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Unconstitutionality of Acts.

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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 con

stitutional 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 (Opinion of the Justices.)

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.

Although the power of the courts to declare legislative acts unconstitutional has been firmly established for more than a century and has been acted upon in numberless cases in every state of the Union, as well as in the Supreme Court of the United States, there is still a popular tendency to call in question the propriety of its exercise, especially when the decision seems to run counter to public opinion in favor of the legislation which is thus annulled; hence, a further discussion of the development of the doctrine may be interesting. In some early cases in the English courts it was suggested rather than decided that an act of Parliament might be so unreasonable and unjust that the courts would refuse to enforce it. But these suggestions were not followed by the English courts to the extent of establishing any rule by which they would be authorized to question the validity of an act of Parliament on such ground. On the other hand, it has become firmly established as a principle of the constitutional law of Great Britain that the courts cannot exercise that power. The courts of Great Britain did, however, exercise the power of declaring invalid acts of colonial legislative bodies, on the ground that they were in excess of the power conferred by their colonial charters, and out of this exercise of power no doubt arose the notion that the acts of legislative bodies having a delegated and limited authority could be held to be invalid in the courts. Before the adoption of the federal constitution such authority had been exercised in a few cases by the courts in some of the states. But in the case of Marbury v. Madison, in the Supreme Court of the United States (1803), Chief Justice Marshall delivered an opinion on the question which has since been almost uniformly followed in judicial decisions in the federal and state courts, and which

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Unconstitutionality of Acts.

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practically has set it at rest. The point decided in that case was that an act of Congress by which it was attempted to give jurisdiction to the Supreme Court of the United States over a class of cases not placed within its jurisdiction by the language of the constitution, was invalid. The reasoning sustains fully the authority of a court to inquire into the question whether a legislative act is within the scope of the power conferred upon the legislature or in violation of restrictions imposed upon it, and to declare such act invalid and inoperative if it be found to be in excess of the power granted or in violation of the limitations imposed. The soundness of this decision was not, however, at once universally recognized as applied to the state courts; and in at least one state an attempt was made to impeach judges for declaring legislative acts to be unconstitutional. But the reasoning of Chief Justice Marshall, based on the nature of our federal and state governments as exercising a delegated authority under their respective constitutions, and the practical necessity of some determination by a duly constituted authority of the scope of governmental power, have led to the universal acceptance by the courts of this country of his conclusions, and a popular acquiescence in them as embodying a sound exposition of a fundamental principle of our constitutional law.

CHAPTER II.

ADOPTION AND AMENDMENT OF CONSTITUTIONS.

8. References.

"

J. Story, Constitution, §§ 198-271, 1826-1831; T. M. Cooley, Constitutional Limitations, ch. iii; G. T. Curtis, Constitutional History, chs. i-xv; H. Von Holst, Constitutional History of the United States, ch. i; J. A. Jameson, Constitutional Conventions; J. I. C. Hare, Constitutional Law, chs. iv-vii; J. N. Pomeroy, Constitutional Law, ch. ii; J. Fiske, Critical Period; A. B. Hart, Actual Government (Am. Citizen Series), ch. iii; James Bryce, American Commonwealth, chs. i-iv; The Federalist, Nos. 21, 22; J. J. Lalor, Cyclopedia, Arts. "Amendment and "Convention"; T. M. Cooley, Principles of Constitutional Law, ch. i; H. C. Black, Constitutional Law, §§ 22, 28, 29; McCulloch v. Maryland (1819, 4 Wheaton, 316; 4 Curtis' Decisions, 415; Thayer's Cases, 271; McClain's Cases, 1; Marshall's Decisions, Dillon's ed., 257); Martin v. Hunter's Lessee (1816, 1 Wheaton, 304; 3 Curtis' Decisions, 652; Thayer's Cases, 123; McClain's Cases, 746); Luther v. Borden (1848, 7 Howard, 1; McClain's Cases, 595); Koehler v. Hill (1883, 60 Iowa, 543; Thayer's Cases, 252); Maxwell v. Dow (1900, 176 U. S. 581); Dorr v. United States (1904, 24 Sup. Court Reporter, 809).

9. Colonial Charters; Transition to State Governments. The governments of the colonies, as provided for in their charters, or instructions to governors, or frames of government proceeding from a proprietor or from the royal government, combined some elements of royal authority with other elements of popular government. The governor was generally an appointive officer, selected either directly by the king, or indirectly, under his authority, by the proprietor or corporation to whom the colonial grant was made. There was usually a provision for a legislative body of two branches, the lower branch, at least, chosen by some form of suffrage. In the exercise of the powers of government, serious conflicts

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arose in several of the colonies between the representative of the royal power on the one hand, and the representatives of the people on the other, and it was quite as much the result of these local conflicts as it was of the agitation in the colonies for a greater measure of local self-government, which led to the widespread discussion of the proper sphere and functions of government.

The change from the charter or proprietary or royal government to a state government, which took place in each colony in some form in accordance with the action of the representatives of the colonies assembled in the general Congress at Philadelphia, in 1775, was a revolutionary change; that is, it was not in accordance with any prescribed constitutional form; as there could not be, of course, any power in the colonial governments to disavow the authority on which such governments rested. This change was effected in definite form in most of the colonies by the adoption of a constitution, and these first constitutions, in several instances, consisted of three parts: (1) a preamble, declaring the purpose for which the constitution was adopted; (2) a bill of rights, or declaration of rights, containing an exposition of the nature and powers of government and limitations on the powers of the government created under the constitution; (3) a description of the framework of the new government not very different from the former colonial organization. The preamble was omitted in later state constitutions, but the bill of rights has been preserved as an important feature in most, if not all, of the state constitutions which have been adopted down to the present time.

10. Authority on which State Constitutions Rest. The first state constitutions adopted in the respective colonies being revolutionary in their character had no basis of legal authority, and rested on the general consent of the people evidenced by their acquiescence in the authority of the governments established under such constitutions. Those adopted prior to 1780 were not submitted to popular vote, but went into effect on the authority of the legislative bodies existing in