12 Sergeant and Rawle 330 (Pa. 1825)

This otherwise unimportant case was an action in ejectment to recover possession of four lots in Easton, Pennsylvania. Nonetheless, Justice John Bannister Gibson’s dissenting opinion is generally recognized as the most effective answer to John Marshall’s famous argument supporting judicial review in Marbury v. Madison (1803). As of 1825 the Supreme Court of Pennsylvania had yet to invalidate an existing state law as a violation of the state’s constitution, even though certain state judges had claimed the authority to do so. Gibson’s opinion was a substantial factor in preventing his own appointment to the U.S. Supreme Court upon the death of Justice Bushrod Washington in 1830. In 1845 Gibson recanted, because the legislature of Pennsylvania had "sanctioned the pretensions of the courts to deal freely with the acts of the legislature, and from experience of the necessity of the case" (see Norris v. Clymer, 2 Pa. 281). Gibson’s opinion is excerpted in the 13^th edition of American Constitutional Law on pages 64-66. It appears here in full.

GIBSON J.

Whether there are equitable objections to the plaintiffs' recovery, as respects a part of the premises, I am unable to say. The statement of the case in the charge is by no means a full one; and we know not what sort of title might be shown on another trial. But those objections would go only to a part; and this leads to the point in the assignment of error—the operation of the act of the 11th of March, 1815, on the act of the 26th of March, 1785.

That it was the actual intent of the legislature to interpose an immediate bar, will, I think, be admitted. A simple repeal of the saving, would have sufficiently indicated such an intent. But the repealing act goes further, and in express terms calls into immediate operation the limitation in the second section of the original act, without containing a word on the subject of the third section which had become obsolete, but which is now said to be revived. To those who had a right of entry in 1785, but remained absent one and twenty years, that section gave fifteen years from the period of their arrival here. How then can we say, that it is to be considered as re-enacted in terms, with modifications, to adapt it to the circumstances of those who had a right of entry in 1815 (for that is the argument,) when the repealing act contains not a syllable on the subject? If the legislature had intended to revive this section, its meaning would have been expressed in terms. But what is there to give rise even to a suspicion of such an intent? Nothing but the apparent hardship of suddenly withdrawing the protection extended to the absent owner, after having induced him to trust to it as a permanent safeguard. But no impediment to the immediate pursuit of his claim was thrown in his way, and the legislature gave no pledge that what was entirely gratuitous at first, should be continued a single day. It was not only gratuitous, but unjust to our own citizens who remained at home to cultivate and defend the soil. Of all the disabilities originally provided for, absence is entitled to least indulgence, as it is always incurred voluntarily; for if it were occasioned by coverture, infancy, insanity, or imprisonment, any of these, without absence superadded, would be sufficient for every purpose of protection. Every other disability interposes an actual impediment; this does not: and if an absent owner will remain abroad, without providing an agent to attend to his business at home, he should take the consequences. In repealing the saving without provision for existing cases, therefore, I discover no hardship. It is obvious, this saving was originally introduced from a servile imitation of the British statute, and not from any consideration of its justice or policy; and the repeal of an obnoxious provision, creates no obligation to substitute any thing as an equivalent; nor is it probable the legislature would be disposed to do so. But were the repeal even positively unjust what right would we have to construe the act so as to frustrate its object? Under very particular circumstances, a court may properly supply details that are necessary, to prevent the plain and admitted intent of the legislature from failing of effect. Something like this was done in Waln v. Shearman, (8 Serg. & Rawle, 359,) and in Pennock v. Hart, (8 Serg. &, Rawle, 369.) But in the former of these cases, it is impossible to doubt, that in passing the act for the sale of unseated land for taxes, the intention was, in any event, to secure to the original owner, a right to contest the regularity of the sale, within five years from the time when an ejectment might first have been brought against the purchaser; and that in afterwards abolishing the old form of ejectment, by which an action could have been brought for vacant land, there was no intention to impair this right; and it is clear the actual intent of the legislature would have been frustrated by any other construction. The other case was within the letter, but not within the spirit of the act; but I am less confident of the soundness of that decision, than when it was pronounced. In the case before us, I find no reason to say that the third section of the act of 1785, is substantially reenacted by the act of 1715.

But it is said, that without it, the latter act would be unconstitutional; and, instead of controverting this, I will avail myself of it to express an opinion which I have deliberately formed, on the abstract right of the judiciary to declare an unconstitutional act of the legislature void.

It seems to me there is a plain difference, hitherto unnoticed, between acts that are repugnant to the constitution of the particular state, and acts that are repugnant to the constitution of the United States; my opinion being, that the judiciary is bound to execute the former, but not the latter. I shall hereafter attempt to explain this difference, by pointing out the particular provisions in the constitution of the United States on which it depends. I am aware, that a right to declare all unconstitutional acts void, without distinction as to either constitution, is generally held as a professional dogma; but, I apprehend, rather as a matter of faith than of reason. I admit that I once embraced the same doctrine, but without examination and I shall therefore state the arguments that impelled me to abandon it, with great respect for those by whom it is still maintained. But I may premise, that it is not a little remarkable, that although the right in question has all along been claimed by the judiciary, no judge has ventured to discuss it, except Chief Justice MARSHALL, (in Marbury v. Madison, 1 Cranch, 176,) and if the argument of a jurist so distinguished for the strength of his ratiocinative powers be found inconclusive, it may fairly be set down to the weakness of the position which he attempts to defend. Si Pergama dextra defendi potuit, etiam hac defensa fuisset. In saying this, I do not overlook the opinion of Judge Patterson in Vanhorne v. Dorrance, (2 Dall. 307,) which abounds with beautiful figures in illustration of his doctrine; but, without intending disrespect, I submit that metaphorical illustration is one thing and argument another. Now, in questions of this sort, precedents ought to go for absolutely nothing. The constitution is a collection of fundamental laws, not to be departed from in practice nor altered by judicial decision, and in the construction of it, nothing would be so alarming as the doctrine of communis error, which offers a ready justification for every usurpation that has not been resisted in limine. Instead, therefore, of resting on the fact, that the right in question has universally been assumed by the American courts, the judge who asserts it ought to be prepared to maintain it on the principles of the constitution.

