law of a nation, to lay down principles which were to be of supreme consequence in securing national stability and national development. No other justice in the course of the past ages had such an opportunity and such responsibilities. The Constitution which he was called upon to interpret and apply was the Constitution, moreover, of a federal, not of a unitary or centralized state; in consequence, judicial problems were novel, and little help could be gained from precedent, especially in deciding those controveries which were most vital and significant. If not always free from emotional strain, he was peculiarly judicial in his outward attitude; he was decisive without being overbearing. His literary style, especially in his more important opinions in the years when he had reached the summit of his intellectual power, was clear, simple, and eloquent, if the occasion made eloquence appropriate. The layman as well as the learned practitioner can read his words and grasp their meaning.[1]

His early training and preparation for his task were not very thorough; he had had none of the prolonged drill to which the modern student is subjected; but his experiences in the army and in political life had given him an insight into practical problems and had furnished him with stern convictions. The years spent in the Revolutionary army, where he had suffered the slings and arrows of outrageous fortune, had left their deep impressions; and if we seek the basic depths of his devoted nationalism, we can doubtless find them in the privations of Valley Forge; these privations, he well knew, were the product of incompetent government, an imperfect union of the states, and the absence of national patriotism. In his greatest and most powerful opinions, as we read them to-day, he appears to us to be speaking not in the terms of technical law but as one of Washington's soldiers who had suffered that the nation might live. Had he been more of a technical lawyer, thoroughly steeped in the history and entangled in the intricacies of the law, he might not have been so great a jurist; for his duties called for the talent and the insight of a statesman capable of looking beyond the confines of legal learning and outward onto the life of a vigorous people entering upon the task of occupying a continent and soon to be confronted with new and imperious problems.[2]

There appears to be a tendency among modern writers to attribute to Marshall the creation of the elementary principles of constitutional construction. This is true of both those who extol and those who criticize or lament his work, especially his great decisions which expounded the principles of nationalism. But as a matter of plain fact, his predecessors in the Court, when passing on questions which involved the general nature of the Constitution and the structure of the union, viewed the Constitution in much the same way as Marshall did. From the very beginning to the present there has been no variation from the main line of construction which Marshall in successive cases drew with a firm and strong hand; the decisions made by the Court in the first decade of the Constitution's life furnished solid foundation for later constructions embodying legal nationalism.

The most important of the early decisions, that were rendered before Marshall came to the bench, was Chisholm v. Georgia.[3] The question at issue was whether one of the states of the union was suable by a citizen of another state. As the Constitution then stood, the judicial power of the United States extended to controveries "between a State and citizens of another State", and therefore at first sight the question appeared easily answerable in the affirmative. And still, if the states were supposed to retain even partial sovereignty, their suability presented difficulties.[4] Moreover, the prospect of a state's being brought before the Court and ordered to pay its debts was not alluring. The dignity of the state would be affronted; and its treasure, if it had any, diminished. The Court discussed the question at great length and decided that a state could be sued.

In giving their opinions the justices considered not only the clause directly involved but also the nature of the union. Justice Iredell dissented, holding that in the absence of explicit legislation by Congress a state could not be sued, and said that his "present opinion" was against any construction of the Constitution which would "admit, under any circumstances, a compulsive suit against a State for the recovery of money." [5] He declared that every state "in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign, as the United States are in respect to the powers surrendered." [6] This was the doctrine of divided sovereignty which appeared in other opinions as the doctrine of the Court. Justice Wilson construed the Constitution in terms of decided nationalism: "As a Judge of this Court, I know, and can decide upon the knowledge, that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the 'People of the United States,' did not surrender the Supreme or sovereign Power to that State; but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is NOT a sovereign State." Chief Justice Jay said, "Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects, in a certain manner." His general position was that "the sovereignty of the nation is the people of the nation, and the residuary sovereignty of each State, in the people of each State...." The people of the United States, he declared, "acting as sovereigns of the whole country", established "a Constitution by which it was their will, that the State Governments should be bound, and to which the State Constitutions should be made to conform."

Georgia indulged in loud lamentation; its house of representatives passed a bill "declaratory of certain parts of the retained sovereignty of the state" and subjecting to death "without benefit of clergy" any officer or other person levying on the property of the state by virtue of the authority of any court. It is impressive, this tender sense of sovereign self-sufficiency,[7] in a state of about 80,000 inhabitants including slaves. But Georgia was not alone. Suits had been begun against Maryland, New York, and Massachusetts;[8] and those states, as well as others, were eager to banish the danger of being compelled to pay their debts. An amendment was drawn up by Congress and proposed to the states for their acceptance in 1794, but not until January 8, 1798, was announcement made of complete ratification:[9] "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State."

The amendment did not by these words explicitly exclude a suit brought against a state by one of its own citizens. The question arose nearly a century after the decision in the Chisholm case. In the later case,[10] the Supreme Court solemnly declared Iredell's position to be right, and that of the other judges wrong: "The suability of a State without its consent was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted. It was fully shown by an exhaustive examination of the old law by Mr. Justice Iredell in his opinion in Chisholm v. Georgia; and it has been conceded in every case since, where the question has, in any way, been presented...." [11]

In the case of Calder v. Bull[12] the term "ex post facto" was interpreted as applying only to criminal laws. The Court also indicated what provisions in an act would be considered ex post facto in character. In addition, the announcement was clearly made that the state legislatures retain all powers delegated to them by the state constitutions which are not taken away by the federal Constitution, and that the federal Court had no jurisdiction to determine that any law of a state contrary to the constitution of such state is void. Of special interest is one statement of Justice Chase: "An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority." [13] Justice Iredell, on the other hand, declared that, while an act violating constitutional provisions is void, the Court cannot pronounce it void merely because in the opinion of the judiciary it is contrary to the principles of natural justice.[14] In this matter Iredell's opinion coincides with principles later followed by the courts;[15] but the due process of law clause in the fifth and fourteenth amendments of the federal Constitution, and like provisions in state constitutions, as judicially construed in later years, make the distinction not very important, if there be any distinction at all.

