The courts do not sit primarily to decide questions of constitutionality. Their domain is law, not politics. Although the political importance of the doctrine we are now considering is very great, the doctrine is purely legal. A statute can be declared unconstitutional only by refusing to enforce it in a litigated case, or by refusing to recognize it as protecting an officer who attempts to enforce it. The act of the legislature, being in the opinion of the court in excess of its constitutional authority, is simply disregarded. The case before the court is decided, and the constitutional decision is found in the reasons assigned for the judgment.1 courts. There are cases, however, in which acts of Congress involving constitutional questions are not subject to review in the Such may arise under the provision of the constitution that the United States shall guarantee to every state in the Union a republican form of government. Questions arising under this section are purely political and wholly beyond the province of the judiciary.2 A political act cannot be restrained. by the judiciary even though it violates the constitution, or a treaty or law made in pursuance thereof.3 The levying of a protective tariff and the abuse of the power of taxation, are illustrations of political acts which are beyond the power of the courts.4 To avoid the uncertainty and inconvenience arising from the practice of permitting an unconstitutional enactment to stand on the statute books as valid until the question is raised in some particular case, various attempts have been made to require the courts or judges to act as general governmental counsel, giving to the executive and legislature in advance opinions upon the constitutionality of proposed measures; but it is now well settled that this would impose other than judi 1 For valuable discussions of the theory upon which the courts act, see Bryce, American Commonweath, I, pp. 246-7; Dicey, Law of the Constitution (3d ed.), p. 149; Lowell, Essays on Government, pp. 104, 119; Woolsey, Political Science, II, P. 333; Maine, Popular Government, pp. 223, 224. 2 Luther vs. Borden, 7 Howard (U. S.), 1. The Cherokee Nation vs. Georgia, 5 Peters (U. S.), I. 4 See Madison's Works, IV, 144. Soon after the establishment cial duties upon the judiciary. of the national government, Washington asked the opinion of the judges of the Supreme Court upon various questions arising out of the treaty with France.1 Having some doubts as to the course to be pursued, they asked for delay to consult with absent associates. To this the President assented. Marshall in his Life of Washington writes: About this time it is probable that the difficulties felt by the judges of the Supreme Court in expressing their sentiments on the points. referred to them were communicated to the executive. Considering themselves merely as constituting a tribunal for the decision of controversies brought before them in legal form, these gentlemen deemed it improper to enter the field of politics, by declaring their opinion on questions not growing out of the case before them. A few of the state constitutions require that the opinions of the judges be taken on some occasions by the legislature and the executive.2 Such opinions are generally held to be advisory and not binding upon the courts in subsequent causes.3 1 Jefferson's Works, IV, 22. 2 Massachusetts (pt. ii, ch. iii, sec. 2); New Hampshire (1784, pt. ii, title, judiciary power, sec. 74); Maine (art. vi, sec. 3); Rhode Island (art. x, sec. 3); Florida (1868, art. v, sec. 16); South Dakota (art. v, 13). The constitution of Colorado (amendment, 1886) provides that "the supreme court shall give its opinion upon important questions upon solemn occasions, when required by the governor, the senate or house of representatives; and all such opinions shall be published in connection with the reported decisions of the court." This is the only provision which calls for the opinion of the court. 3 In Taylor vs. Place, 4 R. I. 324, the court, in dealing with a question on which an opinion had been given, said: "This is the first time since the adoption of the constitution that this question has been brought judicially to the attention of this court. The advice or opinion given by the judges of this court, when requested, to the governor or to either house of the assembly, under the third section of the tenth article of the constitution, is not a decision of this court; and given as it must be without the aid which the court derives in adversary cases from able and experienced counsel, though it may afford much light from the reasoning or research displayed in it, can have no weight as a precedent." A contrary rule prevails in Maine (70 Me. 583; 1880) and in Colorado (In re Senate Resolution, etc., 21 Pac. Rep. 478). In the latter case, the chief justice, after referring to the fact that "it is the court and not the justices, which must answer," says that "these opinions have all the force and effect of judicial precedents." The general question is fully discussed, and the authorities reviewed and carefully analyzed by Prof. J. B. Thayer, in his pamphlet entitled, Memorandum on the Legal Effect of Opinions given by Judges (Boston, 1885). Courts do not exist for the purpose of watching over the general rights of citizens, nor are they instituted for the purpose of regulating and restraining the other co-ordinate departments of government. As against the legislature, constitutional rights. only will be protected by the courts. In each state there are two constitutions, one written, the other unwritten. The latter is the outcome of social and political forces in history. It is a political organism, the constitution of the people as distinguished from the constitution of their government. In the more common acceptation, however, a constitution is a "systematic description of such a growth in the shape of a formula addressed to the understanding."1 It is the written or secondary constitution which the courts guard. The oath of office does not bind a judge to protect and obey the