I begin, then, by observing that in this country, the powers of the judiciary are divisible into those that are political and those that are purely civil. Every power by which one organ of the government is enabled to control another, or to exert an influence over its acts, is a political power. The political powers of the judiciary are extraordinary and adventitious; such, for instance as are derived from certain peculiar provisions in the constitution of the United States, of which hereafter: and they are derived, by direct grant, from the common fountain of all political power. On the other hand, its civil, are its ordinary and appropriate powers; being part of its essence, and existing independently of any supposed grant in the constitution. But where the government exists by virtue of a written constitution, the judiciary does not necessarily derive from that circumstance, any other than its ordinary and appropriate powers. Our judiciary is constructed on the principles of the common law, which enters so essentially into the composition of our social institutions as to be inseparable from them, and to be, in fact, the basis of the whole scheme of our civil and political liberty. In adopting any organ or instrument of the common law, we take it with just such powers and capacities as were incident to it at the common law, except where these are expressly, or by necessary implication, abridged or enlarged in the act of adoption; and, that such act is a written instrument cannot vary its consequences or construction. In the absence of special provision to the contrary, sheriffs, justices of the peace, and other officers whose offices are established in the constitution, exercise no other powers here, than what similar officers do in England; and trial by jury would have been according to the course of the common law, without any declaration to that effect in thc constitution. Now, what are the powers of the judiciary at the common law? They are those that necessarily arise out of its immediate business; and they are therefore commensurate only with the judicial execution of the municipal law, or, in other words, with the administration of distributive justice, without extending to any thing of a political cast whatever. Dr. Paley, as able a man as ever wrote on those subjects on which he professed to treat, seems to have considered the judiciary as a part of the executive, and judging from its essence, subordinate to the legislature, which he viewed as the depositary of the whole sovereignty of the state. With us, although the legislature be the depository of only so much of the sovereignty as the people have thought fit to impart, it is nevertheless sovereign within the limit of its powers, and may relatively claim the same pre-eminence here that it may claim elsewhere. It will be conceded, then, that the ordinary and essential powers of the judiciary do not extend to the annulling of an act of the legislature. Nor can the inference to be drawn from this, be evaded by saying that in England the constitution, resting in principles consecrated by time, and not in an actual written compact, and being subject to alteration by the very act of the legislature, there is consequently no separate and distinct criterion by which the question of constitutionality may be determined; for it does not follow, that because we have such a criterion, the application of it belongs to the judiciary. I take it, therefore, that the power in question does not necessarily arise from the judiciary being, established by a written constitution, but that this organ can claim on account of that circumstance, no powers that do not belong to it at the common law; and that, whatever may have been the cause of the limitation of its jurisdiction originally, it can exercise no power of supervision over the legislature, without producing a direct authority for it in the constitution, either in terms or by irresistible implication from the nature of the government: without which the power must be considered as reserved, along with the other ungranted portions of the sovereignty for the immediate use of the people.

The constitution of Pennsylvania contains no express grant of political powers to the judiciary. But, to establish a grant by implication, the constitution is said to be a law of superior obligation; and, consequently, that if it were to come into collision with an act of the legislature, the latter would have to give way. This is conceded. But it is a fallacy, to suppose that they can come into collision before the judiciary. What is a constitution? It is an act of extraordinary legislation, by which the people establish the structure and mechanism of their government; and in which they prescribe fundamental rules to regulate the motion of the several parts. What is a statute? It is an act of ordinary legislation by the appropriate organ of the government; the provisions of which are to be executed by the executive or judiciary, or by officers subordinate to them. The Constitution then, contains no practical rules for the administration of distributive justice, with which alone the judiciary has to do; these being furnished in acts of ordinary legislation, by that organ of the government, which in this respect, is exclusively the representative of the people; and it is generally true, that the provisions of a constitution are to be carried into effect immediately by the legislature, and only mediately, if at all, by the judiciary. In what respect is the constitution of Pennsylvania inconsistent with this principle? Only, perhaps, in one particular provision, to regulate the style of process, and establish an appropriate form of conclusion in criminal prosecutions: in this alone the constitution furnishes a rule for the judiciary, and this the legislature cannot alter, because it cannot alter the constitution. In all other cases, if the act of assembly supposed to be unconstitutional, were laid out of the question, there would remain no rule to determine the point in controversy in the cause, but the statute or common law, as it existed before the act of assembly was passed; and the constitution and act of assembly therefore do not furnish conflicting rules applicable to the point before the court; nor is it at all necessary, that the one or the other of them should give way.

The constitution and the right of the legislature to pass the act may be in collision. But is that a legitimate subject for judicial determination? If it be, the judiciary must be a peculiar organ, to revise the proceedings of the legislature, and to correct its mistakes; and in what part of the constitution are we to look for this proud pre-eminence? Viewing the matter in the opposite direction, what would be thought of an act of assembly in which it should be declared that the Supreme Court had, in a particular case, put a wrong construction on the constitution of the United States, and that the judgment should therefore be reversed? It would doubtless be thought a usurpation of judicial power. But it is by no means clear, that to declare a law void which has been enacted according to the forms prescribed in the constitution, is not a usurpation of legislative power. It is an act of sovereignty; and sovereignty and legislative power are said by Sir William Blackstone to be convertible terms. It is the business of the judiciary to interpret the laws, not scan the authority of the lawgiver; and without the latter, it cannot take cognizance of a collision between a law and the constitution. So that to affirm that the judiciary has a right to judge of the existence of such, collision, is to take for granted the very thing to be proved. And, that a very cogent argument may be made in this way, I am not disposed to deny; for no conclusions are so strong as those that are drawn from the petitio principii.

But it has been said to be emphatically the business of the judiciary, to ascertain and pronounce what the law is; and that this necessarily involves a consideration of the constitution. It does so: but how far? If the judiciary will inquire into any thing beside the form, of enactment, where shall it stop? There must be some point of limitation to such an inquiry; for no one will pretend that a judge would be justifiable in calling for the election returns, or scrutinizing the qualifications of those who composed the legislature.