An important decision was rendered concerning the binding effect of the treaty of peace and especially of the provision which declared that "creditors on either side shall meet with no lawful impediment to the recovery ... of all bona fide debts heretofore contracted." The Court held that the treaty nullified the sequestering act of Virginia which was passed during the Revolution, and that, as the Constitution declared that all treaties "made, or which shall be made, under the authority of the United States, shall be the supreme law of the land", the treaty was binding upon the states and must be recognized and applied by the judiciary. "A treaty", said Justice Chase, "cannot be the supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way." [16] The nationalistic interpretation of the Constitution stands forth conspicuously in this opinion.

In this same year (1796) the Court, passing upon the question whether a tax on carriages was or was not a direct tax as the term appears in the Constitution,[17] declared such a tax could be levied without apportionment among the states. Members of the Court expressed the opinion that only two taxes could be classified as direct — a capitation tax and a tax on land. But this opinion, though at times referred to in later cases, did not finally settle the question concerning the actual limits of direct taxation. A century afterwards the Court declared unconstitutional an act levying taxes on incomes.[18] The nature of that decision will be discussed in later pages of this work.

Even while the discussions which ended in the repeal of the Judiciary Act of 1801 were going on, a very important case came before the Supreme Court. William Marbury, who had been appointed by Adams to be a justice of the peace in the District of Columbia, had not received his commission. Marshall, who had acted as Secretary of State until the end of Adams's term, had neglected, because of the hurry of the later days, to attend to the transmission of the commission, and Marbury sought the aid of the Court. Motion was made in the December term of 1801 for a rule requiring the Secretary of State, Madison, to show cause why a mandamus should not issue directing him to deliver the commission. The rule was issued, but Madison ignored it. On motion for a mandamus, Marshall gave an opinion and the Court made a decision in which for the first time a congressional enactment was declared by the Supreme Court to be unconstitutional and of no effect (1803).[19]

The Chief Justice first passed upon the question of Marbury's right to receive the commission, and then, having decided in favor of that right, proceeded to declare invalid a portion of the Judiciary Act of 1789 which granted to the Court the power to issue a mandamus; he thereupon dismissed the application for the mandamus because the Court had no constitutional authority to issue it, and had, indeed, no jurisdiction of a case of this kind. It thus appears that the Court announced the duty of the administration and the rights of Marbury in a case which constitutionally it had no authority to entertain. This method of procedure appears to-day most extraordinary.

Can it be reasonably said that a court can lay down an authoritative decision concerning the merits of a controversy over which it has no jurisdiction? And if the Court in this instance had no jurisdiction, why was it not proper to make that declaration at once and without further ado, and without announcing Marbury's right to his commission? Certainly there is no obligation upon a court to decide whether rights have been violated before it considers its own capacity. In this case, according to Marshall's own theories, the want of jurisdiction was plain on the very face of the pleadings.[20]

The ire of the Republicans had already been aroused by what they considered the gross impropriety of ordering the Secretary of State to show cause; they resented the assumption of power in a court to call a high executive officer before it; they were not in a mood to view temperately the sight of a court, not only declaring an act void, but, before doing so, casting opprobrium upon high executive officers — members and leaders of their own party. Had Marshall had the temerity — perhaps it is fortunate that the opportunity did not arise — to declare the repeal of the Judiciary Act of 1801 unconstitutional, the result might have been disastrous to judicial independence.

What Marshall succeeded in doing was (1) to condemn his political opponents, (2) to exhibit the power of the Court to declare legislative acts void, and (3) to refuse to issue the mandamus; he thus avoided a contest with the President in which he would have been inevitably worsted, because Jefferson would have paid no attention either to him or to his writ. Steps were soon to be taken for testing by impeachment the sanctity of judicial tenure and the immunity of partisan justices; the impeachments which will be considered on later pages must be borne in mind, if we wish to appreciate how critical were the problems and how sensitive the temper of the time. There is no evidence that the Marbury case was trumped up for the purpose of giving Marshall the opportunity to declare an act void, but we can well assume his pleasure in discovering that he had the chance to do so and could exercise the power without bringing on a perilous dispute. We must now turn to the more important part of Marshall's opinion, a declaration that a certain portion of the thirteenth section of the Judiciary Act of 1789 was void. That section assigned to the Supreme Court the power to issue "writs of mandamus ... in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." [21] The Constitution says that the Supreme Court shall have original jurisdiction in two classes of cases: those affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party. In all the other cases to which the federal judicial power extends, the Supreme Court is given appellate jurisdiction. The Marbury case, instituted as an original proceeding in the Supreme Court, was plainly not within the original jurisdiction of the Court.

