the mails, the court said: "If the inhabitants of a single State or a great body of them should combine to obstruct interstate commerce or the transportation of the mails, prosecution of such offenses had in such a community would be doomed in advance to failure. And if the certainty of such failure was known and the National Government had no other way to enforce the freedom of interstate commerce or the transportation of the mails than by prosecution and punishment for interference therewith, the whole interests of the Nation in these respects would be at the absolute mercy of a portion of the inhabitants of a single State. But there is no such incompetency in the National Government. The entire strength of the Nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care. The strong arm of the National Government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the Nation and all its militia are at the service of the Nation to compel obedience to its laws."

CHAPTER III

PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION-CIRCUMSTANCES UNDER WHICH THE COURTS WILL HOLD AN

ACT OF CONGRESS VOID

Rules governing constitutionality of laws

Because an act of Congress is the declaration of a coordinate branch of the National Government, the courts have established for themselves certain more or less definite rules governing the conditions under which they will undertake to pass upon the constitutionality of Federal statutes. These rules are self-established, under a sense of propriety and expediency, and are not created by any constitutional necessity.

Courts of first instance will not hold an act unconstitutional except in clear cases, but will leave this to the final judgment of the higher courts. Inferior courts hold themselves bound by the prior decisions of superior courts as to the validity of an act, even though new reasons, pro or contra, are raised. The presumption is that all possible arguments were in fact considered by the superior courts. The Supreme Court has held that, ordinarily, it will not hold a law void except by a majority of the full bench.1

The courts will not pass upon the constitutionality of a law except in suits duly brought before them at the instance of parties whose material interests are involved.2

1 New York v. Miln, 8 Pet. 120; 8 L. ed. 888.

2 For a recent review of the doctrine see David Muskrat v. U. S., 219 U. S. 348; 31 Sup. Ct. Rep. 250; 55 L. ed. 246. The force of advisory opinions is discussed in Thayer's Cases on Constitutional Law, 175,

The Supreme Court will not pass adversely upon the validity of an act of Congress unless it is absolutely necessary for it to do so in order to decide the question at issue.3

When it is possible to do so without doing too great violence to the words actually used, the language of a statute will be so restricted as to render the measure constitutional. For the court will always presume that the legislature did not intend to exceed its constitutional powers. Where, however, the scope of the law is plainly expressed, and as such is unconstitutional, the court will not resort to a strained or arbitrary interpretation to bring the law within constitutional limits.5

4

The court will not permit the unconstitutionality of a particular provision of a law to invalidate the entire law if it is possible to separate the invalid provision from the other provisions without destroying or impairing their efficiency to attain the results evidently intended by the legislature that enacted them. Even when thus separable, however, the court will not hold the remainder of the law valid if there is a doubt whether, the realization of the whole of its will being rendered impossible, the legislature would have desired the execution of a part only.6

With the motives of the legislators the courts will not

3 But see Marbury v. Madison, 1 Cr. 137; 2 L. ed. 60, and Dred Scott v. Sandford, 19 How. 393; 15 L. ed. 691.

4 Knights Templar Indemnity Co. v. Jarman, 187 U. S. 197; 23 Sup. Ct. Rep. 108; 47 L. ed. 139; U. S. v. D. & H. Ry. Co., 213 U. S. 366; 29 Sup. Ct. Rep. 527; 53 L. ed. 836.

5 Howard v. Ill. Cen. R. R. Co., 207 U. S. 463; 28 Sup. Ct. Rep. 141; 52 L. ed. 297; James v. Bowman, 190 U. S. 127; 23 Sup. Ct. Rep. 678; 47 L. ed. 979.

But see U. S. v. Reese, 92 U. S. 214; 23 L. ed. 563. See also Columbia Law Review, Feb., 1911, article "Partial Unconstitutionality with Special Reference to the Corporation Tax," by Alfred Hayes, Jr.

concern themselves. "The judiciary can only inquire whether the means devised in the execution of a power granted are forbidden by the Constitution. It cannot go beyond that inquiry without intrenching upon the domain of another department of government. That it may not do with safety to our institutions." 7

The power of Congress to legislate being conceded, the wisdom or expediency of the manner in which the power is exercised is held to be beyond judicial criticism or control.8

Finally, the courts are guided in their judgments by the rule that every reasonable presumption shall be in favor of the validity of a questioned legislative act. As the Supreme Court have said in an important case: "The declaration [that an act of Congress is void] should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute and this continues until the contrary is shown beyond a rational doubt." 9

The rule of construction that has last been stated has especial application to acts of Congress. When the con

7 Interstate Commerce Commission v. Brimson, 154 U. S. 447; 14 Sup. Ct. Rep. 1125; 38 L. ed. 1047; Northern Securities Co. v. U. S., 193 U. S. 197; 24 Sup. Ct. Rep. 436; 48 L. ed. 679; McCray v. U. S., 195 U. S. 27; 24 Sup. Ct. Rep. 769; 49 L. ed. 78; Ex parte McCardle, 7 Wall. 506; 19 L. ed. 264.

8 Treat v. White, 181 U. S. 264; 21 Sup. Ct. Rep. 611; 45 L. ed. 853; Patton v. Brady, 184 U. S. 608; 22 Sup. Ct. Rep. 493; 46 L. ed. 713.

9 Knox v. Lee, 12 Wall. 457; 20 L. ed. 287. This doctrine has been repeatedly declared. Whether it has always been followed there is room for doubt. For an especially acute discussion of this principle of construction see Thayer, Origin and Scope of the American Doctrine of Constitutional Law (published originally in Harvard Law Review, republished in the volume entitled Legal Essays, 1908). See also Political Science Quarterly, XXIV, 193, article "Growth of Judicial Power," by W. F. Dodd.

stitutionality of a State law is involved, the principle is not always applicable. If the question at issue is as to whether a given power resides in the Federal Government or in the States, the fact that a State legislature in its enactment has asserted that it is vested in the States, raises no presumption in favor of the validity of this claim. The Supreme Court in passing finally upon this point is not called upon to review the act of a co-ordinate department, but has to decide between the conflicting claims of two governments, and, quite properly, feels itself at liberty to decide the point as an original proposition; namely, upon the basis of its own judgment as to what is the most reasonable construction of the constitutional provisions involved.

If, however, the State law, whose constitutionality is questioned, is with reference to a matter admittedly within the province of the States, and the question is simply whether the power has been properly exercised, there is held to be a strong presumption that the act is constitutional. Thus, for example, if it be a question whether the States have a power to regulate interstate commerce, or to tax a national bank, or to naturalize aliens, or enact bankruptcy laws, there is no presumption in favor of the constitutionality of acts in which the State power is asserted. If, however, it is a question, for example, whether the police powers, admittedly belonging to the States, have been constitutionally exercised, the presumption is that they have been so exercised.

When the Federal Supreme Court is called upon to consider the constitutionality of a State law as determined by its conformity with the Constitution of the State, the State Constitution is construed as having for its general purpose the placing of limitations upon the powers of the legislature; whereas, of course, the Federal