It is next supposed, that as the members of the legislature have no inherent right of legislation, but derive their authority from the people, no law can be valid where authority to pass it, is either simply not, given or positively withheld: thus treating the members as the agents of the people, and the constitution as a letter of attorney containing, their authority and bounding their sphere of action, and the consequence deduced being, that acts not warranted by the constitution are not the acts of the people, but of those that do them; and that they are therefore ipso facto void. The concluding inference is, in military phrase, the key of the position, and if it be tenable, it will decide the controversy; for a law ipso facto void, is absolutely a non entity. But it is putting the argument on bold ground to say, that a high public functionary shall challenge no more respect than is due to a private individual; and that its acts, although presenting themselves under sanctions derived from a strict observance of the form of enactment prescribed in the constitution, are to be rejected as ipso facto void for excess of authority. The constitution is not to be expounded like a deed, but by principles of interpretation much more liberal; as was declared by this court in The Farmers and Mechanics’ Bank v. Smith, (3 Serg. & Rawle, 63.) But, in the case of a public functionary, even according to common law maxims, omnia presumi debeant rite et solemniter esse acta. The benefit of this maxim cannot be refused to the legislature by those who advocate the other side, inasmuch as it is the foundation of their own hypothesis; for all respect is demanded for the acts of the judiciary. For instance: let it be supposed that the power to declare a law unconstitutional has been exercised. What is to be done? The legislature must acquiesce, although it may think the construction of the judiciary wrong. But why must it acquiesce? Only because it is bound to pay that respect to every other organ of the government, which it has a right to exact from each of them in turn. This is the argument. But it will not be pretended, that the legislature has not at least an equal right with the judiciary to put a construction on the constitution; nor that either of them is infallible; nor that either ought to be required to surrender its judgement to the other. Suppose, then, they differ in opinion as to the constitutionality of a particular law if the organ whose business it first is to decide on the subject, is not to have its judgment treated with respect, what shall prevent it from securing the preponderance of its opinion by the strong arm of power? It is in vain to say, the legislature would be the aggressor in this; and that no argument in favour of its authority can be drawn from an abuse of its power. Granting this, yet it is fair to infer, that the framers of the constitution never intended to force the judges either to become martyrs or to flinch from their duty; or to interpose a check that would produce no other effect than an intestine war. Such things have occurred in other states, and would necessarily occur in this, under circumstances of strong excitement in the popular branch. The judges would be legislated out of office, if the majority requisite to a direct removal by impeachment, or the legislative address, could not be had; and this check, instead of producing the salutary effect expected from it, would rend the government in pieces. But, suppose that a struggle would not produce consequences so disastrous, still the soundness of any construction which would bring one organ of the government into collision with another, is to be more than suspected; for where collision occurs, it is evident the machine is working in a way the framers of it did not intend. But what I want more immediately to press on the attention, is the necessity of yielding to the acts of the legislature the same respect that is claimed for the acts of the judiciary. Repugnance to the constitution is not always self evident; for questions involving the consideration of its existence, require for their solution the most vigorous exertion of the higher faculties of the mind, and conflicts will be inevitable, if any branch is to apply the constitution after its own fashion to the acts of all the others. I take it, then, the legislature is entitled to all the deference that is due to the judiciary; that its acts are in no case to be treated as ipso facto void, except where they would produce a revolution in the government; and that, to avoid them, requires the act of some tribunal competent under the constitution, (if any such there be,) to pass on their validity. All that remains, therefore, is to inquire whether the judiciary or the people are that tribunal.

Now, as the judiciary is not expressly constituted for that purpose, it must derive whatever authority of the sort it may possess, from the reasonableness and fitness of the thing. But, in theory, all the organs of the government are of equal capacity; or, if not equal, each must be supposed to have superior capacity only for those things which peculiarly belong to it; and, as legislation peculiarly involves the consideration of those limitations which are put on the law-making power, and the interpretation of the laws when made, involves only the construction of the laws themselves, it follows that the construction of the constitution in this particular belongs to the legislature, which ought therefore to be taken to have superior capacity to judge of the constitutionality of its own acts. But suppose all to be of equal capacity in every respect, why should one exercise a controlling power over the rest? That the judiciary is of superior rank, has never been pretended, although it has been said to be co-ordinate. It is not easy, however, to comprehend how the power which gives law to all the rest, can be of no more than equal rank with one which receives it, and is answerable to the former for the observance of its statutes. Legislation is essentially an act of sovereign power; but the execution of the laws by instruments that are governed by prescribed rules and exercise no power of volition, is essentially otherwise. The very definition of law, which is said to be "a rule of civil conduct prescribed by the supreme power in the state," shows the intrinsic superiority of the legislature. It may be said, the power of the legislature, also, is limited by prescribed rules. It is so. But it is, nevertheless, the power of the people, and sovereign as far as it extends. It cannot be said, that the judiciary is co-ordinate merely because it is established by the constitution. If that were sufficient, sheriffs, registers of wills, and recorders of deeds, would be so too. Within the pale of their authority, the acts of these officers will have the power of the people for their support; but no one will pretend, they are of equal dignity with the acts of the legislature. Inequality of rank arises not from the manner in which the organ has been constituted, but from its essence and the nature of its functions; and the legislative organ is superior to every other, inasmuch as the power to will and to command, is essentially superior to the power to act and to obey. It does not follow, then, that every organ created by special provision in the constitution, is of equal rank. Both the executive, strictly as such, and the judiciary are subordinate; and an act of superior power exercised by an inferior ought, one would think, to rest on something more solid than implication.

It may be alleged, that no such power is claimed, and that the judiciary does no positive act, but merely refuses to be instrumental in giving effect to an unconstitutional law. This is nothing more than a repetition in a different form of the argument,—that an unconstitutional law is ipso facto void; for a refusal to act under the law, must be founded on a right in each branch to judge of the acts of all the others, before it is bound to exercise its functions to give those acts effect. No such right is recognized in the different branches of the national government, except the judiciary, (and that, too, on account of the peculiar provisions of the constitution,) for it is now universally held, whatever doubts may have once existed, that congress is bound to provide for carrying a treaty into effect, although it may disapprove of the exercise of the treaty-making power in the particular instance. A government constructed on any other principle, would be in perpetual danger of standing still; for the right to decide on the constitutionality of the laws, would not be peculiar to the judiciary, but would equally reside in the person of every officer whose agency might be necessary to carry them into execution.