But there was, nevertheless, no need of declaring the provision of the Judiciary Act void. If we read the whole section of the act, a few words of which are quoted in the preceding paragraph, we find no distinct and obvious intention to grant to the Supreme Court the right to issue writs of mandamus, except where it had jurisdiction of the case — that is to say, when the Court was exercising its appellate jurisdiction or its original jurisdiction under the terms and restrictions of the Constitution. The Chief Justice could have properly said that, though the words of the act might be construed as an attempt to grant unconstitutional authority to the Court, they were quite capable of another construction; and this construction should be placed upon them — that is to say, such a construction as would signify the right to issue a writ of mandamus "in cases warranted by the principles and usages of law," and in connection with controversies over which the Court, by the Constitution, had jurisdiction.[22]

Before further discussion of the principle involved in this famous decision, and before looking for its historical basis, it is well to disabuse our minds of the notion, if the notion be there, that it is the peculiar function of the Supreme Court to pronounce legislative acts void; that Court stands in no peculiar relationship to Congress and is not charged with the special and exclusive duty of upholding the Constitution which is law. It is the duty of any and every court to announce the law and to apply the law in distributing justice to litigants. No matter how lowly a court may be, such is its duty; that is its ordinary and daily job; and in strict theory it proceeds no differently, when deciding whether a legislative act is law or not law, from the way it proceeds when it passes on any other legal problem. Naturally and inevitably an inferior court will hesitate to pronounce a legislative act void; but in theory it has the right and the duty, for the Constitution is the law. We have recently seen a judge of an inferior federal court practically declare an amendment to the Constitution void; and though the Supreme Court, passing upon the question when the case was carried up on appeal, overruled the decision of the lower court, it did not even remotely suggest that the judge was guilty of presumption.[23] Furthermore, we must remember, this judicial power has been used for a hundred and fifty years by state courts; it has been used hundreds of times when those courts have been called upon to consider the constitutionality of state statutes and to decide whether they were or were not contrary to the state constitution or to the Constitution of the United States.[24] The Judiciary Act of 1789, as we have seen, plainly took for granted the right and the possibility of a state court's declaring an act of Congress void; and provision was therefore made for a review in the Supreme Court of the United States to determine whether the decision of the state court should stand.

In giving the famous opinion, Marshall, referring to the distinction between governments which are limited and those which are unlimited, said the distinction was abolished if the limits did not confine the persons on whom they were imposed, and if acts prohibited and acts allowed were of equal obligation. "The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.... Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void." He declared this theory to be essentially attached to a written constitution. He also declared, "It is emphatically the province and duty of the judicial department to say what the law is.... If two laws conflict with each other, the courts must decide on the operation of each." This argument was buttressed by the statement that, inasmuch as the judicial power of the United States extends to all cases arising under the Constitution, the courts must examine the Constitution: "In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?" Now, the critical question was not whether the Constitution was or was not binding. The question was whether Congress, though acknowledging the obligation to observe constitutional limitations of its power, had the right to decide what the limits were.[25] As a basis for the power of a court to disagree with the legislature and declare an act void, it is not enough to point to a written Constitution. We now know that a country may have a written constitution and the courts may nevertheless have no such power. A court, however, is not without justification in giving weight to historical forces, principles which may have been begotten, and fundamental theories upon which constitutions and laws must be supposed to rest. In fact, this particular judicial power rests so plainly on purely historical forces, rather than on any piece of formal logical argument from a document, that anything less than a discussion of historical influences leaves one in doubt concerning the Court's authority. We can recognize the basic principle of the decision only if we know the developments of American thought and of American constitutional principles during forty years and more before Marbury asked for the mandamus. Even should we find in state and federal constitutions the explicit announcement of such extraordinary judicial power (and there is no such announcement), we would be led to inquire into the origin of the principle and to examine the nature of the forces that brought such power into existence.

Although the Marbury case was the first in which the Supreme Court declared a congressional act void, there had been various expressions of opinion and dicta by federal justices and some important decisions which need to be taken into consideration as a preparation for Marshall's decision. This examination will lead us over ground already traversed and give us opportunity to review facts and theories already presented. If we begin with the date of Marshall's opinion and work our way backward, seeking to find the origin of the principle on which he acted, we shall find ourselves, even in a hasty and cursory search, studying not only the immediate antecedents of the Marbury case but reaching farther back and looking once more at the doctrines and philosophy of the American Revolution. The doctrine of what is now called "judicial review" is the last word, logically and historically speaking, in the attempt of a free people to establish and maintain a non-autocratic government. It is the culmination of the essentials of Revolutionary thinking and, indeed, of the thinking of those who a hundred years and more before the Revolution called for a government of laws and not of men.

In Calder v. Bull, the statements of Justice Chase and Justice Iredell concerning the power of the Court are noteworthy.[26] Two years earlier, in the case of Hylton v. the United States,[27] a federal act was attacked as unconstitutional, and, though the Court did not so decide, the suit was brought on the supposition that the Court had the power to declare the act invalid. In Van Home's Lessee v. Dorrance, Justice Paterson said: "... if a legislative act oppugns a constitutional principle, the former must give way, and be rejected on the score of repugnance.... It is an important principle, which, in the discussion of questions of the present kind, ought never to be lost sight of, that the Judiciary in this country is not a subordinate, but co-ordinate, branch of the government." [28] This latter statement is especially to be noticed, because, if we should examine carefully all of the early decisions, both state and national, we would find frequent emphasis on the coordinate authority of departments and the independence of the judiciary; a court had power to review and reject an act, not because it was superior to the legislature, not because the court was set up as a body of censors, but because it was entitled to its own independent judgment concerning the meaning of the Constitution and the extent of legislative competence. In the so-called "First Hayburn Case", it appears that certain federal justices in a circuit court declared void a portion of an act requiring judges to sit as pension commissioners.[29 ] , If we look beyond judicial dicta and decisions, we find similar announcements of the principle. It was by no means novel in 1803. In replies to the Virginia and Kentucky resolutions, several states spoke of the national judiciary as the final interpreter of the Constitution. In 1791 and 1792, James Wilson delivered a series of lectures to the students of the University of Pennsylvania in which he fully developed the doctrine of the Court's independent right to construe the Constitution, and, if necessary, to reject a legislative act. Time and again this subject was touched on in Congress in the first decade after the establishment of the government, and with one exception the speaker took for granted the authority of the Court to ignore unconstitutional legislation.[30] Hamilton's discussion of judicial authority in The Federalist is extensive and explicit; he took issue with those who had fallen into "perplexity respecting the right of the courts to pronounce legislative acts void, because contrary to the constitution ... from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power." [31] He referred with approval to the integrity of the state judiciary — evidently having in mind instances in which state judges had declared acts void — and said, "they must have commanded the esteem and applause of all the virtuous and disinterested." In the state conventions which ratified the Constitution this power of the courts was referred to on several occasions; their right to declare acts void was held forth as a safeguard against improper extension of the legislative power.[32]

