repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

52. THE PROCESS AND EFFECT OF DECLARING LEGISLATIVE ACTS UNCONSTITUTIONAL.

The power of the courts to decide as to the validity of legislative acts is one of the distinctive features of American constitutional law. The principles which guide the courts in exercising this power and the effect of a decision adverse to the validity of a particular law are clearly stated by Judge Emlin McClain in the following selection:

It is to be observed that this function of the courts is not the primary or the principal purpose of their creation and recognition as a department of government. Courts are created primarily to decide legal controversies; but in deciding such controversies it is necessary for them to determine what is the law as applicable to the particular case, and as incidental to the exercise of this function they may have to decide whether a statute or an executive act relied upon by one party or the other is valid, or whether, on the other hand, it is invalid because in excess of the power conferred upon the department which has attempted to act, or is in violation of some constitutional provision or limitation. It is a function of the law-making power to determine prospectively what shall be the law, and to express that determination by adding to or modifying or repealing the existing law by statutes taking effect from the time of their enactment. The courts, on the other hand, decide cases submitted to them with reference to what the law was at the time the controversies to be determined arose, by which the rights of parties to such controversies are to be adjudged. Their principal concern is as to what is, or rather what has been, the law to the time of the decision, not what shall be the law for future cases.

It is true that, having decided what the law is, the court will be likely in future cases to adhere to the views expressed

in previous decisions, and the desirability of having the rules of law on which persons may act and rely stable and settled will incline the courts to adhere to their former decisions, which will be regarded as precedents in subsequent cases. But the act of the court in determining what the law is in a given case is not primarily for the purpose of ascertaining it for future cases, but in order that the case before it may be rightly decided. It is erroneous, therefore, to speak generally of the judicial department as having power to interpret or declare the law as though it were especially created for the purpose of interpreting the constitution and the acts of the other departments of the government in order that the people shall be advised as to what they mean. It is assumed rather that the constitution and the law, both written and unwritten, are known, and that persons whose controversies come before the courts have acted with reference to the law as it existed and are bound to knowledge thereof; and the courts, therefore, on that basis determine only retrospectively what law applies in the settlement of controversies which have already arisen. Nevertheless, as a result of such determination, persons may in the future be guided and greatly assisted in following the law, by having reference to what has already been decided in previous

cases.

The preceding considerations lead to some other important conclusions as to the proper province of the courts, in passing upon the constitutionality of statutes. First, it will always be borne in mind by a court that the legislative department, on whose authority the statute rests, is a coordinate branch with the judicial; that there is no superiority as between them; that each is vested with power and discretion within the scope prescribed for it by the constitution; and therefore that an act of the legislative department is entitled to every presumption of correctness, and that to question its validity is the exercise of a very delicate and extraordinary power, to be resorted to only in the last extremity and when the rights of the parties to the litigation

are found necessarily to depend upon its construction. The courts then, instead of being zealous to interpret and determine the validity of statutes with respect to their constitutionality, in order that the people may know and act accordingly, will discharge such duty with great reluctance and reserve, the importance of making the law clear for future cases being subordinate to that of leaving the legislative department free in the exercise of its constitutional prerogative of law making. Moreover, the courts will entertain every presumption in favor of the validity of a statute called in question, and declare it to be invalid on constitutional grounds only where it is plainly and clearly in conflict with the constitution. They will not pass upon such a question save in a case in which it is necessary to do so in order to adjudicate the real and substantial rights of the parties in that case; and they will avoid, if practicable, considering such a question except after full argument and a consultation in which all the judges of the court are present.

Second, a court will avoid, if possible, setting up its own judgment as against the judgment of a co-ordinate branch of the government as to matters which are by the constitution entrusted to the discretion of such co-ordinate branch. The diplomatic relations between this and foreign countries being exclusively within the control of the executive department, the determination by that department as to whether territory has been acquired from a foreign state so as to become a part of the United States will be conclusive on the courts, and they will not undertake to review the correctness or propriety of the determination. The legislative department having been vested with authority to levy taxes, the propriety of any particular tax as to its subject, amount, or the method of its collection; will not bé questioned by the judiciary; but on the other hand, as private property rights are involved in the exaction of a tax, the courts will determine whether such exaction is within the scope of the taxing power, and whether the property is

properly subject to taxation; and if a particular method of apportionment is directed by the constitution, the courts will say whether that method has been followed. Furthermore, as the two houses of Congress are made judges of the election and qualification of their respective members, and are authorized to prescribe their rules and procedure, and punish their members for disorderly behavior by expulsion, no court will attempt to review or revise the action of either house in this respect, even though the question to be determined may in its nature be judicial. For instance, if a member should be expelled, no court could pass on the question whether the expelled member was guilty of the acts charged as a ground of expulsion.

In other words, while the constitution is binding upon all branches of the government, the question whether it has been violated by the executive or legislative branch cannot be inquired into by the courts, except in a case of judicial cognizance, that is, a case coming within the jurisdiction which has been given to the courts by the constitution and the laws. It is to be assumed that the executive and legislative departments are as zealous in abiding by the constitution as are the courts, and that the requirements and limitations of the constitution will be carefully observed; and only when in the exercise of judicial power it becomes necessary to determine whether an executive or legislative act is valid will the courts enter into a consideration of the question whether the power granted in the constitution or the limitations imposed by it have been exceeded or infringed. Many questions of constitutional law, in the broad and proper sense of the term, can never come before the courts for final determination, because the action of the executive and legislative departments with reference thereto must, so far as any legal remedy is concerned, be conclusively presumed to be in accordance with the constitution. It is true that in Massachusetts and a few other states the constitution authorizes the judicial department to give advisory opinions to the legislative and executive departments on application, but advisory

opinions thus given have not the force of decisions and are not regarded as within the scope of judicial power.

The fact that the judicial department is limited to the determination of controversies properly arising in cases brought into the courts for adjudication, is to be carefully borne in mind in correctly understanding the result of a decision rendered by a court. Such a decision is conclusive as to the rights of the parties before the court, and also serves as a precedent which will have more or less weight in the determination of subsequent cases involving the same question. But the courts cannot repeal or annul a statute, nor dictate to the executive in any compulsory way what his action shall be. The effect of declaring, in a particular case, that a statute is unconstitutional is not to repeal the statute, but to determine in the case before the court that it will not be recognized as valid, and to furnish a precedent or authority for contending in similar cases where such a statute is brought in question, that it should not be recognized. The statute remains, nevertheless, on the statute books as an act of the legislative department, even though for the purpose for which it has been relied upon the court may have decided that it is not a part of the law of the land. The decision of the court is not that the statute shall thereafter be of no force and effect, but that it has never been a valid statute. While it may be proper that other departments of the government shall yield great deference to the conclusions of the court on such a question, there is no method of compelling them to do so, and they must still be allowed to exercise their own discretion in such matter, subject only to the presumption that if another case is presented to the judiciary department, involving the same question, the courts will adhere to the former decision.

ADDITIONAL READINGS

1-The Organization of the Courts of the United States, Baldwin, S. E., The American Judiciary, 137-51.