Every one knows how seldom men think exactly alike on ordinary subjects; and a government constructed on the principle of assent by all its parts, would be inadequate to the most simple operations. The notion of a complication of counter checks has been carried to an extent in theory, of which the framers of the constitution never dreamt. When the entire sovereignty was separated into its elementary parts, and distributed to the appropriate branches all things incident to the exercise of its powers were committee to each branch exclusively. The negative which each part of the legislature may exercise, in regard to the acts of the other, was thought sufficient to prevent material infractions of the restraints which were put on the power of the whole; for, had it been intended to interpose the judiciary as an additional barrier, the matter would surely not have been left in doubt. The judges would not have been left to stand on the insecure and ever shifting ground of public opinion as to constructive powers: they would have been placed on the impregnable ground of an express grant. They would not have been compelled to resort to the debates in the convention, or the opinion that was generally entertained at the time. A constitution, or a statute, is supposed to contain the whole will of the body from which it emanated; and I would just as soon resort to the debates in the legislature for the construction of an act of assembly, as to the debates in the convention for the construction of the constitution.

The power is said to be restricted to cases that are free from doubt or difficulty. But the abstract existence of a power cannot depend on the clearness or obscurity of the case in which it is to be exercised; for that is a consideration that cannot present itself, before the question of the existence of the power shall have been determined; and, if its existence be conceded, no considerations of policy arising from the obscurity of the particular case, ought to influence the exercise of it. The judge would have no discretion; but the party submitting the question of constitutionality would have an interest in the decision of it, which could not be postponed to motives of deference for the opinion of the legislature. His rights would depend not on the greatness of the supposed discrepancy with the constitution, but on the existence of any discrepancy at all; and the judge would therefore be bound to decide this question, like every other in respect to which he may be unable to arrive at a perfectly satisfactory conclusion. But he would evade the question instead of deciding it, were he to refuse to decide in accordance with the inclination of his mind. To say, therefore, that the power is to be exercised but in perfectly clear cases, is to betray a doubt of the propriety of exercising it at all. Were the same caution used in judging of the existence of the power that is inculcated as to the exercise of it, the profession would perhaps arrive at a different conclusion. The grant of a power so extraordinary ought to appear so plain, that he who should run might read. Now, put the constitution into the hands of any man of plain sense, whose mind is free from an impression on the subject, and it will be impossible to persuade him, that the exercise of such a power was ever contemplated by the convention.

But the judges are sworn to support the constitution, and are they not bound by it as the law of the land? In some respects they are. In the very few cases in which the judiciary, and not the legislature, is the immediate organ to execute its provisions, they are bound by it in preference to any act of assembly to the contrary. In such cases, the constitution is a rule to the courts. But what I have in view in this inquiry, is the supposed right of the judiciary to interfere, in cases where the constitution is to be carried into effect through the instrumentality of the legislature, and where that organ must necessarily first decide on the constitutionality of its own act. The oath to support the constitution is not peculiar to the judges, but is taken indiscriminately by every officer of the government, and is designed rather as a test of the political principles of the man, than to bind the officer in the discharge of his duty: otherwise it were difficult to determine what operation it is to have in the case of a recorder of deeds, for instance, who, in the execution of his office, has nothing to do with the constitution. But granting it to relate to the official conduct of the judge, as well as every other officer, and not to his political principles, still it must be understood in reference to supporting the constitution, only as far as that may be involved in his official duty; and, consequently, if his official duty does not comprehend an inquiry into the authority of the legislature, neither does his oath. It is worthy of remark here, that the foundation of every argument in favour of the right of the judiciary, is found at last to be an assumption of the whole ground in dispute. Granting that the object of the oath is to secure a support of the constitution in the discharge of official duty, its terms may be satisfied by restraining it to official duty in the exercise of the ordinary judicial powers. Thus, the constitution may furnish a rule of construction, where a particular interpretation of a law would conflict with some constitutional principle; and such interpretation, where it may, is always to be avoided. But the oath was more probably designed to secure the powers of each of the different branches from being usurped by any of the rest: for instance, to prevent the house of representatives from erecting itself into a court of judicature, or the Supreme Court from attempting to control the legislature; and, in this view, the oath furnishes an argument equally plausible against the right of the judiciary. But if it require a Support of the constitution in any thing beside official duty, it is in fact an oath of allegiance to a particular form of government; and, considered as such, it is not easy to see why it should not be taken by the citizens at large, as well as by the officers of the government. It has never been thought that an officer is under greater restraint as to measures which have for their avowed end a total change of the constitution, than a citizen who has taken no oath at all. The official oath, then, relates only to the official conduct of the officer, and does not prove that he ought to stray from the path of his ordinary business to search for violations of duty in the business of others; nor does it, as supposed, define the powers of the officer.

But do not the judges do a positive act in violation of the constitution, when they give effect to an unconstitutional law? Not if the law has been passed according to the forms established in the constitution. The fallacy of the question is, in supposing that the judiciary adopts the acts of the legislature as its own; whereas the enactment of a law and the interpretation of it are not concurrent acts, and as the judiciary is not required to concur in the enactment, neither is it in the breach of the constitution which may be the consequence of the enactment. The fault is imputable to the legislature, and on it the responsibility exclusively rests. In this respect, the judges are in the predicament of jurors who are bound to serve in capital cases, although unable, under any circumstances, to reconcile it to their duty to deprive a human being of life. To one of these, who applied to be discharged from the panel, I once heard it remarked, by an eminent and humane judge, "You do not deprive a prisoner of life by finding him guilty of a capital crime: you but pronounce his case to be within the law, and it is therefore those who declare the law and not you, who deprive him of life."

That every thing addressed to the legislature by way of positive command, is purely directory, will hardly be disputed: it is only to enforce prohibitions that the interposition of judicial authority is thought to be warrantable. But I can see no room for a distinction between the injunctions that are positive and those that are negative: the same authority must enforce both.

But it has been said, that this construction would deprive the citizen of the advantages which are peculiar to a written constitution, by at once declaring the power of the legislature, in practice, to be illimitable. I ask, what are those advantages? The principles of a written constitution are more fixed and certain, and more apparent to the apprehension of the people, than principles which depend on tradition and the ague comprehension of the individuals who compose the nation, and who cannot all be expected to receive the same impressions or entertain the same notions on any given subject. But there is no magic or inherent power in parchment and ink, to command respect and protect principles from violation. In the business of government, a recurrence to first principles answers the end of an observation at sea with a view to correct the dead reckoning; and, for this purpose, a written constitution is an instrument of inestimable value. It is of inestimable value, also, in rendering its principles familiar to the mass of the people; for, after all, there is no effectual guard against legislative usurpation but public opinion, the force of which, in this country, is inconceivably great. Happily this is proved, by experience, to be a sufficient guard against palpable infractions The constitution of this state has withstood the shocks of strong; party excitement for thirty years, during which no act of the legislature has been declared unconstitutional, although the judiciary has constantly asserted a right to do so in clear cases. But it would be absurd to say, that this remarkable observance of the constitution has been produced, not by the responsibility of the legislature to the people, but by an apprehension of control by the judiciary. Once let public opinion be so corrupt as to sanction every misconstruction of the constitution and abuse of power which the temptation of the moment may dictate, and the party which may happen to be predominant, will laugh at the puny efforts of a dependent power to arrest it in its course.