If we examine the decisions of state courts, passing upon the construction or the validity of state acts, we find a number of instances in which the principle we are here considering was applied or announced. Again we must remind ourselves that the right of the judiciary to independent judgment concerning legislative competence is not confined to federal courts or to judges of any particular description when the question of the constitutionality of legislation arises. The early exercise of this power by state courts to declare such state acts void as they believed to be in conflict with the principles of the state constitutions is especially impressive because no constitution contained the specific statement that it was law.[33] Pronouncements of the principle which we are considering were made both before and after the federal Constitution was adopted.[34]

As already said, the Constitution contains no explicit grant of power to declare acts void, and the debates in the Convention do not banish all doubt — if anyone wishes or is anxious to doubt — concerning the intention of the framers or their assumption that this power, not explicitly granted, would nevertheless be exercised. A careful examination of the debates will, however, probably convince the skeptic that men of the Convention made that assumption. Some delegates, at one stage of the Convention's work, disapproved of the exercise of such power; but the general trend of the discussion appears to indicate the general assumption that the power would be exercised in cases over which the courts had jurisdiction.[35]

Special attention should be paid to the words of the Constitution which declare that the Constitution is law. The fact that a constitution, like any other law, is to be interpreted and applied in courts is the salient and cardinal idea. If anyone argues that the quality of the Constitution as law does not necessarily imply the right to judge of the constitutionality of a congressional act, when Congress has exercised its own power to judge, he must nevertheless see that, if the Constitution were not law, the courts could not exercise the power we are discussing; [36] upon the state courts was placed the explicit obligation to handle the federal Constitution as law, to pronounce, if need be, portions of their own state constitutions void. Courts — that is the central fact — were to be used to preserve the constitutional system. Again — the repetition needs no apology — the principle and the practice of enforcing either a state or a national constitution as law is the pivotal matter which needs explanation and understanding.

We have already called attention to the principle of the separation of the powers of government, a principle widely held and in some state constitutions given explicit expression. With this was included, of course, the independence of the judiciary, which was supposed to make for the preservation of liberty. If this spirit or fact of independence were carried far enough, the courts would (and they did) announce their independent right to declare what the law is and to disregard the judgment of the legislature concerning the extent of its own authority. This independence, like so many other things, takes its roots in English history; no judges of England, had, it is true, gone further than to declare that "the common law will control Acts of Parliament and adjudge them to be utterly void...." But English courts had a considerable degree of independence in fact and, on the whole, much independence in spirit in endeavoring to maintain what they might possibly have called the law of the constitution,[37] certainly the essential rights of civil liberty.

The old Congress of the Confederation was especially tried by the readiness of the states to disregard the treaty of peace. The result of such conduct was confusion; in the conduct of foreign affairs it caused ineptitude, demoralizing incompetence. We have noticed in a preceding chapter that even in the time of the Confederation the Congress saw the desirability of courts' upholding treaties; when treaties are "constitutionally made" they become "part of the law of the land...." Resolutions of Congress called upon the state legislatures to repeal their objectionable acts and to authorize the courts to decide cases in accordance with the treaty and to disregard a state law in conflict with the treaty. The declaration, it is true, was not made that a court should disregard a distinct legislative enactment; but the statement nevertheless cannot be considered of no value in any attempt to discover the rise of judicial power.[38] This fact is significant chiefly as indicative of a tendency or a state of mind in the days immediately before the Federal Convention met.

In connection with the cases decided before the adoption of the federal Constitution, we find references to the reasoning of Vattel, to whose influence on the men of the Revolution attention was called on preceding pages of this volume. These pronouncements, restating the principles of the Revolution, were the product of a period of stress and storm in which elementary or fundamental doctrines — more important than institutional forms — were the common possession of the people; the courts were prepared to make those doctrines real in the law; they institutionalized a theory by acting on it. James Iredell, of North Carolina, who later became a member of the federal Supreme Court, said (1786, 1787), "We were not ignorant of the theory of the necessity of the legislature being absolute in all cases, because it was the great ground of the British pretensions." "Without an express Constitution the powers of the Legislature would undoubtedly have been absolute (as the Parliament in Great Britain is held to be), and any act passed, not inconsistent with natural justice (for that curb is avowed by the judges even in England), would have been binding on the people. The experience of the evils which the American war fully disclosed, attending an absolute power in a legislative body, suggested the propriety of a real, original contract between the people and their future Government, such, perhaps, as there has been no instance of in the world but in America." [39] This transmutation of Revolutionary doctrine into judicial decisions, in which the state courts took their stand against the authority of the legislature and maintained the state constitution, as the judges conceived the constitution to be, was not in all instances hailed with approval.[40] But the courts, as we have seen, gradually developed and asserted their power.

