The Constitution of the United States of America: Analysis and Interpretation Part 113

[261] 2 Dall. 409 (1792).

[262] 1 Stat. 243 (1792).

[263] 3 Dall. 171 (1796).

[264] 1 Cr. 137 (1803).

[265] 1 Stat. 73, 81.

[266] Cr. 137, 175-180.

[267] Ibid. 180. The opinion in Marbury _v._ Madison is subject to two valid criticisms. In the first place the construction of the 13th Section of the Judiciary Act, if not erroneous, was unnecessary since the section could have been interpreted, as it afterward was, merely to give the Court the power to issue mandamus and other writs when it had jurisdiction but not for the purpose of acquiring jurisdiction. The exclusive interpretation of the Court's original jurisdiction, sometimes made a subject of criticism, had been adopted by the Court in Wiscart _v._ Dauchy, 3 Dall. 321 (1796), and while couched in terms which had later to be qualified in Cohens _v._ Virginia, 6 Wheat. 264, 398-402 (1821), by Marshall himself, has remained the doctrine of the Court.

Secondly, there was good ground for Jefferson's criticism, which did not touch the const.i.tutional features of the decision, but did inveigh against the temerity of the Court in pa.s.sing on the merits of a case of which, by its own admission, it had no jurisdiction.

[268] In this connection Justice Patterson's jury charge in Van Horne's Lessee _v._ Dorrance, 2 Dall. 304, 308 (1795), is of significance for its discussion of the relation of the Const.i.tution, the legislature and the courts. A const.i.tution, he said, "is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Const.i.tution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it." Legislatures are the creatures of the Const.i.tution to which they owe their existence and powers, and in case of conflict between a legislative act and the Const.i.tution it is the duty of the courts to hold it void. In accordance with these doctrines fortified by natural law concepts, the circuit court invalidated a Pennsylvania statute as being in conflict with the federal and State Const.i.tutions as a violation of the inalienable rights of property. In 1799 the federal circuit court in North Carolina, over which Chief Justice Marshall presided, invalidated an act of North Carolina as a violation of the contract clause and the separation of powers in Ogden _v._ Witherspoon, 18 Fed. Cas. No. 10,461 (1802). The reliance on general principles and natural rights continued in Fletcher _v._ Peck, 6 Cr. 87, 139 (1810) where the Supreme Court invalidated an act of the Georgia legislature revoking an earlier land grant as a violation either of the "general principles which are common to our free inst.i.tutions," or of the contract clause.

[269] This phase of judicial review is described by Justice Sutherland as follows: "From the authority to ascertain and determine the law in a given case, there necessarily results, in case of conflict, the duty to declare and enforce the rule of the supreme law and reject that of an inferior act of legislation which, transcending the Const.i.tution, is of no effect and binding on no one. This is not the exercise of a substantive power to review and nullify acts of Congress, for no such substantive power exists. It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law." Adkins _v._ Children's Hospital, 261 U.S. 525, 544 (1923). In United States _v._ Butler, 297 U.S. 1, 62 (1936), Justice Roberts for the Court reduced judicial review to very simple terms when he declared that when an act is challenged as being unconst.i.tutional, "the judicial branch of the Government has only one duty,--to lay the article of the Const.i.tution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former."

[270] Note, for example, the following statement of Chief Justice Marshall: "Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing." Osborn _v._ Bank of United States, 9 Wheat. 738, 866 (1824). Note also the a.s.sertion of Justice Roberts: "All the court does, can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment.

This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the Const.i.tution; and, having done that, its duty ends." United States _v._ Butler, 297 U.S. 1, 62-63 (1936).

[271] Chicago & Grand Trunk R. Co. _v._ Wellman, 143 U.S. 339, 345 (1892).