For these reasons, I am of opinion that it rests with the people, in whom full and absolute sovereign power resides, to correct abuses in legislation, by instructing their representatives to repeal the obnoxious act. What is wanting to plenary power in the government, is reserved by the people for their own immediate use; and to redress on infringement of their rights in this respect, would seem to be an accessory of the power thus reserved. It might, perhaps, have been better to vest the power in the judiciary; as it might be expected that its habits of deliberation, and the aid derived from the arguments of counsel, would more frequently lead to accurate conclusions. On the other hand, the judiciary is not infallible; and an error by it would admit of no remedy but a more distinct expression of the public will, through the extraordinary medium of a convention; whereas, an error by the legislature admits of a remedy by an exertion of the same will, in the ordinary exercise of the right of suffrage a mode better calculated to attain the end, without popular excitement. It may be said, the people would probably not notice an error of their representatives. But they would as probably do so, as notice an error of the judiciary; and, beside, it is a postulate in the theory of our government, and the very basis of the superstructure, that the people are wise, virtuous, and competent to manage their own affairs: and if they are not so, in fact, still every question of this sort must be determined according to the principles of the constitution, as it came from the hands of its framers, and the existence of a defect which was not foreseen, would not justify those who administer the government, in applying a corrective in practice, which can be provided only by a convention. Long and uninterrupted usage is entitled to respect; and, although it cannot change an admitted principle of the constitution, it will go far to settle a question of doubtful right. But, although this power has all along been claimed by the state judiciary, it has never been exercised. Austin v. The University of Pennsylvania, (1 Yeates, 260,) is the only case even apparently to the contrary; but there the act of assembly had been previously repealed. In Vanhorne v. Dorrance, decided by the Circuit Court of the United States under similar circumstances, the right is peremptorily asserted and examples of monstrous violations of the constitution are put in a strong light by way of example; such as taking away the trial by jury, the elective franchise, or subverting religious liberty. But any of these would be such a usurpation of the political rights of the citizens, as would work a change in the very structure of the government; or, to speak more properly, it would itself be a revolution, which, to counteract, would justify even insurrection; consequently, a judge might lawfully employ every instrument of official resistance within his reach. By this I mean, that while the citizen should resist with pike and gun, the judge might co-operate with habeas corpus and mandamus. It would be his duty, as a citizen, to throw himself into the breach, and, if it should be necessary, perish there; but this is far from proving the judiciary to be a peculiar organ under the constitution, to prevent legislative encroachment on the powers reserved by the people; and this is all that I contend it is not. Indeed, its absolute inadequacy to the object, is conclusive that it never was intended as such by the framers of the constitution, who must have had in view the probable operation of the government in practice.

But in regard to an act of assembly, which is found to be in collision with the constitution, laws, or treaties of the United States, I take the duty of the judiciary to be exactly the reverse. By becoming parties to the federal constitution, the states have agreed to several limitations of their individual sovereignty, to enforce which, it was thought to be absolutely necessary to prevent them from giving effect to laws in violation of those limitations, through the instrumentality of their own judges. Accordingly, it is declared in the fifth [sic] article and second section of the federal constitution, that "This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby: any thing in the laws or constitution of any state to the contrary notwithstanding."

This is an express grant of a political power, and it is conclusive to show that no law of inferior obligation, as every state law must necessarily be, can be executed at the expense of the constitution, laws, or treaties of the United States. It may be said, these are to furnish a rule only when there is no state provision on the subject. But, in that view, they could with no propriety be called supreme; for supremacy is a relative term, and cannot be predicated of a thing which exists separately and alone: and this law, which is called supreme, would change its character and become subordinate as soon as it should be found in conflict with a state law.

But the judges are to be bound by the federal constitution and laws, notwithstanding any thing in the constitution or laws of the particular state to the contrary. If, then, a state were to declare the laws of the United States not to be obligatory on her judges, such an act would unquestionably be void; for it will not be pretended, that any member of the union can dispense with the obligation of the federal constitution: and, if it cannot be done directly, and by a general declaratory law, neither can it indirectly, and by by-laws dispensing with it in particular cases. This, therefore, is an express grant of the power, and would be sufficient for the purposes of the argument; but it is not all.

By the third article and second section appellate jurisdiction of all cases arising under the constitution and laws of the United States, is reserved to the federal judiciary, under such regulations as congress may prescribe; and, in execution of this provision, congress has prescribed regulations for removing into the Supreme Court of the United States, all causes decided by the highest court of judicature of any state, which involve the construction of the constitution, or of any law or treaty of the United States. This is another guard against infraction of the limitations imposed on state sovereignty, and one which is extremely efficient in practice; for reversals of decisions in favour of the constitutionality of acts of assembly, have been frequent on writs of error to the Supreme Court of the United States.

Now, a reversal implies that it was not only the right, but the duty of the inferior court to decide otherwise; for where there is but one way of deciding, there can be no error. But what beneficial result would there be produced by the decision of a state court in favour of a state law palpably unconstitutional? The injured party would have the judgment reversed by the court in the last resort, and the cause would come back with a mandate to decide differently, which the state court dare not disobey: so that nothing would eventually be gained by the party claiming under the law of the state, but, on the contrary, he would be burdened with additional costs. I grant, however, that the state judiciary ought not to exercise the power except in cases free from all doubt, because, as a writ of error to the Supreme Court of the United States lies to correct an error only in favour of the constitutionality of the state law, an error in deciding against it would be irremediable. Anticipating those who think they perceive in this, exactly what I have censured in those who assume the existence of the same power in respect to laws that are repugnant to the constitution of the state, but restrict the exercise of it to clear cases, I briefly remark that the instances are not parallel; an error in deciding against the validity of the law, being irreparable in the one, and not so in the other.