In some of the early state constitutions provisions were made for checks upon legislative powers. Had the duty of the courts been fully understood, those provisions, it may be, would not have been made. But on the whole, they bring out in strong light the fundamental thought of the time: there is danger in unchecked legislative power; absolute government is not free government; legislators must obey the law. And thus, if we are looking for a state of mind, for a philosophy of government, for basic principles on which courts act in refusing to recognize unconstitutional legislation, these attempts of the early constitution-makers to find methods of limiting legislative discretion rather strengthen than weaken the position and the theory of the courts, when they definitely carried into operation (without clearly assigned instruction from the people) this belief that only constitutionally-restrained government is free and safe.

To the reader who has been patient enough to follow the writer in discussing the principles of the Revolution as given on earlier pages, further discussion may seem unnecessary. But a word or two may not be amiss. The colonists flatly opposed parliamentary acts on the ground that such acts were unconstitutional and hence not binding. And after all, the essential principle is this: no one is bound to obey an act which is not law. In our anxiety to discover why a court can declare an act void, we may lose sight of this primary principle; the courts only recognize the supremacy of that principle and make it operative; the individual litigant declares an act void and asks the court to agree with him. We need to remember also the formal announcement of the Revolutionary days, "In all free states, the constitution is fixed", the constant use of Locke's second essay, and the repetition of Vattel's assertion that legislators cannot change the constitution without destroying the foundation of their own authority. Locke points out that according to the elementary principles of the common law, an officer acting without authority may be resisted.[41] Over and over again in the Revolutionary argument we find assertion that Parliament was bound and limited by the constitution; the colonists attributed to Britain a principle which they were to make actual in their own constitutions; and the courts, when opportunity arose, assumed the right, in their independence, to act upon that principle and make the Revolutionary doctrine as real as their own position permitted. If we look back through the ages, we see constantly arising the question: are there no limits on governmental power? The framers of our written constitutions sought to answer that question; they established bills of rights referring to rights which government did not create and which no government could violate. Once again, "who are a free people?" The courts carried the principle of inviolable law into practical effect in their administering of justice.[42]

The right of a court to declare an act of Congress void was acted upon only twice before the Civil War. Fifty-four years after Marbury v. Madison, the Supreme Court declared the Missouri Compromise beyond congressional competence and hence invalid. In these two cases, the Supreme Court might have avoided the issue of constitutionality altogether: in the Marbury case, Marshall could have properly construed the act of 1789 in such a way as to deny the jurisdiction of the Court without declaring a portion of the act void; Taney could have avoided any declaration concerning the constitutionality of the Missouri Compromise, and it seems fairly if not conclusively certain that his decision was unwarranted. The salient facts are, therefore, (1) the principle took its rise in the state courts; (2) the state courts have used the power freely in a multitude of cases; (3) especially for the first seventy years the most important power of the federal Supreme Court, in viewing the constitutionality of legislation, was the power to declare state acts invalid, if they violated the federal Constitution, laws, or treaties; this power preserved the federal system from disintegration.[43]

The judicial authority we are here considering may have gained strength from colonial conditions and the institutional practices of the old empire; for we cannot explain the rise and establishment of the principle in American constitutional structure without recognizing it, as we have said, as the product of history, the result of a developing attitude of mind toward government and authority. It may be well, therefore, to notice that there never had existed in America a legislature free from external restraint; in some colonies there had been charters granting and limiting colonial power. The early settlements had been made in some instances by corporations, and beyond the powers assigned to the corporation it of course could not go. The influence of the corporation has probably not received sufficient attention in our studies of the growth of American constitutionalism. Furthermore, the king in council exercised the right to disallow colonial acts, and the same body entertained appeals from colonial courts. Probably these experiences and these institutional practices had their effect in making clear to the American mind that a legislature need not necessarily have complete authority or be the ultimate and conclusive judge of its own power. But when all is said, the main line of argument and the main ideas announced by the courts arose during the course of the Revolutionary discussion. Those ideas took their beginning chiefly in the history of seventeenth-century England — the century in which America took her birth. The conscious line of approach to the principle of judicial independent right to protect civil liberty, the line followed in the early state decisions, rested on the basis of fundamental law (a principle distinctly stated and an ideal striven for during the Cromwellian period, especially 1647-1653) [44] and on doctrines of natural justice and natural right which were thought to be inviolable.

Before leaving this subject and passing on to consider the historical events of the early nineteenth century, attention may be called again to the relation of the courts to executive authority. The connection between the power to ignore unconstitutional legislation and to treat executive acts as valid, only if they be legal and constitutional, is evident; it is evident at least, if we are looking for fundamental principles. This power is of tremendous significance, one of the most important in our whole constitutional system. The right of a court in its ordinary distribution of justice to punish the agents of the highest executive power, if they act beyond the law, took its rise in English law; it is a primary principle of the British-American system of law and of British-American constitutionalism. Is it more than a. narrow step from this right and this principle, which keeps the executive within constitutional limits, to the right and the principle which restrain the legislature by refusing to treat unconstitutional enactments as law? Even if the two principles or rights be kept distinct and be without necessary logical connection, nevertheless the authority of a court — and of course this is true within the state constitutional system as well as within the federal — to restrain or hold in check executive power cannot be considered less important than the right to ignore unconstitutional legislation.

