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$ 376. Let us examine the grounds on which this doctrine is maintained. The Constitution declares, (Art. 6,) that “ This con
utive, and the court must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges; and, on that point, the President is independent of both.
“ The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the executive, when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.”
Again : during the administration of President Buchanan the Supreme Court, in a case before it involving a question of personal liberty, denied the power of Congress to exclude slavery from the Territories. This opinion became of vital interest and importance in the Presidential election which followed, and President Lincoln thus referred to it in his inaugural: “I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding, in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
“Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes. One section of our country believes slavery is right and ought to be extended, while the other believes it is wrong and ought not to be extended. This is the only substantial dispute. The fugitive-slave clause of the Constitution, and the law for the suppression of the foreign slave-trade, are each as well enforced, perhaps, as any law can ever be in a community where the moral sense of the people imperfectly supports the law itself. The great body of the people abide by the dry legal obligation in both cases, and a few break over in each. This I think cannot be perfectly cured; and it would be worse in both cases after the separation of the sections than before. The foreign slave-trade, now imperfectly suppressed, would be ultimately revived without restriction in one section; while fugitive slaves, now only partially surrendered, would not be surrendered at all, by the other."
Sach were the views of Presidents Jackson and Lincoln. The first were strongly condemned by able statesmen, under the lead of Mr. Clay and Mr. Webster, and as earnestly defended. The second have also been subjected to sharp criticism, notably at the hands of Professor Samuel Tyler in his Memoir of Chief Justice Taney. We con
stitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties, &c., shall be the supreme law of the land.” It also declares, (Art. 3,) that “the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, and which shall be made, under their authority.” It further declares, (Art. 3,) that the judicial power of the United States 6 shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.” Here, then, we have express and determinate provisions upon the very subject. Nothing is imperfect, and nothing is left to implication. The Constitution is the supreme law; the judicial power extends to all cases arising in law and equity under it; and the courts of the United States are, and, in the last resort, the Supreme Court of the United States is, to be vested with this judicial power. No man can doubt or deny that the power to construe the Constitution is a judicial power. The power to construe a treaty is clearly so, when the case arises in judgment in a controversy between individuals. The like principle must apply where the meaning of the Constitution arises in a judicial controversy ; for it is an appropriate function of the judiciary to construe laws. If, then, a case under the Constitution does arise, if it is capable of judicial examination and decision, we see that the very tribunal is appointed to make the decision. The only point left open for controversy is, whether such decision, when made, is conclusive and binding upon the States and the people of the States. The reasons why it should be so deemed will now be submitted.
$ 377. In the first place, the judicial power of the United States rightfully extending to all such cases, its judgment becomes ipso tent ourselves here with a single remark : The boundary between legislative and judicial power is in general clear. To declare what the law is, is the province of the latter; to declare what it shull be, within the limits of the Constitution, pertains to the former. And when the question is, what are those limits, it is the duty of every party called upon to exercise an independent authority, carefully and conscientiously, on a full consideration of all the light he can obtain, to satisfy himself that he does not overstep the bounds which the people, in delegating their authority to him, have set to his power. That is a safe, proper, and just rule for every citizen, every officer, and every tribunal to apply wherever there is a discretion to exercise.]
1 4 Dane's Abridg. ch. 187, art. 20, § 15, p. 590; Dane's App. $ 42, p. 49, 50; § 44, p. 52, 53; 1 Wilson's Lectures, 461, 462, 463.
2 See Address of Congress, Feb. 1787; Journals of Congress, p. 33; Rawle on the Constitution, App. 2, p. 316.
3 Bacon's Abridgment, Statute H.
facto conclusive between the parties before it, in respect to the points decided, unless some mode be pointed out by the Constitution in which that judgment may be revised. No such mode is pointed out. Congress is vested with ample authority to provide for the exercise by the Supreme Court of appellate jurisdiction from the decisions of all inferior tribunals, whether State or national, in cases within the purview of the judicial power of the United States; but no mode is provided by which any superior tribunal can re-examine what the Supreme Court has itself decided. Ours is emphatically a government of laws and not of men; and judicial decisions of the highest tribunal, by the known course of the common law, are considered as establishing the true construction of the laws which are brought into controversy before it. The case is not alone considered as decided and settled, but the principles of the decision are held, as precedents and authority, to bind future cases of the same nature. This is the constant practice under our whole system of jurisprudence. Our ancestors brought it with them when they first emigrated to this country, and it is, and always has been, considered as the great security of our rights, our liberties, and our property. It is on this account that our law is justly deemed certain, and founded in permanent principles, and not dependent upon the caprice or will of particular judges. A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.