Unless, then, the respective states are not bound by the engagement, which they have contracted by becoming parties to the constitution of the United States, they are precluded from denying either the right or the duty of their judges, to declare their laws void when they are repugnant to that constitution.

The preceding inquiry may perhaps appear foreign to the point immediately before the court; but, as the act of 1815 may be thought repugnant to the constitution of the state, an examination of the powers of the judiciary, became not only proper but necessary.

Then, laying the constitution of the state out of the case, what restriction on state sovereignty is violated by at once repealing any of the saving clauses in the statute of limitations? Those restrictions are contained in the first article and tenth section of the constitution of the United States; and, as there is no pretence that a contract has been impaired, none of them can, even by the most strained construction, be supposed to he violated, except that which relates to ex post facto laws. But that was held, in Calder v. Bull, (3 Dall. 386,) to be applicable only to penal laws. The law in question not only relates to civil rights, but is not even retrospective. It is commonly said, that the statute of limitations does not run against any one, who is within the benefit of any clause of the proviso; but this is plainly inaccurate. It actually runs, but ten years from the removal of the disability provided for, are given in addition to the original period, and this as a personal privilege in avoidance of the bar which would otherwise be decisive. If it were actually to begin to run only from the removal of the disability, the party would have twenty-one years from that period. Now, suppose it to be removed at the conclusion of the twentieth year, it will not be pretended that he would still have twenty-one years in addition: yet that consequence would be inevitable, were the statute not to begin to run before. So, where the disability is removed during the first year, the party will not be compelled to make entry within the ensuing ten; for the saving does not come into operation till the period which constitutes a bar in ordinary cases has elapsed: he must therefore, in such case, make his entry within the original period. Then, by putting in force a limitation which had all along been running against the plaintiffs, the act of 1815 did not operate retrospectively, but deprived them of a prospective exemption, which, having been gratuitous cannot be said to have originated in contract. I am therefore of opinion that the judgment be affirmed.

Robert Yates as "Brutus" on Judicial Review

Robert Yates, a New York judge, was one of that state’s three delegates to the Philadelphia Convention. Unhappy with the direction of the proceedings, he and fellow delegate (and Albany mayor) John Lansing left the convention on July 10. During the debates over ratification, Yates published his criticisms of the proposed Constitution in a series of letters in the New York Journal and Weekly Register. The three included here were later reprinted as an appendix to Edward S. Corwin, Court Over Constitution (Princeton, N.J.: Princeton University Press, 1938), pp. 231-262. The three spoke to the Supreme Court’s anticipated power of judicial review and prompted Alexander Hamilton (the only New York delegate to sign the Constitution) to respond in The Federalist, especially in No. 78. The original spelling and type forms have been updated. Excerpts from No. 11 and No. 15 appear on pages 56-57 in the 13^th edition of American Constitutional Law. Excerpts from Hamilton’s Federalist No. 78 appear on pages 58-59.

BRUTUS, No. 11 (January 31, 1788)

The nature and extent of the judicial power of the United States, proposed to be granted by this constitution, claims our particular attention.

Much has been said and written upon the subject of this new system on both sides, but I have not met with any writer, who has discussed the judicial powers with any degree of accuracy. And yet it is obvious, that we can form but very imperfect ideas of the manner in which this government will work, or the effect it will have in changing the internal police and mode of distributing justice at present subsisting in the respective states, without a thorough investigation of the powers of the judiciary and of the manner in which they will operate. This government is a complete system, not only for making, but for executing laws. And the courts of law, which will be constituted by it, are not only to decide upon the constitution and the laws made in pursuance of it, but by officers subordinate to them to execute all their decisions. The real effect of this system of government, will therefore be brought home to the feelings of the people, through the medium of the judicial power. It is, moreover, of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.

The only causes for which they can be displaced, is, conviction of treason, bribery, and high crimes and misdemeanors.

This part of the plan is so modeled, as to authorize the courts, not only to carry into execution the powers expressly given, but where these are wanting or ambiguously expressed, to supply what is wanting by their own decisions.

That we may be enabled to form a just opinion on this subject, I shall, in considering it,

1^st. Examine the nature and extent of the judicial powers--and

2^d. Inquire, whether the courts who are to exercise them, are so constituted as to afford reasonable ground of confidence, that they will exercise them for the general good.

With a regard to the nature and extent of the judicial powers, I have to regret my want of capacity to give that full and minute explanation of them that the subject merits. To be able to do this, a man should be possessed of a degree of law knowledge far beyond what I pretend to. A number of hard words and technical phrases are used in this part of the system, about the meaning of which gentlemen learned in the law differ.

Its advocates know how to avail themselves of these phrases. In a number of instances, where objections are made to the powers given to the judicial, they give such an explanation to the technical terms as to avoid them.

Though I am not competent to give a perfect explanation of the powers granted to this department of the government, I shall yet attempt to trace some of the leading features of it, from which I presume it will appear, that they will operate to a total subversion of the state judiciaries, if not, to the legislative authority of the states.

In article 3d, sect. 2d, it is said, "The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority, &c."

The first article to which this power extends, is, all cases in law and equity arising under this constitution.

What latitude of construction this clause should receive, it is not easy to say. At first view, one would suppose, that it meant no more than this, that the courts under the general government should exercise, not only the powers of courts of law, but also that of courts of equity, in the manner in which those powers are usually exercised in the different states. But this cannot be the meaning, because the next clause authorizes the courts to take cognizance of all cases in law and equity arising under the laws of the United States; this last article, I conceive, conveys as much power to the general judicial as any of the state courts possess.

The cases arising under the constitution must be different from those arising under the laws, or else the two clauses mean exactly the same thing.

The cases arising under the constitution must include such, as bring into question its meaning, and will require an explanation of the nature and extent of the powers of the different departments under it.

This article, therefore, vests the judicial with a power to resolve all questions that may arise on any case on the construction of the constitution, either in law or in equity.

1^st. They are authorized to determine all questions that may arise upon the meaning of the constitution in law. This article vests the courts with authority to give the constitution a legal construction, or to explain it according to the rules laid down for construing a law.— These rules give a certain degree of latitude of explanation. According to this mode of construction, the courts are to give such meaning to the constitution, as comports best with the common, and generally received acceptation of the words in which it is expressed, regarding their ordinary and popular use, rather than their grammatical propriety. Where words are dubious, they will be explained by the context. The end of the clause will be attended to, and the words will be understood, as having a view to it; and the words will not be so understood as to bear no meaning or a very absurd one.