[1] "To the accomplishment of that task [of laying down the legal principles of nationalism] Marshall brought the master-mind of American constitutional government, hardly the perfection of legal reasoning and learning, but so sound a common-sense for the practical working of legal theory, so just an instinct for the national welfare, and so austere and unswerving a judicial fairness and openness of mind that no judge since may be compared with him." Introduction to The Constitutional Decisions of John Marshall (J. P. Cotton, Jr., ed.), I, p. xxxvi.

[2] It is doubtless this quality of Marshall's work which has occasionally induced some writers (in the present writer's judgment) to overstress his political purposes as distinguished from the compulsion of purely legal or, we might say, abstract principles of disembodied law — if there be such a thing.

[3] 2 Dallas 419 (1793).

[4] Marshall in the Virginia convention of 1788 said, "I hope that no gentleman will think that a state will be called at the bar of the federal court.... It is not rational to suppose that the sovereign power should be dragged before a court." Elliot, Debates, III, p. 555. Madison said, "It is not in the power of individuals to call any state into court." Ibid., p. 533. See also Hamilton, in The Federalist, no. LXXXI.

[5] 2 Dallas 419, 449.

[6] "The United States are sovereign as to all the powers of Government actually surrendered". 2 Dallas 419, 435.

[7] But it is not plain that the act meant that Georgia retained full sovereignty.

[8] Ames, The Proposed Amendments, loc. cit., p. 156.

[9] Messages and Papers of the Presidents (J. D. Richardson, compiler; hereafter referred to as Richardson, Messages and Papers), I, p. 260.

[10] Hans v. Louisiana, 134 U. S. 1, 16 (1890). An important early case in interpreting the amendment is Osborn v. Bank of the United States, 9 Wheaton 738 (1824). See also, Cohens v. Virginia, 6 Wheaton 264, 412 (1821).

[11] Naturally one may inquire (1) whether the states in adopting the Constitution including the third article did not thereby consent to suits; (2) whether the states retained their fundamental character or quality of sovereignty, for the jurists of 1793 and 1890 really agreed that the states retained only modified sovereignty. In the Hans v. Louisiana case Justice Harlan dissented as to the disapproval of Chishoim v. Georgia. He said that comments made upon the decision in Chisholm v. Georgia were not necessary to the determination of the present case and besides, "the decision in that case was based upon a sound interpretation of the Constitution as that instrument then was." In 1907 (Kawananakoa v. Polyblank, 205 U. S. 349, 353), we find this: "A sovereign is exempt from suit, not because of any formal conception of obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law...." In 1883 the Court declared that a state, by assuming the prosecution of debts owing to its citizens by another state, cannot create a controversy with another state within the meaning of the term as used in the Constitution. New Hampshire v. Louisiana, and New York v. Louisiana, 108 U. S. 76. In 1904, the question arose as to whether one state can sue another and be entitled to recover, when claims of individuals have passed absolutely into the hands of the state. The Court decided that the suit can be instituted: "Obviously that jurisdiction is not affected by the fact that the donor of these bonds could not invoke it." Four justices dissented. South Dakota v. North Carolina, 192 U. S. 286, 312.

[12] 3 Dallas 386 (1798).

[13] Ibid., 388. Capitalization and italics of the original omitted.

[14] Ibid., 399.

[15] But see Loan Association v. Topeka, 20 Wallace 655, 663 (1875), in which the Court speaks of "Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name."

[16] Ware v. Hylton, 3 Dallas 199, 236 (1796). Italics of the original omitted.

[17] Hylton v. the United States, 3 Dallas 171 (1796). The Constitution says "Representatives and direct taxes shall be apportioned among the several States ... according to their respective numbers...." Art. I, sec. 2, para. 3. "No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken." Art. I, sec. 9, para. 4.

[18] Pollock v. Farmers' Loan and Trust Co., 157 U. S. 429; 158 U. S. 601 (1895).

[19] Marbury v. Madison, 1 Cranch 137 (1803). In the case of Cooper v. Telfair, 4 Dallas 14, 19 (1800), Justice Chase said that "although it is alleged that all acts of the legislature, in direct opposition to the prohibitions of the constitution, would be void; yet, it still remains a question, where the power resides to declare it void? It is, indeed, a general opinion, it is expressly admitted by all this bar, and some of the Judges have, individually, in the circuits decided, that the supreme court can declare an act of congress to be unconstitutional, and, therefore, invalid; but there is no adjudication of the supreme court itself upon the point. I concur, however, in the general sentiment...." In this case the question was whether an act of Georgia was constitutional, and therefore the power to declare an act of Congress void was not really the question before the Court.

[20] Chief Justice Taft in Myers v. United States, 272 U. S. 52 (1926), said the opinion of Marshall in the Marbury case, as far as it bore on the right of a president to dismiss an officer, was obiter dictum. Justice McReynolds upheld the procedure of Marshall in every particular. Why he should do so, the lay mind fails to understand. If the Court in this instance had declared Marbury not entitled to his commission, would the decision have been conclusive of his rights? Can a conclusive decision concerning personal rights be laid down by a court in a case over which it has no jurisdiction? And if the Court had no authority to pass upon the rights involved, why could not Marshall say so and go on to another job?

[21] Statutes at Large, I, ch. 20, sec. 13. Italics of the original omitted.

