The Activist

by Lawrence Goldstone

  Between these alternatives there is no middle ground. 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.

  If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

  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.

  This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.

  If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

  It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

  So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

  If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

  Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

  This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

  That it thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favour of its rejection.

  The judicial power of the United States is extended to all cases arising under the Constitution.

  Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?

  This is too extravagant to be maintained.

  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?

  There are many other parts of the Constitution which serve to illustrate this subject.

  It is declared that “no tax or duty shall be laid on articles exported from any State.” Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the Constitution, and only see the law?

  The Constitution declares that “no bill of attainder or ex post facto law shall be passed.”

  If, however, such a bill should be passed and a person should be prosecuted under it, must the Court condemn to death those victims whom the Constitution endeavours to preserve?

  “No person,” says the Constitution, “shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

  Here, the language of the Constitution is addressed especially to the Courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the Legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

  From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature.

  Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

  The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words:

  “I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.”

  Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him?

  If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.

  It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

  Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

  The rule must be discharged.

  APPENDIX II

  STUART V. LAIRD 5 U.S. (1 CRANCH) 299

  ERROR TO THE FIFTH CIRCUIT OF THE VIRGINIA DISTRICT

  MR. CHIEF JUSTICE Marshall having tried the cause in the court below, declined giving an opinion.

  MR. JUSTICE PATERSON delivered the opinion of the Court.

  On an action instituted by John Laird against Hugh Stuart, a judgment was entered in a Court for the Fourth Circuit in the Eastern District of Virginia, in December term, 1801. On this judgment, an execution was issued, returnable to April term, 1802, in the same court. In the term of December, 1802, John Laird obtained judgment at a Court for the Fifth Circuit in the Virginia District against Hugh Stuart and Charles L. Carter upon their bond for the forthcoming and delivery of certain property therein mentioned, which had been levied upon by virtue of the above execution against the said Hugh Stuart.

  Two reasons have been assigned by counsel for reversing t
he judgment on the forthcoming bond. 1. That as the bond was given for the delivery of property levied on by virtue of an execution issuing out of, and returnable to a court for the Fourth Circuit, no other court could legally proceed upon the said bond. This is true if there be no statutable provision to direct and authorize such proceeding. Congress has constitutional authority to establish from time to time such inferior tribunals as they may think proper and to transfer a cause from one such tribunal to another. In this last particular, there are no words in the Constitution to prohibit or restrain the exercise of legislative power.

  The present is a case of this kind. It is nothing more than the removal of the suit brought by Stuart against Laird from the Court of the Fourth Circuit to the Court of the Fifth Circuit, which is authorized to proceed upon and carry it into full effect. This is apparent from the ninth section of the act entitled “An act to amend the judicial system of the United States,” passed 29 April, 1802. The forthcoming bond is an appendage to the cause, or rather a component part of the proceedings.

  2. Another reason for reversal is that the judges of the Supreme Court have no right to sit as circuit judges, not being appointed as such, or in other words, that they ought to have distinct commissions for that purpose. To this objection, which is of recent date, it is sufficient to observe that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, afford an irresistible answer and have indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course the question is at rest, and ought not now to be disturbed.

  Judgment affirmed.

  NOTES

  ONE: LAW AND POLITICS

  1 Scalia speech quoted at http://www.courttv.com/archive/legaldocs/rights/scalia.html.

  2 Functionally, there was no difficulty, as the Court was not in session at the time.

  3 Letter to John Dickinson, December 19, 1801, found at http://memory.loc.gov/master/mss/mtj/mtj1/025/0200/0291.jpg.

  4 The three others were Dennis Ramsay, Robert Townsend Hooe, and William Harper.

  5 There has also been widespread speculation that the suit was a put-up job by Federalists, as part of a strategy to use the courts to thwart Jefferson.

  6 The final sentence of Section 13 reads: “The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases hereinafter specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and 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.”

  7 Yale law professor Bruce Ackerman has claimed that Marshall’s decision created a “new” Constitution.

  8 He should have declined even to sit on the case, as he had been a party to it. Marshall did in fact recuse himself from a companion case, Stuart v. Laird, which had promised to be far more incendiary.

  9 “The man who made the Court supreme” was coined by Marshall biographer Albert Beveridge.

  10 The Court was far less confrontational in Stuart, but in that case it acted without the chief justice.

  11 Elkins and McKitrick, Age of Federalism, p. 234.

  TWO: CONVENTION: A FEW GOOD MEN

  1 The convention had been called for May 14, but only representatives from Pennsylvania and Virginia were present, so the meeting was adjourned.