[272] Ibid. _See also_ Muskrat _v._ United States, 219 U.S. 346 (1911); Ma.s.sachusetts _v._ Mellon, 262 U.S. 447 (1923); Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450 (1945); United Public Workers of America _v._ Mitch.e.l.l, 330 U.S. 75 (1947); Fleming _v._ Rhodes, 331 U.S.

100, 104 (1947)

[273] Rescue Army _v._ Munic.i.p.al Court of Los Angeles, 331 U.S. 549, 568-575 (1947). _See also_ Alma Motor Co. _v._ Timken-Detroit Axle Co., 329 U.S. 129 (1946); Spector Motor Service _v._ McLaughlin, 323 U.S.

101, 105 (1944); Coffman _v._ Breeze Corporations, 323 U.S. 316, 324-325 (1945); Carter _v._ Carter Coal Co., 298 U.S. 238, 325 (1936); Siler _v._ L. & N.R. Co., 213 U.S. 175, 191 (1909); Berea College _v._ Kentucky, 211 U.S. 45, 53 (1908); and the cases cited in the notes to the preceding paragraph. [Transcriber's Note: Reference is to Footnote 272, above.]

[274] 331 U.S. 549, 571 (1947).

[275] _See_ pp. 546-548. For the distinction between inherent and precautionary limitations to the exercise of judicial review and the operation of judicial review within them, _see_ Edward S. Corwin, Judicial Review in Action, 74 Univ. of Pennsylvania L. Rev. 639 (1926).

For the limitations generally _see also_ the concurring opinion of Justice Brandeis in Ashwander _v._ Tennessee Valley Authority, 297 U.S.

288, 346-356 (1936), and the cases cited therein.

[276] One of the earliest formulations of this rule is that by Justice Iredell in Calder _v._ Bull, 3 Dall. 386, 399 (1798), and by Justice Chase in the same case, p. 394. On the other hand Justice Chase in this same case a.s.serted that there were certain powers which "it cannot be presumed" have been entrusted to the legislature. _See also_ Sinking-Fund Cases, 99 U.S. 700 (1879).

[277] Ogden _v._ Saunders, 12 Wheat. 213 (1827); Providence Bank _v._ Billings, 4 Pet. 514, 549 (1830) (argument of counsel); Legal Tender Cases, 12 Wall. 457 (1871); Madden _v._ Kentucky, 309 U.S. 83 (1940); Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450 (1945).

_See also_ Justice Moody's dissenting opinion in Howard _v._ Illinois C.R. Co. (The Employers' Liability Cases), 207 U.S. 463, 509-511 (1908).

[278] Adkins _v._ Children's Hospital, 261 U.S. 525 (1923). "But freedom of contract is, nevertheless, the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circ.u.mstances." Ibid.

546.

[279] Kovacs _v._ Cooper, 336 U.S. 77, 88 (1949) opinion of Justice Reed. _See_ Justice Frankfurter's concurring opinion for a criticism of this rule. For other cases imputing to freedom of religion and the press a preferred position so as to reverse the presumption of validity _see_ Herndon _v._ Lowry, 301 U.S. 242, 258 (1937); United States _v._ Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938); Thornhill _v._ Alabama, 310 U.S. 88, 95 (1940); Schneider _v._ State, 308 U.S. 147, 161 (1939); Bridges _v._ California, 314 U.S. 252, 262-263 (1941); Murdock _v._ Pennsylvania, 319 U.S. 105, 115 (1943); Prince _v._ Ma.s.sachusetts, 321 U.S. 158, 164 (1944); Follett _v._ McCormick, 321 U.S. 573, 575 (1944); Marsh _v._ Alabama, 326 U.S. 501 (1946); Board of Education _v._ Barnette, 319 U.S. 624, 639 (1943); Thomas _v._ Collins, 323 U.S. 516, 530 (1945); Saia _v._ New York, 334 U.S. 558, 562 (1948). Justice Frankfurter has criticized the concept of "the preferred position" of these rights as a phrase that has "uncritically crept into some recent opinions" of the Court, Kovacs _v._ Cooper, 336 U.S. 77, 90 (1949); and Justice Jackson in a dissent has also opposed the idea that some const.i.tutional rights have a preferred position. Brinegar _v._ United States, 338 U.S. 160, 180 (1949). "We cannot," he said, "give some const.i.tutional rights a preferred position without relegating others to a deferred position; * * *"