[22] See A. C. McLaughlin, "Marbury vs. Madison Again," American Bar Association Journal, XIV, pp. 155-159. It has long been an established principle — not always conscientiously adhered to — that a court will adopt a construction of a statute, which, without doing violence to its fair meaning, will bring it into harmony with the Constitution. This principle offers opportunity for escaping the necessity of declaring an act void. See United States v. D. and H. Co., 213 U. S. 366 (1909), and Knights Templars' Indemnity Co. v. Jarman, 187 U. S. 197, 205 (1902), and cases there cited. A court often will so interpret a statute that it will not conflict with a fundamental or important principle of the common law. This statement may appear to the reader to have no bearing on the problem we are considering. But as a matter of fact, at least historically speaking, there is a close association between the attitude of courts toward the common law and their attitude in America toward the Constitution. The famous Doctor Bonham case, to which James Otis paid attention in his speech on the writs of assistance, was just this kind of a case; Coke was upholding the principles of the common law and he insisted on so construing a parliamentary act as not to violate the common law and fundamental principles of justice. In any attempt to understand the development of judicial power, we should not lose sight of the fact that there were supposed to be fundamental rights which government should not encroach upon; and if an act could bear a construction which would make it consistent with common law and with the essential justice supposed to be embodied in the common law, then that construction would be adopted by the court. The same principle obtains to-day in an American court; a statute will not receive a construction violating fundamental common law and old, established principle, if another construction can be reasonably made use of. See Marshall's statement declaring that an act of Congress ought not to be construed to violate the law of nations, "if any other possible construction remains...." Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804).

[23] United States v. Sprague et al., 282 U. S. 716 (1931).

[24] W. F. Dodd says that in Illinois alone the state supreme court "during the period from 1870 to 1913 passed upon 789 cases involving the constitutionality of statutes, and in more than a fourth of these cases statutes were declared invalid." W. F. Dodd, State Government (1922 ed.), p. 147.

[25] The classical presentation of the right of the legislature to decide on the extent of its own authority was given by Justice Gibson in Eakin v. Raub, 12 Sergeant and Rawle (Pennsylvania) 330, 350 (1825): "But, in theory, all the organs of the government are of equal capacity; or, if not equal, each must be supposed to have superior capacity only for those things which peculiarly belong to it; and as legislation peculiarly involves the consideration of those limitations which are put on the law-making power, and the interpretation of the laws when made, involves only the construction of the laws themselves, it follows, that the construction of the constitution, in this particular, belongs to the legislature, which ought, therefore, to be taken to have superior capacity to judge of the constitutionality of its own acts." Justice Gibson was speaking of the right of a state court to declare a state act void.

[26] 3 Dallas 386 (1798).

[27] 3 Dallas 171 (1796).

[28] 2 Dallas 304, 309 (1795).

[29] Max Farrand, "The First Hayburn Case, 1792," Am. Hist. Rev., XIII, pp. 281-285. Professor Farrand seems to demonstrate that Wilson, Blair, and Peters actually met the issue and declared the law unconstitutional. Notice also United States v. Yale Todd, referred to in a note appended to United States v. Ferreira, 13 Howard 40, 52-53 (1851). For further announcement of the doctrine, see Ogden v. Witherspoon, 3 North Carolina 227 (1802), and Federal Cases, no. 10, 461, where Marshall declared a state act void because it violated the principle of the separation of powers; see Chase's words in United States v. Callender, Federal Cases, no. 14,709 (1800), and Iredell's opinion in Minge v. Gilmour, Federal Cases, no. 9,631 (1798).

[30] A careful examination of the records so far as printed discloses the fact that "in every Congress from 1789 to 1802, the power of the Court to hold Acts of Congress invalid was not only recognized but endorsed by members of both political parties ... and that there is but one specific recorded objection ... namely by Charles Pinckney ... in 1799...." Charles Warren, Congress, the Constitution, and the Supreme Court, p. 97.

[31] The Federalist (1818 ed.), no. LXXVIII, p. 421. The importance of this idea of equality and independence, rather than superiority, I have already referred to, but I again call attention to it because that was one of the chief foundations for the doctrine we are considering.

[32] Note Oliver Ellsworth in the Connecticut convention. Elliot, Debates, II, p. 196. Wilson, in the Pennsylvania convention, announced that the courts would have this power "as a consequence of their independence, and the particular powers of government being defined...." McMaster and Stone, op. cit., p. 354. Note also Marshall in the Virginia convention. Elliot, Debates, III, p. 553. See Luther Martin, "Genuine Information," in Ibid., 7, p. 380. It will be recalled that Hamilton, Ellsworth, Wilson, and Martin had been members of the Federal Convention.

[33] On this phase of the subject, as indeed of the whole, a scholarly and able treatment will be found in C. G. Haines, The American Doctrine of Judicial Supremacy, second ed. A briefer statement is in A. C. McLaughlin, The Courts, the Constitution and Parties.

