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change of rulers. It removes the principal, indeed, almost the only guard against the unconstitutional, dangerous, and oppressive acts of the legislature and the executive, from which departments alone such oppressive acts can be exercised, and by excluding the enterposition of a judiciary power, be forced upon the people.
. We have a written constitution, and that constitution is a rule of action to the citizens. The powers granted by the constitution, are assigned to different departments of the government, the legislative, the executive, and the judicial. To give effect to those powers, the action of the legislative department is first necessary. On that department it devolves by their laws to give energy to those powers, by directing how, in what manner, and upon what subjects the powers shall be exercised to attain the end intended by the constitution. In the exercise of these—their legislative functions—the constitution is their law and their guide. It is the superior law imperiously binding on the government, the states, and the people. Every act of congress is to be judged by this superior law, the constitution ; if not supported, if not warranted by the law, it is illegitimate, it is a mere nullity.
To the executive, the President of the United States, besides certain other powers and duties not necessary here to be specified, is committed the authority, as it is made his duty, to take care that the laws be faithfully executed, and in the exercise of this authority, the acts of the President depend for their ultimate jurisdiction on the rule of the same supreme law, the constitution of the United States.
The judicial department has no concern in originating, or forming the laws, or any of the measures committed to the other departments. The duty assigned to that department is to administer justice by deciding in all cases regularly brought before them, according to the laws of the land, of which the constitution is made supreme. The constitution does not undertake expressly to point out the relation subsisting between the departments, or to what extent the act of one shall effect any act of the other; but has left that generally to be determined by inference from a sound construction of the instrument agreeable to the nature of the subject.
Now, says Mr. Jefferson,“ my opinion is, that each department is truly independent of the other, and has a right to decide for itself, what is the meaning of the constitution in cases submitted to its action, especially where it is to act ultimately and without appeal.” Certainly in all cases submitted without appeal. But the general proposition embraces all cases whatever submitted to the action of the department, whether ultimately and without appeal or not; although the latter are considered as more evidently so to the common understanding. There are two classes of cases presented; one, of cases submitted to the ultimate decision of the department without appeal; the other, of cases submitted to the action of the department in which there may be an appeal or ulterior decision. We will first enquire what are the cases, what the actions thus submitted without appeal, and to what extent. These are cases of discretion, and of discretion only. A discretion is permitted to the legislative and to the executive department. But this extends only to the mode, manner, and occasion, to the expediency and policy of a law or measure proposed ; and on this discretion we find certain limitations imposed, as on the power of pardoning committed to the discretion of the President, that it shall not extend to a conviction on impeachment, and the mode of taxation by the legislature, to prevent an inequality of burdens. No discretion is permitted in any case to dispense with any rule of the constitution positive or negative, or with any modification or limititation of powers. I come now to the other class of cases, in which, as I contend, there is allowed an appeal, that there is provided, by the constitution, a power and right of ulterior decision. This is denied by the terms of the general proposition, “that each department is truly independent of the other, and has a right to decide for its: If, what is the meaning of the constitution in all cases submitted to its action," although in the concluding sentence it seems to be strongly implied that such appeal is allowed, with certain special exceptions.
By an appeal, in this case, is to be understood the right of one department subsequently to decide, with effect, on the constitutionality of the act of another department, or to decide what is the true meaning of the constitution in the case. It is not to be understood of a formal and technical appeal—the removal of a cause from an inferior to a superior court by writ of error or in any other mode. If any other department has, agreeable to the provision of the constitution, the power and right to decide on the constitutionality of the act whether it be validwithin the meaning of that sacred instrument, the supreme lawto all the departments; and if in their opinion it be not valid within that meaning, to pronounce it a nullity, unconstitutional and void ; then it is a case in which there is an appeal in the sense intended.
Let us take a strong case. Suppose congress, the legislative department with the approbation of the President, the executive, to pass an act suspending the writ of habeas corpus, in a time of profound peace.
A person committed by process and under the government, applies to the Supreme Court for a writ of habeas corpus, on a proper case laid before the court.
