THE INTERPRETATION AND ENFORCEMENT OF CONSTITUTIONAL LIMITATIONS
NECESSARILY A FUNCTION OF THE JUDICIARY
Under our federal and state form of government the question naturally
arises where should be lodged the power to determine whether in a
given instance either department has encroached on the proper field of
any other department, and whether either department has encroached on
the constitutional rights of the individual citizen. It should be
evident that neither the executive nor the legislative department is a
fit depositary of such power. Both these, from the nature of their
powers, are aggressive. They act of their own volition. They initiate
proceedings and measures to carry out policies. In their activities
they are apt, consciously or unconsciously, to overstep the boundary
lines between the departments and also the limits set for the
protection of the citizen against such activities. Again, questions
may and often do arise between the government and the individual
citizen that are not political questions, but are questions of private
right, the right of the individual against the government. The
disputants are the individual citizen or group of citizens on the one
hand, and the government on the other whether that government be a
monarchy, a republican or representative government, or a pure
democracy. In such case it would seem clear that one party should not
have the power to decide the question. It is an axiom that neither
party to a controversy should be the judge in the matter. The
legislature that enacts a statute claimed by a citizen to be beyond
its powers and to deprive him of some right guaranteed to him by the
constitution, should not be the judge of the question any more than
should the complaining citizen. So the executive should not be the
judge where a citizen claims it has exceeded its powers to the
detriment of his constitutional or statutory rights. Even if a statute
be enacted or ratified by the people directly, under the modern
initiative and referendum, and a citizen claims that the statute
deprives him of some right guaranteed by the constitution, the people
should not be the judge; much less should a majority. If the
individual is left to be the judge of his constitutional or legal
right as against the government, the result would be anarchy. If the
government, even the most popular government, is to be the judge, the
result would often be tyranny. There would be occasions, as there have
been, when an excited people or majority would tyrannize over the
individual, indeed over the minority. To secure alike the people
against anarchy and the individual against tyranny, power must
be vested in some impartial, independent arbiter to determine
authoritatively and finally the relative rights and duties of each
under the constitution.
The proper department to be made the depositary of this important
power would seem to be the judicial. That department does not
initiate, has no policies, does not act of its own volition, but acts
only when its action is regularly invoked in some controversy and then
only to end that controversy. It may seem unnecessary even to state,
much less defend, the proposition, but as its logical result is that
the judiciary when invoked by the individual must refuse effect, so
far as he is concerned, to a legislative act which deprives him of
some right guaranteed by the constitution, and must thus disappoint
those who procured the passage of the act, the proposition has been,
is still being, denied. The action of the courts in exercising that
power has been and is even now denounced as usurpation. Though the
proposition is now long established, these attacks justify some
repetition of the argument in its support. The logic of Chief Justice
Marshall in _Marbury_ v. _Madison_, 1 _Cranch_ 137 _at p. 176_, seems
to me irresistible and worthy of frequent quotation despite the
attacks upon it. The Chief Justice said: "This original and supreme
will (of a people) organizes the government and assigns to different
departments their respective powers. It may either stop here,
or establish certain limits not to be transcended by those
departments.... The government of the United States is of the latter
description. The powers of the legislature are defined and limited;
and that those limits may not be mistaken or forgotten, the
Constitution is written. To what purpose are powers limited and to
what purpose is that limitation committed to writing if these limits
may at any time be passed by those intended to be restrained? The
distinction between a government with limited and unlimited powers is
abolished if those limits do not confine the persons on whom they are
imposed, and if acts prohibited and acts allowed are of equal
obligation. It is a proposition too plain to be contested, either that
the Constitution controls any legislative act repugnant to it, or that
the legislature may alter the Constitution by an ordinary act.
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....
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."
In 1825 that eminent jurist, Chief Justice Gibson of Pennsylvania, in
a dissenting opinion in _Eakin_ v. _Raub_, 12 _S. & R._ 330, insisted
in an able, elaborate, and exhaustive argument that while the
judiciary was bound to refuse effect to a state statute in conflict
with the Federal Constitution, it was bound to give it effect if
repugnant only to the state constitution. He frankly admitted the
logical conclusion that in such case the only remedy the citizen had
to enforce his constitutional rights was that of revolution. When,
however, his opinion in _Eakin_ v. _Raub_ was cited in 1845 in
argument in _Norris_ v. _Clymer_, 2 _Pa. St._ 277, he said he had
changed his opinion on that question, partly "from experience of
the necessity of the case." In the later case, _De Chastellux_ v.
_Fairchild_, 15 _Pa. St._ 18, he was emphatic in his declaration of
the power and duty of the court to refuse effect to a state statute in
conflict with the state constitution. In delivering the opinion of the
court he used this vigorous language: "It is idle to say the authority
of each branch (of the government) is defined and limited in the
constitution, if there be not an independent power able and willing to
enforce the limitations.... From its very position it is apparent that
the conservative power is lodged with the judiciary, which in the
exercise of its undoubted right is bound to meet every emergency."
The results of the contrary doctrine are well stated by the same court
in _Perkins_ v. _Philadelphia_, 156 _Pa. St._ 554. "If laws in
conflict with the constitution be passed by the legislature, approved
by the governor and sustained by the court, that is revolution. It is
no less revolution because accomplished without great violence. It
matters little to the house owner whether the structure built to
shelter him be blown up by dynamite, or the foundation be pried out
stone by stone with a crowbar. In either case he is houseless."
One desirable result of this doctrine that the courts when regularly
invoked can and should refuse effect to an unconstitutional statute is
that it ensures to every person, not in the military or naval service,
the right to test in the judicial courts the authority of any official
to interfere with his person, liberty, or property, whatever
authority, executive or legislative, the official may plead. In France
and other countries of continental Europe questions of the existence
and extent of the authority of an official in his action against
individuals are triable, at least at the pleasure of the executive,
only in administrative tribunals, that is, courts pertaining to the
executive department and instituted to assist that department in the
performance of its functions. The aggrieved individual can only apply
to the superiors of the official complained of. Such tribunals
naturally incline to uphold the authority claimed, and indeed can
lawfully allow the plea that the act complained of was ordered in
pursuance of some executive policy. A recent instance is that unhappy
affair at Zabern in Alsace where an army officer in time of peace
wantonly struck and wounded a peaceful crippled citizen with his
sabre. The victim could only appeal to the officer's military
superiors, who acquitted the offender on the ground that the dignity
of the military must be protected. In the United Kingdom, while at
present, as for centuries, the individual can appeal to the judicial
courts against officials acting under any executive or legislative
orders, Parliament, and even a majority of the House of Commons, can
at any time deprive him of that right. In this country the executive
and legislative departments combined have no such power. So long as
our present system is maintained, questions between government
officials and individuals must remain cognizable by the judicial
courts where the private citizen is on a par with the highest
official, and the single individual is on a par with the government
itself. In contrast to the Zabern affair we may note that the striking
copper miners of Michigan were not obliged to apply to higher military
officials for redress of wrongs claimed to have been inflicted upon
them by the military. They were free to apply, and did apply, to
tribunals outside of and independent of the executive. They and such
as they should be the most unwilling to degrade the courts or lessen
their power. A similar instance is that of the striking miners in
Colorado who so loudly complained of the acts of the militia. They
were not obliged to appeal to military or executive officers for
redress. The Judicial Courts were as open to them as to any others and
there they would be upon an equality with the officials.