[34] The following are examples of state cases in which state legislative acts were declared unconstitutional by state courts or in which the principle of judicial review was announced: Whittington v. Polk, I Harris and Johnson (Maryland) 236, 241 (1802); Lindsay and others v. the Commissioners, 2 Bay (South Carolina) 38, 61-62 (1796); State v. ——— , 1 Haywood (North Carolina) 28, 29, 40 (1794); Bowman and others v. Middleton, 1 Bay (South Carolina) 252, 254 (1792), a conspicuous case, the court declaring an act void because it was against "common right" and "magna charta"; Kamper v. Hawkins, 1 Virginia Cases 20 (1793); Stidger v. Rogers, 2 Kentucky 52 (1801); State v. Parkhurst, 4 Halsted (New Jersey) 427 (1802); Austin v. University of Pennsylvania, I Yeates (Pennsylvania) 260, 261 (1793); Respublica v. Duquet, 2 Yeates (Pennsylvania) 493 (1799); Turner v. Turner's Executrix, 4. Call (Virginia) 234 (1792); Cases of the Judges, 4 Call (Virginia) 135 (1788). See also, Austin Scott, "Holmes vs. Walton: the New Jersey Precedent," Am. Hist. Rev., IV., pp. 456-469. The case was decided in 1780. Commonwealth v. Caton et al., 4 Call (Virginia) 5 (1782) contains an announcement of the theory. Rutgers v. Waddington (1784), often referred to, is important but is not a clear precedent. See [...], Cases on Constitutional Law, part 1, pp. 63-72. The two most conspicuous and consequential cases are Trevett v. Weeden (Rhode Island, 1786) and Bayard and Wife v. Singleton (North Carolina, 1787). For the former case, see the argument of J. M. Varnum, in P. W. Chandler, American Criminal Trials, II, p. 281 ff., and in Brinton Coxe, Judicial Power and Unconstitutional Legislation, p. 236 ff. Reference should also be made to W. P. Trent, "The Case of Josiah Philips" (1778), Am. Hist. Rev., I, pp. 444-454, which is not a substantial precedent in all respects. The newspapers in July, 1787, when the Federal Convention was in session, contained a notice that the General Court of New Hampshire had repealed a certain act "and thereby justified the conduct of the Justices of the Inferior Court who have uniformly opposed it as unconstitutional and unjust." Quoted in Warren, The Making of the Constitution, p. 337 and note 1.

[35] Farrand, Records, II, pp. 73-80. See also Ibid., II, pp. 27-28. At a later date, Mercer of Maryland, who was present in the Convention for only a few days altogether, disapproved of the doctrine; and Dickinson said he was impressed by Mercer's statement and thought no such power ought to exist, but he was "at a loss what expedient to substitute." Ibid., II, pp. 298-299. See also debates of June 4 in Madison's Notes in Ibid., I, p. 97; and Pierce's notes in Ibid., I, p. 109. This subject is briefly discussed in Charles Warren, The Making of the Constitution, p. 331 ff., and also in his Congress, the Constitution, and the Supreme Court, ch. IV. See also, F. E. Melvin, "The Judicial Bulwark of the Constitution," Am. Pol. Sci. Rev., VIII, pp. 167-203. A longer discussion is in Charles Beard, The Supreme Court and the Constitution, where the author, in an attempt to answer the question whether the Court usurped power to declare laws void, presents not only the words used in the Convention but also other evidence. Among other things he cites the Judiciary Act of 1789, and points to the number of men in the Congress passing that act who had been members of the Convention. Reference is also made to the fact that certain delegates in the Convention had direct knowledge of the exercise of this power by the state judges.

[36] The courts carried the principle and the philosophy on which it was based to its logical conclusion.

[37] Certainly worthy of special attention is the fact that the ordinary judiciary in Britain entertains cases involving the rights of a litigant who claims that his rights have been violated by an official; there is and was no special court having jurisdiction of cases involving the authority of officials; questions are passed upon by the ordinary courts of law in distributing justice to individuals. In other words, the courts did recognize as law the principles of the constitution protecting civil liberty, though they did not go so far as to pronounce parliamentary acts void.

[38] See Journals of Congress (1823 ed.), IV, pp. 730, 737.

[39] G. J. McRee, Life and Correspondence of James Iredell, II, pp. 146, 172-173.

[40] Madison said in the Federal Convention: "In R. Island the Judges who refused to execute an unconstitutional law were displaced, and others substituted, by the Legislature who would be willing instruments of the wicked & arbitrary plans of their masters." Farrand, Records, II, p. 28. This case must have been well known.

[41] It may seem strange to the reader that one should call attention to the common law of a country in which the theory holds that Parliament possesses sovereign authority and that what it does must be law. It is unnecessary to cite again the dicta of English judges. The essential fact is this: common law judges were and are engaged in announcing principles not laid down in formal legislative enactments. They may refer to precedents, but they make no pretense, in enforcing the common law, of carrying out the mandates of a government, mandates laid down in legislation. The principles they announce are supposed to have existed before governments, to be founded in custom and in substantial justice; such was the source of the belief that the English constitution embodied certain fundamental principles of common right — the colonists said natural right and justice. Had courts been accustomed only to interpret and apply legislative acts, they would have found it more difficult, more at variance with their habits of thought and their method of approach, to declare a legislative act void and of no effect. Furthermore, even the elementary common law principles, announced by Locke as justifying opposition to officials, were made the basis, by his own reasoning, of a constitutional right for opposition to unwarranted governmental action.

[42] The foundation for this power as an historical fact rested on the general assumptions that underlie compact and natural rights thinking: government is founded on compact; rights existed before government; governments are established to protect rights. See E. S. Corwin, "The 'Higher Law' Background of American Constitutional Law," Harvard Law Review, XLII, pp. 149-185, 365-409; A. C. McLaughlin, The Foundations of American Constitutionalism, especially ch. V.

[43] "The United States would not come to an end if we lost our power to declare an Act of Congress void." Speech of Holmes, February 15, 1913, Speeches of Oliver Wendell Holmes, quoted in Charles Warren, The Supreme Court in United States History, I, p. 17 and note 2. The power certainly appears of no supreme significance before the Civil Rights Cases, 1883, though the important principle of that case had been announced in earlier cases. There has been a marked increase in the number of cases since 1865.

[44] "The idea of limiting government by law was in the air. A reŽstablishment of the constitution in such form that it could not again be set aside by the rivalry of king and Parliament was probably the one thing that men of all parties desired." T. C. Pease, The Leveller Movement, p. 194. The author is speaking here of 1647, but in a measure the idea continued beyond that year.


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