The suspending act is offered as an objection to the granting of the writ, or to the liberation of the prisoner. Nevertheless, it being known to the court that no case had happened which, agreeable to the constitution could authorze a suspension of the writ, it would be not only the right, but the imperious duty of the court to pronounce judicially this act of the legislature to be unconstitutional and void. Nor is any executive act, in a similar case exempt from judicial cognizance. The court cannot evoke the case from the legislature or the executive.
They can decide upon it when, and only when it becomes a material point in a cause properly before them.
On an examination of the constitution, it will be found, that the judicial is the ultimate department, not merely in the arrangement there made, but in point of action from the nature of the powers and duties assigned to it. The judges,—the functionaries of that department, have no concurrent voice, or even advisary, in the acts or measures adopted by the other departments. None of the acts of congress, or measures of the executive, in any way come before the judiciary, until they have received the sanction of the department to which they belong, and have been put in exercise. The acts may thereafter in the course of administration, come before the judiciary,—the court, for decision. In all cases of a prosecution,
civil or criminal, for the infraction of a law, or unlawful opposition, the party prosecuted has a right, as well as any one who shall have commenced an action for an injury sustained in the execution of the law, to impeach its constitutional validity, and to claim the decision of the judges on that point. In making this decision the very nature of the duty forbids that the judges should be biassed by the previous decision of the legislature supposed to have been made in passing or determining on the act. They are bound by the rule of the constitution,—the supreme law only. But whether they decide for, or against its validity, that decision does not affect the constitutionality, or unconstitutionality of the act. It is an authoritative declaration only, for the government of themselves and others, of a fact already existing. This construction of the constitution furnishes the only efficient check on those departments of the government which are in a situation to usurp and exercise dangerous powers; while it serves to give a uniform and consistent direction to the acts of the whole, bringing all to the test of the constitution,—the true standard of political action, and the value of the test depends wholly on a steady and uniform interpretation.
In every free government it is an object, the importance of which can never be too highly appreciated, to make effectual provision for a uniform interpretation of all its laws. As this object can never be effected, if the interpretation be submitted to different departments independent of each other, and as is almost inevitably the case, actuated by different views, interests, and prejudices, the judicial department has been established by our constitution, and in that department one Court Supreme over the other, whose decisions are final, furnishing a rule of interpretation in analagous cases binding on all inferior courts, and a rule of action as well to the government and its functionaries, as to the people. Where, as with us, there is a written constitution which is the supreme law of the land, and, emphatically, the supreme law of the government, and of all its departments, no less in the administration of justice, than in the enacting and execution of laws, the judges who are under the obligation of an oath to support the constitution, are bound to administer justice, according to that supreme law, and by that law, as a rule not to be dispensed with, to interpret all subordinate laws, the acts of the legislature, and in the application of this rule, they must be governed by their own best judgment, whether in testing the validity of the subordinate laws, or directing its interpretation, it is rio less necessary that there should be a fixed, steady, and uniform interpretation of the constitution, than of the subordinate laws, and that the binding effect should be no less extensive.
If all admit Mr. Jefferson's opinion to be correct, that each department is so independent of the others that it has a right to decide for itself what is the meaning of the constitution, as respects the extent and limits of its powers, in all cases submitted to its action, there can never, as it respects the powers of governnent, be established any uniform construction, any steady and uniform interpretation of the constitution; consequently, there will rarely be found a corsent of action between the departments, which, although dangerous in cases of conspiracy, is absolutely necessary to any beneficial, practical, and constitutional administration of the government. For from their different construction of their several powers, they will often be found at variance not unfrequently, in irreconcilable opposition, each in duty bound, according to its own construction, to defeat the acts of the other. Of this, Mr. Jefferson has himself, perhaps unwarily, furnished a very notable instance, in the passages above recited from his correspondence.
Adopting Mr. Jefferson's construction, of what avail is a written constitution ? Instead of being a rule of action to the government,--the supreme law, it has hardly the force of an admonition. To give to each department the sole right to judge of its own powers, to whatever extent, is to that extent, to use the emphatic language of Mr. Jefferson on another occasion, to make its discretion, and not the constitution, the measure of its powers. It is very obvious from a perusal of the constitution, that, as before observed, every dangerous abuse of power, every oppressive act of the government, must originate with the legislative or the executive department, and must be matured and carried into 'effect by one or both of those departments; none can originate with thc judiciary. The judges may'from ignorance or corrup