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England, though it has a constitution-an unwritten onehas comparatively little constitutional law. A law has been defined as “any rule which will be enforced by the courts.” The courts of England have enforced its constitution by denying the authority of officials and the validity of their acts because in violation of its principles. But no court can declare an act of Parliament void. Parliament, according to Blackstone, “can do anything that is not naturally impossible.” The whole power of sovereignty is vested in it. What it enacts cannot but be law. As to legislation, therefore, the force of the English Constitution is purely moral, acting upon the members of Parliament through tradition and precedent. “It is in an unwritten code, in maxims handed down traditionally, which have stood the test of experience, that we must seek the strength, the equipoise and the stability of the English government.” (Hare on the Constitution) It is a code and not a law that keeps Parliament within bounds. A violation of this code cannot be dealt with by the courts. Public opinion is its only sanction.
The Constitution of the United States, on the other hand -like the constitutions of the several States—is a law. Because it is a law, the courts must recognize and apply it. By its own terms, it is made the supreme law of the land. And so, whatever of legislation conflicts with it, whether of the States or of Congress, is void; and the courts in proper case must so declare. The Congress of the United States is not vested, like the Parliament of England, with the full power of sovereignty. Its power is legally limited by the Constitution under which it exists. It represents and speaks for the sovereign people only within the limits and under the restrictions there stated. If it attempts to legislate outside of such limits or contrary to such restrictions, its acts are so far void ; they are not-although they appear to be—the acts of the sovereign. It needs no judgment of any court to annul them. They are, as matter of law, void from the beginning by force of the Constitution itself, or rather because the Constitution has never breathed into them the breath of life.
But, in the language of Hamilton, “laws are a dead letter
without courts to expound and define their true meaning and operation." The courts do not set aside unconstitutional laws, but they authoritatively declare the unconstitutionality which in itself makes them void. And so the courts enforce the Constitution. They give it sanction, and secure that its voice shall be heard.
In whatever court the constitutionality of a Federal or State statute comes in question, the rule of action is the same. But the framers of the Constitution saw that there was need of a court, created by it and which would therefore presumably interpret it in accordance with its spirit, to be the court of last resort upon constitutional questions. And so they created the Supreme Court, and empowered it to say the final word as “the living voice of the Constitution."
In this country then, the Constitution is a law and the supreme law; and we rely for its construction and enforcement upon the courts, and in the last resort upon the Supreme Court of the United States; while in England, so far as legislation is concerned, the constitution is not a law, has only a moral force, and has no sanction but public opinion.
We read with pleasure the praises of our constitutional system which have come from our own wise men and those of other lands. But we may as well at the same time acknowledge that English history, down to the present day, proves that free government, government proceeding with due regard for the rights of the people, exists there under a system in which there is only an unwritten constitution having, as to legislative acts, only moral force.
“There is no assembly,” says Mr. Hare, “where a respect for vested rights and personal liberty is more deeply rooted or that is less inclined to go beyond just bounds to the injury of either. When, on full investigation and debate, it appears that a measure cannot be adopted consistently with the principles of the Constitution, the argument is as conclusive as if the measure were one that Parliament could not adopt."
In the older nation of Anglo-Saxon origin, the moral force of an unwritten constitution has been enough to secure per
sonal liberty and personal rights. Have we no need of the play of the like moral force in our system? Is there not a field in this country, within the scope of the constitution but beyond the reach of constitutional law, in which our Constitution, although written, has in fact only a moral force?
Acts of Congress which are unconstitutional are undoubtedly, as matter of law, void from the beginning. But, practically, such acts have the force of law, more or less completely according to the degree of doubt as to their validity, until the courts have declared them void ; in most cases, until the Supreme Court of the United States has so declared. The acts of Congress making United States notes legal tender were passed in 1862 and 1863. Not until 1870 did the Supreme Court, in Hepburn vs. Griswold, declare them void as applied to past contracts. For seven years or more these provisions stood as valid. Innumerable transactions were affected by them. Although the Court held that there had been no law compelling the acceptance of such notes in payment of prior debts, yet countless debts, aggregating a tremendous amount, had been so discharged under compulsion. If that decision had stood, only in exceptional cases could redress have been had for losses caused by these acts, compelling an obedience to which, as then decided, they were not entitled. The fact that the Supreme Court later changed its view and decided in Knox vs. Lee that these provisions were valid, does not affect the case for purposes of illustration.