2^d. The judicial are not only to decide questions arising upon the meaning of the constitution in law, but also in equity.

By this they are empowered, to explain the constitution according to the reasoning spirit of it, without being confined to the words or letter.

"From this method of interpreting laws" (says Blackstone) "by the reason of them, arises what we call equity;" which is thus defined by Grotius, "the correction of that, wherein the law, by reason of its universality, is deficient; for since in laws all cases cannot be foreseen, or expressed, it is necessary, that when the decrees of the law cannot be applied to particular cases, there should somewhere be a power vested of defining those circumstances, which had they been foreseen the legislator would have expressed;" and these are the cases, which according to Grotius, "lex non exacte definit, fed arbitrio boni viri permittet."

The fame learned author observes, "That equity, thus depending essentially upon each individual case, there can be 110 established rules and fixed principles of equity laid down, without destroying its very essence, and reducing it to a positive law."

From these remarks, the authority and business of the courts of law, under this clause, may be understood.

They will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or control their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorized by the constitution to decide in the last resort. The legislature must be controlled by the constitution and not the constitution by them. They have therefore no more right to set aside any judgment pronounced upon the construction of the constitution, than they have to take from the president, the chief command of the army and navy, and commit it to some other person. The reason is plain; the judicial and executive derive their authority from the same source, that the legislature do theirs; and therefore in all cases, where the constitution does not make the one responsible to, or controllable by the other, they are altogether independent of each other.

The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution:—I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted.

That the judicial power of the United States, will lean strongly in favor of the general government, and will give such an explanation to the constitution, as will favor an extension of its jurisdiction, is very evident from a variety of considerations.

1^st. The constitution itself strongly countenances such a mode of construction. Most of the articles in this system, which convey powers of any considerable importance, are conceived in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions to unfold the extent of their meaning. The two most important powers committed to any government, those of raising money, and of raising and keeping up troops, have already been considered, and shown to be unlimited by any thing but the discretion of the legislature. The clause which vests the power to pass all laws which are proper and necessary, to carry the powers given into execution, it has been shown, leaves the legislature at liberty, to do every thing, which in their judgment is best. It is said, I know, that this clause confers no power on the legislature, which they would not have had without it—though I believe this is not the fact, yet, admitting it to be, it implies that the constitution is not to receive an explanation strictly, according to its letter; but more power is implied than is expressed. And this clause, if it is to be considered, as explanatory of the extent of the powers given, rather than giving a new power, is to be understood as declaring, that in construing any of the articles conveying power, the spirit, intent and design of the clause, should be attended to, as well as the words in their common acceptation.

This constitution gives sufficient color for adopting an equitable construction, if we consider the great end and design it professedly has in view—this appears from its preamble to be, "to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and posterity." The design of this system is here expressed, and it is proper to give such a meaning to the various parts, as will best promote the accomplishment of the end; this idea suggests itself naturally upon reading the preamble, and will countenance the court in giving the several articles such a sense, as will the most effectual promote the ends the constitution had in view—how this manner of explaining the constitution will operate in practice, shall be the subject of future inquiry.

2d. Not only will the constitution justify the courts in inclining to this mode of explaining it, but they will be interested in using this latitude of interpretation. Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpaired to their successors; the fame principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise. I add, it is highly probable the emolument of the Judges will be increased, with the increase of the business they will have to transact and its importance. From these considerations the judges will be interested to extend the powers of the courts, and to construe the constitution as much as possible, in such a way as to favor it; and that they will do it, appears probable.

3d. Because they will have precedent to plead, to justify them in it. It is well known, that the courts in England, have by their own authority, extended their jurisdiction far beyond the limits set them in their original institution, and by the laws of the land.

The court of exchequer is a remarkable instance of this. It was originally intended principally to recover the king's debts, and to order the revenues of the crown. It had a common law jurisdiction, which was established merely for the benefit of the king’s accomptants. We learn from Blackstone, that the proceedings in this court are grounded on a writ called quo minus, in which the plaintiff suggests, that he is the king's farmer or debtor, and that the defendant has done him the damage complained of, by which he is less able to pay the king. These suits, by the statute of Rutland, are expressly directed to be confined to such matters as specially concern the king, or his ministers in the exchequer. And by the articuli super cartas, it is enacted, that no common pleas be thenceforth held in the exchequer contrary to the form of the great charter: but now any person may sue in the exchequer. The surmise of being debtor to the king being matter of form, and mere words of court; and the court is open to all the nation.

When the courts will have a president before them of a court which extended its jurisdiction in opposition to an act of the legislature, it is not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? and they are authorized to construe its meaning, and are not under any control?

This power in the judicial, will enable them to mold the government, into almost any shape they please.— The manner in which this may be effected we will hereafter examine.

BRUTUS.

BRUTUS, No. 12 (February 14, 1788)

In my last, I showed, that the judicial power of the United States under the first clause of the second section of article three, would be authorized to explain the constitution, not only according to its letter, but according to its spirit and intention; and having this power, they would strongly incline to give it such a construction as to extend the powers of the general government, as much as possible, to the diminution, and finally to the destruction, of that of the respective states.

I shall now proceed to show how this power will operate in its exercise to effect these purposes. In order to perceive the extent of its influence, I shall consider,

First. How it will tend to extend the legislative authority.

Second. In what manner it will increase the jurisdiction of the courts, and

Third. The way in which it will diminish, and destroy, both the legislative and judicial authority of the United States.

First. Let us inquire how the judicial power will effect an extension of the legislative authority.

Perhaps the judicial power will not be able, by direct and positive decrees, ever to direct the legislature, because it is not easy to conceive how a question can be brought before them in a course of legal discussion, in which they can give a decision, declaring, that the legislature have certain powers which they have not exercised, and which, in consequence of the determination of the judges, they will be bound to exercise. But it is easy to see, that in their adjudication’s they may establish certain principles, which being received by the legislature, will enlarge the sphere of their power beyond all bounds.