[280] Watson _v._ Buck, 313 U.S. 387 (1941); Justice Iredell's opinion in Calder _v._ Bull, 3 Dall. 386 (1798); Jacobson _v._ Ma.s.sachusetts, 197 U.S. 11 (1905). _See also_ Cohen _v._ Beneficial Industrial Loan Corp., 337 U.S. 541 (1949); Daniel _v._ Family Security Life Ins. Co., 336 U.S. 220 (1949); Railway Express Agency _v._ New York, 336 U.S. 106 (1949); Wickard _v._ Filburn, 317 U.S. 111 (1942); United States _v._ Petrillo, 332 U.S. 1 (1947); American Power & Light Co. _v._ Securities & Exchange Commission, 329 U.S. 90 (1946); Suns.h.i.+ne Anthracite Coal Co.

_v._ Adkins, 310 U.S. 381 (1940). _See also_ Railroad Retirement Board _v._ Alton R. Co., 295 U.S. 330 (1935); Home Bldg. & Loan a.s.soc. _v._ Blaisdell, 290 U.S. 398 (1934); Arizona _v._ California, 283 U.S. 423 (1931); McCray _v._ United States, 195 U.S. 27 (1904); Hamilton _v._ Kentucky Distilleries & W. Co., 251 U.S. 146 (1919). Compare, however, Bailey _v._ Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (1922), where the Court considered the motives of the legislation.

[281] 198 U.S. 45 (1905).

[282] 297 U.S. 1 (1936). The majority opinion evoked a protest from Justice Stone who said in dissenting: "The power of courts to declare ... [an act of Congress unconst.i.tutional] is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconst.i.tutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint.

For the removal of unwise laws from the statute books appeal lies not to the courts but to the ballot and to the processes of democratic government." Ibid. 78-79.

[283] United States _v._ Congress of Industrial Organizations, 335 U.S.

106 (1948); Miller _v._ United States, 11 Wall. 268 (1871).

[284] _See_, for example, Michaelson _v._ United States, 266 U.S. 42 (1924), where the Court narrowly construed those sections of the Clayton Act regulating the power of courts to punish contempt in order to avoid const.i.tutional difficulties. _See also_ United States _v._ Delaware & H.R. Co., 213 U.S. 366 (1909), where the Hepburn Act was narrowly construed. Judicial disallowance in the guise of statutory interpretation was foreseen by Hamilton, _see_ Federalist No. 81.

[285] Pollock _v._ Farmers' L. & T. Co., 158 U.S. 429, 601, 635 (1895).

[286] In the first Guffey-Snyder (Bituminous Coal) Act of 1935 (49 Stat.

991), there was a section providing for separability of provisions, but the Court none the less held the price-fixing provisions inseparable from the labor provisions which it found void and thereby invalidated the whole statute. Carter _v._ Carter Coal Co., 298 U.S. 238, 312-316 (1936). On this point _see also_ the dissent of Chief Justice Hughes.

Ibid. 321-324.

[287] 157 U.S. 429, 574-579 (1895).

[288] Justice Brandeis dissenting in Burnet _v._ Coronado Oil & Gas Co., 285 U.S. 393, 405-411 (1932) states the rules governing the binding force of precedents and collects the decisions overruling earlier decisions to 1932. In Helvering _v._ Griffiths, 318 U.S. 371, 401 (1948), Justice Jackson lists other cases overruled between 1932 and 1943. _Cf._ Smith _v._ Allwright, 321 U.S. 649 (1944) for similar list.