The question of the validity of the Income Tax Law, for peculiar reasons, was brought before the Supreme Court and there argued and decided with very unusual quickness. And yet that law, now decided to be void, had practical and important effect, as though valid, for a very considerable time.
So true is it that unconstitutional acts have practical effect as law until judicially declared void, that it is a very common notion that it is the function of the courts to annul such acts and that they are law until so annulled. Even a United States Senator of long experience is reported lately as saying: “ The Constitution provides the manner in which
a law should be enacted. If a bill is passed by a majority of a quorum of both Houses of Congress and signed by the President, it is a law. ..... That law commands the obedi. ence of every person until it has been set aside by decree of the Supreme Court upon the ground that it is unconstitutional." The Constitution alone can give to an act of Congress the force of a command. An act intended to control the President—and the Senator spoke in reference to such an actmay have no effect whatever, if unconstitutional, save as matter of opinion to be considered by him in determining his course.
But as a rule an unconstitutional act has the practical effect of a law and compels obedience, more or less, so long as there is any doubt whether it is constitutional or not; that is, in most cases until its unconstitutionality has been declared by the Supreme Court. It is hazardous for the individual to assume to solve the doubt and act accordingly. And if he is willing to do so, he may be vastly affected because others either take a different view of the question or, because of the doubt, treat the act as valid for the time.
Constitutional law cannot prevent Congress or a State legislature from passing unconstitutional acts, which will practically operate as though valid to a large extent and for considerable time. Only a controlling regard for the principles and purposes of the Constitution on the part of the legislators and a conscientious discharge of their duty to observe its limitations, can do this. In other words, to this extent our only reliance is in the same moral force which in England keeps Parliament within bounds.
Violations of ordinary laws are prevented by the mere fact that the courts are open, ready to inflict punishment upon the violators or compel them to make redress. There is no such deterrent force to prevent legislators from voting for acts which are unconstitutional. They cannot be punished, and no one can require redress from them in the courts, if they do so-even if they do so deliberately and knowingly. There can be no doubt of the duty of legislators to vote against acts which they believe to be unconstitutional. But violations of this duty are out of the reach of constitutional law.
The Constitution speaks in general terms; powers of legislation are given in few words. These powers should be used only in accordance with the general spirit of the instrument; and yet they may be used for unconstitutional purposes. The courts have decided that they cannot question the motives of Congress. If, for example, an act which is in form a revenue act, is passed solely for protection, the question of the constitutionality of the purpose cannot be passed upon by the courts. The purposes of Congress can be kept in conformity with the spirit of the Constitution only by moral force ; Constitutional law is of no avail to this end.
Fidelity to the Constitution on the part of members of Congress was manifestly an essential part of the scheme of constitutional government when adopted. It was intended that every vote in favor of the passage of an act should imply a deliberate judgment that it was within the power of Congress to so enact. This has been recognized and has been made the basis of a rule of decision in the courts, which in itself limits the operation of constitutional law. In Knox v. Lee, Mr. Justice Strong says: “A decent respect for a co-ordinate branch of the government demands that the judiciary should presume, until the contrary is clearly shown, that there has been no transgression of power by Congress—all the members of which act under the obligation of an oath of fidelity to the Constitution.” This rule was not then laid down for the first time. It had been fol. lowed from the beginning, and with manifest wisdom. Whatever Congress, the members considering the limitations upon its powers and voting accordingly, solemnly puts forth as law, should not be held as void by the courts, unless it is clearly unconstitutional. But if it has come to be true that the enactment of a law does not mean that in the opinion of the majority in each House it is warranted by the Constitution, but only that it should be passed as law and its validity left for the courts to decide, what ground is there for the presumption upon which the rule is founded ? Shall the rule of decision be changed, or shall our legislators return to the practice of fidelity to the Constitution ?
Observe our legislators in Congress-and the same thing may be seen in the State legislatures. Is there the same