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the courts are the final interpreters of the constitutional powers not only of executive and administrative officers but of the legislatures themselves. Independently of express statement to this effect in the Constitution it has become an established principle that no statute is valid if inconsistent with the provisions of the Constitution from which the enacting legislature derives its powers. So, similarly, no act or order of an executive official is legal for the performance or issuance of which a constitutional authorization cannot be shown. A State statute inconsistent with the Constitution of that State is, therefore, invalid, and an act of Congress not warranted by the provisions of the Federal Constitution is similarly void. In addition to being subordinate to the provisions of the State Constitution, every act of a State official or organ must conform to the requirements of the Federal Constitution, and this applies as well to the provisions of the Constitution of the State as to the statutes of its legislature.

This principle that statutory law in order to be valid must be in conformity with constitutional requirements is a product of American jurisprudence, and peculiar to it. In this country alone is the written constitutional law not only morally, but legally restrictive of the lawmaking branch of the government, and the final interpretation of these restrictions, express and implied, vested in the judicial department."


• Professor A. V. Dicey in his well-known treatise, The Law of the Constitution (7th ed., 1908, note vii, Appendix), calls attention to the three different meanings of the phrase "unconstitutional law” as employed in England, France, and the United States. In England it means simply that, in the opinion of the person using it, the measure is opposed to the spirit of the unwritten principles of constitutional practice, but not that it is, for that reason, void of legal force. In France the term means that the act is contrary to the provisions of the written Constitution, but not that the courts

One further point with reference to the nature of the power exercised by courts when passing upon the constitutional validity of laws requires mention. This is that the point at issue between the legislature and the courts, or between an appellate tribunal and the courts whose decrees it reviews, is often a question not as to the meaning to be given to constitutional provisions, but as to the correctness of certain findings of fact. Thus, to illustrate, a State legislature having prescribed a maximum rate which railroads may charge, or established a rule as a proper police regulation, it may become necessary for the court to determine whether in fact the prescribed rate is so low as to be confiscatory and therefore to amount to a taking of property without due process of law, or whether the police regulation is in fact, all the circumstances involved being considered, a reasonable one and the consequent limitation upon the private rights of property or freedom of contract justified as such. Here there is no dispute as to the meaning of the constitutional provision with reference to the taking of property without due process of law, nor any denial of the right of the Federal Supreme Court to hold void State laws which violate this provision. The only dispute or question involved is whether in fact the given rate is confiscatory, or whether the police regulation is justified as a legitimate exercise of the so-called “Police Power.”

This American doctrine as to the invalidity of unconstitutional legislative acts had received a certain degree will refuse to recognize its legal validity. The word "unconstitutional,” says Dicey, “would probably though not of necessity be, when employed by a Frenchman, a term of censure.” In the United States an unconstitutional measure is one not warranted by the written instruments of government of the States or of the United States, and, as such, is held not to be a law at all. It is an ultra vires measure, and at most only a vain attempt upon the part of the enacting body to create a law.


of acceptance, though not without protest, in the courts of the States prior to 1803, but it was first in that year in the great case of Marbury v. Madison that the Supreme Court of the United States by its acceptance of it, and Chief Justice Marshall by the opinion which he rendered in support of it, finally established the doctrine as a fundamental principle of American constitutional jurisprudence. It is true that Marshall's reasoning is defective in so far as it is based on the idea that this judicial power necessarily exists in a government organized under a written Constitution, but he is upon firm ground when he points out that the Federal judicial power is extended to "all cases, in law or equity, arising under the Constitution,” and that, in the exercise of this jurisdiction, thus specifically given, it is necessary that in cases involving conflicts between statutory and constitutional provisions, the courts should give effect to the Constitution under which they are organized.

Constitutionality of State laws

When it is said that the power vested in the courts of this country to hold void measures enacted by the lawmaking branch of the governments of which they themselves constitute the judicial branch, is a unique one, no reference is had to the authority of our judicial tribunals to refuse to recognize the validity of those acts of the legislatures of the States which are in conflict with the provisions of the Federal law, for this is a right determined by the supremacy of national law over State law. This supremacy is clearly stated in that provision of Article VI of the Federal Constitution which declares that “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." It was, indeed, for a time strenuously argued by adherents of the States' Rights school that the right of final determination as to whether there is a conflict between State and Federal law was possessed by the State courts as well as by the Federal Supreme Court, in cases arising therein, but, the Federal supremacy being conceded the right to hold State laws invalid because contrary to the Federal Constitution and to the laws passed and treaties entered into in pursuance thereof is not a different power from that known to or exercised by all constitutional States, when dealing with the acts or ordinances of subordinate lawmaking bodies, as for example of colonial or local legislatures, or, indeed, of administrative agencies with reference to the rules and regulations issued by them. Here the general doctrine of principal and agent applies. When, however, we turn to the power of our Federal courts to hold void the acts of Congress, or of the State courts to refuse recognition to the acts of the legislatures of their respective States, the question is quite another one. Here we have the exercise by the judicial branch of a government of the right to place its interpretation of the power granted by a written Constitution above the interpretation which the legislative branch of that same government has given it. In all countries other than our own the legislative interpretation is recognized as decisive.

61 Cr. 137; 2 L. ed. 60.

The general principle is that a law held void, because unconstitutional, is as though it had never been. It is declared never to have been a law, and hence that no legal rights can be claimed under it. If, however, by a later decision, the court reverses its former opinion, and upholds the law, it is considered as having been in force and valid from the time of its enactment. In practice, as a matter of justice and of expediency, these principles have at times been departed from, but in general the rule is as stated.?

The expediency of giving this power to the courts is of course, open to discussion. That it is a tremendous power cannot be questioned. As said by Bishop Hoadly years before our Constitution was adopted, “whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all intents and purposes, and not the person who first wrote or spoke them.” It would seem clear that by training, by tenure of office, and by the character of the functions which they perform, the judges of the Federal Supreme Court and of the highest courts of the States are less likely to be hurried on, under the pressure of passion or of temporary exigency, to such a violation of the spirit, or to such a strained construction of the language, of the Constitution as will deprive that instrument of its true restraining character. But, upon the other hand, there is the danger, which not a few persons think has in some instances become a reality, that the judges, not being in close touch with or responsible to public opinion, will assume an unnecessarily strict or biased attitude towards the constitutional powers of the legislature, and especially towards those relating to what is known as the police powers of the State. In general, however, it is to be said that the courts, have, by the rules which they have laid down for themselves with reference to the validity of legislative acts, kept their authority within just and expedient limits. These rules are considered in Chapter III.

7 Norton v. Shelby Co., 118 U. S. 425; 6 Sup. Ct. Rep. 1121; 30 L. ed. 178. But see Gelpcke v. Dubuque, 1 Wall. 175; 17 L. ed. 520; and exceptions coming under the doctrine of de facto officers and ·corporations acting under unconstitutional statutes.

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