[289] 321 U.S. 649, 665 (1944).

[290] 295 U.S. 45 (1935).

[291] 321 U.S. 649, 669. Justice Roberts in a dissent, in which Justice Frankfurter joined, also protested against overruling "earlier considered opinions" in Mahnich _v._ Southern S.S. Co., 321 U.S. 96, 112-113 (1944). More recently in United States _v._ Rabinowitz, 339 U.S.

56 (1950), Justice Frankfurter has protested in a dissent against reversals of earlier decisions immediately following changes of the court's members.h.i.+p. "Especially ought the Court not reenforce needlessly the instabilities of our day by giving fair ground for the belief that Law is the expression of chance--for instance, of unexpected changes in the Court's composition and the contingencies in the choice of successors." Ibid. 80.

[292] _See_ Corwin, Judicial Review in Action, 74 University of Pennsylvania Law Review 639 (1926).

[293] Levering & Garrigues Co. _v._ Morrin, 289 U.S. 103, 105 (1933), citing Mosher _v._ Phoenix, 287 U.S. 29, 30 (1932).

[294] Levering & Garrigues Co. _v._ Morrin, 289 U.S. 103, 105 (1933).

_See also_ Binderup _v._ Pathe Exchange, 263 U.S. 291, 305-308 (1923); South Covington & C. St. Ry. Co. _v._ Newport, 259 U.S. 97, 99 (1922); Hull _v._ Burr, 234 U.S. 712, 720 (1914); The Fair _v._ Kohler Die Co., 228 U.S. 22, 25 (1913); Montana Catholic Missions _v._ Missoula County, 200 U.S. 118, 130 (1906); Western Union Tel. Co. _v._ Ann Arbor R. Co., 178 U.S. 239 (1900).

[295] Newburyport Water Co. _v._ Newburyport, 193 U.S. 561, 576 (1904).

For these issues, _see also_ Bell _v._ Hood, 327 U.S. 678 (1946).

[296] Levering & Garrigues Co. _v._ Morrin, 289 U.S. 103, 105-106 (1933).

[297] 299 U.S. 109, 112-113 (1936).

[298] Whether the doctrine that the plaintiff must allege the const.i.tutional question to make the case one arising under the Const.i.tution rests on const.i.tutional or statutory grounds is uncertain.

_See_ Tennessee _v._ Union and Planters' Bank, 152 U.S. 454 (1894); Oregon Short Line and Utah N. Ry. Co. _v._ Skottowe, 162 U.S. 490, 492 (1896); Galveston, H. & S.A. Ry. Co. _v._ Texas, 170 U.S. 226, 236 (1898); Sawyer _v._ Kochersperger, 170 U.S. 303 (1898); Board of Councilmen of Frankfort _v._ State National Bank, 184 U.S. 696 (1902); Boston and Montana Consolidated Copper & Silver Mining Co. _v._ Montana Ore Purchasing Co., 188 U.S. 632, 639 (1903). Some of these cases apply to the removal of cases from State courts where the plaintiff does not aver a federal question. On this point note the following statement of Chief Justice Fuller in Arkansas _v._ Kansas & T.C. Co. & S.F.R., 183 U.S. 185, 188 (1901): "Hence it has been settled that a case cannot be removed from a State court into the Circuit Court of the United States on the sole ground that it is one arising under the Const.i.tution, laws or treaties of the United States, unless that appears by plaintiff's statement of his own claim; and if it does not so appear, the want of it cannot be supplied by any statement of the pet.i.tion for removal or in the subsequent pleadings. And moreover that jurisdiction is not conferred by allegations that defendant intends to a.s.sert a defence based on the Const.i.tution or a law or treaty of the United States, or under statutes of the United States, or of a State, in conflict with the Const.i.tution."

[299] 5 Cr. 61 (1809).

[300] 9 Wheat. 738 (1824).

[301] 115 U.S. 1 (1885).