primary, organic, unwritten constitution, wherein are found the general principles of justice and humanity not embodied in the written instrument. The protection of these fundamental principles has not been delegated, but is reserved to the people in their sovereign capacity. If either of the departments among which the delegated powers are distributed attempts to exceed its authority and violate fundamental principles, the remedy is in the hands of the people; and as no department will be presumed to violate these principles, no department will undertake to say that another has done so. The courts cannot act until a party has attempted to use the judiciary as an instrument for the enforcement of rights supposed to have been created or recognized by a statute, or for the defence of some constitutional right which would be violated by the enforcement of a statute. By the refusal to recognize or to enforce a law, it is annulled, and this decision, by virtue of the doctrine of precedent, is generally followed in similar cases in the future. Hence, it is useless to institute new cases and the law becomes a dead letter. This is the exercise of the ordinary judicial function of deciding between conflicting laws, and the legislature cannot, by a contrary conclusion, affect the decision. 1 Jameson, Constitutional Conventions (2d ed.), p. 67; Brownson, The American Republic, p. 218. As a rule, the judges have exercised this great power carefully and with due respect to the legislature. Some courts have gone so far as to adopt a rule that they will not hold a statute unconstitutional by a majority of a mere quorum, but will postpone the hearing until the wisdom of a full bench can be brought to bear upon the question.1 But this is a mere rule of propriety, not of constitutional obligation. It is a well established rule that the question of constitutionality will not be decided unless it is necessary to the determination of the action. To quote from the language of the supreme court of Indiana: While the courts cannot shun the discussion of constitutional questions when fairly presented, they will not go out of their way to find such topics. They will not seek to draw in such matters collaterally, nor on trivial occasions. It is both more proper and more respectful to a co-ordinate department, to discuss constitutional questions only when that is the very lis mota. Thus presented and determined, the decision. carries a weight with it to which no extra-judicial question is entitled. If any other question is presented by the record upon which the judgment can be rested, the constitutional question becomes immaterial. Another important limitation upon the action of the courts is the presumption that a statute is valid until it is complained of by some one whose rights are invaded. A party whose rights are not affected by the statute cannot be heard against its constitutionality. The statute is also given the benefit of all reasonable doubt. When the courts are called upon to consider the validity of a statute, they will, said Chief Justice Shaw, approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention 2 Hoover vs. Wood, 9 Ind. 287. 1 Briscoe vs. Bank, 8 Peters (U. S.), 118. 3 In Wellington, Petitioner, 16 Pick. (Mass.), 87, 96, the court says: "Prima facie, and on the face of the act itself, nothing will generally appear to show that the act is not valid; and it is only when some person attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void as to him, his property or his rights, that the objection of unconstitutionality can be presented and sustained. Respect for the legislature, therefore, concurs with well established principles of law in the conclusion that such an act is not void, but voidable only; and it follows as a legal inference from this proposition that this ground of avoidance can be taken can throw any new light on the subject; and never declare a statute void, unless the nullity and invalidity of an act are placed in their judgment beyond reasonable doubt.' The legislature must be presumed to have acted with integrity and with a desire to keep within the bounds of the constitution, and so acting, deliberately to have solved their own doubts in favor of the constitutionality of the act. Whatever weight the courts are justified in giving to the fact that a statute has received the approval of the legislative and executive departments, is due to this presumption, that they have acted in good faith and have actually considered the question with care. This weight may be overbalanced only by the duty resting upon the courts to give the instrument from which they derive their powers the benefit of the doubt, when a question of conflict occurs.3 A statute must always be construed according to the legislative intent. The presumption is that the law was intended to take effect, and the court must, if possible, so construe it as to give it effect. The motives of the legislature cannot be inquired into by the courts, even where fraud is alleged. The presumption that a co-ordinate department has acted in good faith is conclusive. "We are not at liberty," said Chief Justice Chase, "to inquire into the motives of the legislature. We can only examine into its power under the constitution." Where the power exists, the courts are not at liberty to inquire into the proper exercise of that power. They cannot usurp the inquisitorial office of investigating the good faith of the legislature in the discharge of its duties. The responsibility for such. discharge is not to the courts, but to the people, from whom the legislative powers are derived. That a statute is unjust, oppressive, or in violation of some supposed natural, social or political right not protected by the written constitution, is not sufficient ground for holding it advantage of by those only who have a right to question the validity of the act, and not by strangers." 1 Wellington, Petitioner, 16 Pick. 95. Cf. the Sinking Fund Cases, 99 U. S. 700. 2 United States vs. Harris, 106 U. S. 635, Woods, J. * See Osburn vs. Staley, 5 W. Va. 85. |