  2 http://www.archives.gov/national-archives-experience/charters/constitution_founding_fathers_overview.html.

  3 The only provision in the Articles for national courts was in adjudicating prize cases—ownership, and disposition of ships taken on the high seas.

  4 Not every state had an executive per se.

  5 Shays’s Rebellion had aimed at just this.

  6 Farrand, v. 1, p. 29.

  7 Ibid., v. 1, p. 244.

  8 Ibid., v. 1, p. 124; Paterson and Rutledge agreed on little else.

  9 Ibid.

  10 Article III, Section 2, Clause 1 reads: “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, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

  11 Robert Lowry Clinton, for example, stated categorically that “the idea of limiting legislative power by judicial nonapplication of statutes in certain cases was clearly understood” (Clinton, p. 56). Forrest McDonald asserted that there was “general agreement” that the courts would “have the power to strike down legislative acts if they were in violation of the Constitution” (Novus Ordo Seclorum, p. 254).

  12 McDonald noted that “at least delegates of widely divergent political views . . . asserted that the courts would have such power and no one argued to the contrary” (ibid.).

  13 http://www.yale.edu/lawweb/avalon/virginia.htm.

  14 Ibid.

  15 http://www.mass.gov/legis/const.htm.

  16 Ibid.

  17 A council of revision was one of Madison’s favored notions. He fought for it long and hard, but it was ultimately rejected by the delegates.

  18 Beveridge is among the few who recognized the distinction. “No words in the Constitution gave the Judiciary the power to annul legislation. The subject had been discussed . . . but the brief and scattering debate had arisen upon the proposition to make the President and Justices of the Supreme Court members of a Council of Revision with power to negative [sic; this word meant “negate” or “veto” at the time] acts of Congress. No direct resolution was ever offered to the effect that the Judiciary should be given power to declare acts of Congress unconstitutional” (Bev-eridge, v. III, pp. 114–15).

  19 Farrand, v. 1, p. 21. Significantly, section 8 of the plan is listed after that which defines the executive (section 7) but before the judiciary (section 9), a clear indication that Madison, although the council of revision would contain judges, considered it distinct from the judiciary itself. The exact wording is: “The Executive and a convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by [blank] of the members of each branch.”

  20 This debate is in Farrand, v. 1, pp. 97–103.

  21 Mason claimed that he would have less concern if the executive consisted of more than one person. “If more than one had been fixed on, greater powers might have been entrusted to the Executive. He hoped the attempt to give such powers would have its weight hereafter as an argument for increasing the number of the Executive.”

  22 Since Virginia only had six delegates at the Convention (George Wythe had gone home due to illness), Madison and Mason, the state’s two most powerful delegates, were unable to persuade a single colleague, including Edmund Randolph, the titular author of the Virginia Plan, to support a Council of Revision instead. Had even one other Virginian voted no, the state’s vote would have been “divided.”

  23 This debate is in Farrand, v. 2, pp. 73–80.

  24 Martin later served for thirty years as Maryland’s attorney general and represented his state, unsuccessfully, in another of Marshall’s cataclysmic decisi
ons, McCulloch v. Maryland.

  25 But Luther Martin left the convention in disgust at the end of August to become an opponent of the Constitution in the Maryland ratifying debates. Yet, despite the source, this statement is also cited as proof of the delegates’ acceptance of judicial review (Clinton, p. 60).

  26 Madison made clear the following year that he viewed a council of revision as necessarily encompassing both branches. “A revisionary power is meant as a check to precipitate, to unjust, and to unconstitutional laws. These important ends would it is conceded be more effectually secured, without disarming the Legislature of its requisite authority, by requiring bills to be separately communicated to the Exec: &Judicy depts[.] If either of these object, let 2.3, if both 3.4 of each House be necessary to overrule the objection; and if either or both protest agst a bill as violating the Constitution, let it moreover be suspended notwithstanding the overruling proportion of the Assembly, until there shall have been a subsequent election of the H. of Ds and a re-passage of the bill by 2.3 or 3.4 of both Houses, as the case may be. It sd not be allowed the Judges or ye. Executive to pronounce a law thus enacted unconstitul & invalid. In the State Constitutions & indeed in the Fedl one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making ye decision, it results to them by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Dept paramount in fact to the Legislature, which was never intended and can never be proper.” Madison, October 1788: “Observations on the ‘Draught of a Constitution for Virginia’ ”: http://memory.loc.gov/cgi-bin/query/r?ammem/mjmtext:@FIELD(DOCID+@lit( jm050096)).