$ 378. This known course of proceeding, this settled habit of thinking, this conclusive effect of judicial adjudications, was in the full view of the framers of the Constitution. It was required and enforced in every State in the Union, and a departure from it would have been justly deemed an approach to tyranny and arbitrary power, to the exercise of mere discretion, and to the abandonment of all the just checks upon judicial authority. It would seem impossible, then, to presume, if the people intended to introduce a new rule in respect to the decisions of the Supreme Court, and to limit the nature and operations of their judgments in a manner wholly unknown to the common law and to our existing jurisprudence, that some indication of that intention should not be apparent on the face of the Constitution. We find (Art. 4) that the Constitution has declared, that full faith and credit shall be given in each State to the judicial proceedings of every other State. But no like provision has been made in respect to the judgments of the courts of the United States, because they were plainly supposed to be of paramount and absolute obligation throughout all the States. If the judgments of the Supreme Court upon constitutional questions are conclusive and binding upon the citizens at large, must they not be equally conclusive upon the States ? If the States are parties to that instrument, are not the people of the States also parties ?
$ 379. It has been said “ that however true it may be that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the other departments of the government, not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”i Now it is certainly possible that all the departments of a government may conspire to subvert the constitution of that government by which they are created. But if they should so conspire, there would still remain an adequate remedy to redress the evil. In the first place, the people, by the exercise of the elective franchise, can easily check and remedy any dangerous, palpable, and deliberate infraction of the Constitution in two of the great departments of government; and in the third department they can remove the judges, by impeachment, for any corrupt conspiracies. Besides these ordinary remedies, there is a still more extensive one embodied in the form of the Constitution, by the power of amending it, which is always in the power of three fourths of the States. It is a supposition not to be endured for a moment, that three fourths of the States would conspire in any deliberate, dangerous, and palpable breach of the Constitution. And if the judicial department alone should attempt any usurpation, Congress, in its legislative capacity, has full power to abrogate the injurious effects of such a decision. Practically speaking, therefore, there can be very little danger of any such usurpation or deliberate breach.
1 Madison's Virginia Report, Jan. 1800, p. 8, 9.
$ 380. But it is always a doubtful mode of reasoning to argue, from the possible abuse of powers, that they do not exist. Let us look for a moment at the consequences which flow from the doctrine on the other side. There are now twenty-four States in the Union, and each has, in its sovereign capacity, a right to decide for itself in the last resort what is the true construction of the Constitution, what are its powers, and what are the obligations founded on it. We may, then, have, in the free exercise of that right, twenty-four honest but different expositions of every power in that Constitution, and of every obligation involved in it. What one State may deny, another may assert; what one may assert at one time, it may deny at another time. This is not mere supposition. It has, in point of fact, taken place. There never has been a single constitutional question agitated, where different States, if they have expressed any opinion, have not expressed different opinions; and there have been, and from the fluctuating nature of legislative bodies it may be supposed that there will continue to be, cases in which the same State will at different times hold different opinions on the same question. Massachusetts at one time thought the embargo of 1807 unconstitutional; at another a majority, from the change of parties, was as decidedly the other way. Virginia, in 1810, thought that the Supreme Court was the common arbiter; in 1829 she thought differently. What, then, is to become of the Constitution, if its powers are thus perpetually to be the subject of debate and controversy? What exposition is to be allowed to be of authority? Is the exposition of one State to be of authority there, and the reverse to be of authority in a neighboring State entertaining an opposite exposition? Then there would be at no time in the United States the same Constitution in operation over the whole people. Is a power which is doubted or denied by a single State to be suspended either wholly or in that State? Then the Constitution is practically gone, as a uniform system, or, indeed, as any system at all, at the pleasure of any State. If the power to nullify the Constitution exists in a single State, it may rightfully exercise it at its pleasure. Would not this be a far more dangerous and mischievous power than a power granted by all the States to the judiciary to construe the Constitution ? Would not a tribunal, appointed under the
1 See Anderson v. Dunn, 6 Wheaton's R. 204, 232.