It is to be observed, that the supreme court has the power, in the last report, to determine all questions that may arise in the course of legal discussion, on the meaning and construction of the constitution. This power they will hold under the constitution, and independent of the legislature. The latter can no more deprive the former of this right, than either of them, or both of them together, can take from the president, with the advice of the senate, the power of making treaties or appointing ambassadors.

In determining these questions, the court must and will assume certain principles, from which they will reason, in forming their decisions. These principles, whatever they may be, when they become fixed, by a course of decisions, will be adopted by the legislature, and will be the rule by which they will explain their own powers. This appears evident from this consideration, that if the legislature pass laws, which, in the judgment of the court, they are not authorized to do by the constitution, the court will not take notice of them; for it will not be denied, that the constitution is the highest or supreme law. And the courts are vested with the supreme and uncontrollable power, to determine, in all cases that come before them, what the constitution means; they cannot, therefore, execute a law, which, in their judgment, opposes the constitution, unless we can suppose they can make a superior law give way to an inferior. The legislature, therefore, will not go over the limits by which the courts may adjudge they are confined. And there is little room to doubt but that they will come up to those bounds as often as occasion and opportunity may offer, and they may judge it proper to do it. For as on the one hand, they will not readily pass laws which they know the courts will not execute so on the other, we may be sure they will not scruple to pass such as they know they will give effect, as often as they may judge it proper.

From these observations it appears, that the judgment of the judicial, on the constitution, will become the rule to guide the legislature in their construction of their powers.

What the principles are, which the courts will adopt, it is impossible for us to say; but taking up the powers as I have explained them in my last number, which they will possess under this clause, it is not difficult to see, that they may, and probably will, be very liberal ones.

We have seen, that they will be authorized to give the constitution a construction according to its spirit and reason, and not to confine themselves to its letter.

To discover the spirit of the constitution, it is of the first importance to attend to the principal ends and designs it has in view. These are expressed in the preamble, in the following words, viz. "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution," etc. If the end of the government is to be learned from these words, which are clearly designed to declare it, it is obvious it has in view every object which is embraced by any government. The preservation of internal peace—the due administration of justice—and to provide for the defense of the community, seems to include all the objects of government; but if they do not, they are certainly comprehended in the words, "to provide for the general welfare." If it be further considered, that this constitution, if it is ratified, will not be a compact entered into by states, in their corporate capacities, but an agreement of the people of the United States, as one great body politic, no doubt can remain, but that the great end of the constitution, if it is to be collected from the preamble, in which its end is declared, is to constitute a government which is to extend to every case for which any government is instituted, whether external or internal. The courts, therefore, will establish this as a principle in expounding, the constitution, and will give every part of it such an explanation, as will give latitude to every department under it, to take cognizance of every matter, not only that affects the general and national concerns of the union, but also of such as relate to the administration of private justice, and to regulating the internal and local affairs of the different parts.

Such a rule of exposition is not only consistent with the general spirit of the preamble, but it will stand confirmed by considering more minutely the different clauses of it.

The first object declared to be in view is, "To form a perfect union." It is to be observed, it is not a union of states or bodies corporate; had this been the case the existence of the state governments, might have been secured. But it is a union of the people of the United States considered as one boy, who are to ratify this constitution, if it is adopted. Now to make a union of this kind perfect, it is necessary to abolish all inferior government, and to give the general one complete legislative, executive and judicial powers to every purpose. The courts therefore will establish it as a rule in explaining the constitution. To give it such a construction as will best tend to perfect the union or take from the state governments every power of either making or executing laws. The second object is "to establish justice." This must include not only the idea of instituting the rule of justice, or of making laws which shall be the measure or rule of right, but also of providing for the application of this rule or of administering justice under it. And under this the courts will in their decisions extend the power of the government to all cases they possibly can, or otherwise they will be restricted in doing what appears to be the intent of the constitution they should do, to wit, pass and provide for the execution of them, for the general distribution of justice between man and man. Another end declared is "to insure domestic tranquility." This comprehends a provision against all private breaches of the peace, as well as against all public commotion or general insurrections; and to attain the object of this clause fully, the government must exercise the power of passing laws on these subjects, as well as of appointing magistrates with authority to execute them. And the courts will adopt these ideas in their expositions. I might proceed to the other clause, in the preamble, and it would appear by a consideration of all of them separately, as it does by taking them together, that if the spirit of this system is to be known from its declared end and design in the preamble, its spirit is to subvert and abolish all the powers of the state government, and to embrace every object to which any government extends.

As it sets out in the preamble with this declared intention, so it proceeds in the different parts with the same idea. Any person, who will peruse the 8th section with attention, in which most of the powers are enumerated, will perceive that they either expressly or by implication extend to almost every thing about which any legislative power can be employed. But if this equitable mode of construction is applied to this part of the constitution; nothing can stand before it.

This will certainly give the first clause in that article a construction which I confess I think the most natural and grammatical one, to authorize the Congress to do any thing which in their judgment will tend to provide for the general welfare, and this amounts to the same thing as general and unlimited powers of legislation in all cases.

BRUTUS, No. 15 (March 20, 1788)

I SAID in my last number, that the supreme court under this constitution would be exalted above all other powers in the government, and subject to no control. The business of this paper will be to illustrate this, and to show the danger that will result from it. I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible. Certain it is, that in England, and in the several states, where we have been taught to believe, the courts of law are put upon the most prudent establishment, they are on a very different footing.

The judges in England, it is true, hold their offices during their good behavior, but then their determinations are subject to correction by the house of lords; and their power is by no means so extensive as that of the proposed supreme court of the union.—I believe they in no instance assume the authority to set aside an act of parliament under the idea that it is inconsistent with their constitution. They consider themselves bound to decide according to the existing laws of the land, and never undertake to control them by adjuging that they are inconsistent with the constitution— much less are they vested with the power of giving equitable construction to the constitution.

The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed by them. But the judges under this constitution will control the legislature, for the supreme court are authorized in the last report, to determine what is the extent of the powers of the Congress; they are to give the constitution an explanation, and there is no power above them to set aside their judgment. The framers of this constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behavior, without following the constitution of England, in instituting a tribunal in which their errors may be corrected; and without adverting to this, that the judicial under this system have a power which is above the legislative, and which indeed transcends any power before given to a judicial by any free government under heaven.

I do not object to the judges holding their commissions during good behavior. I suppose it a proper provision provided they were made properly responsible. But I say, this system has followed the English government in this, while it has departed from almost every other principle of their jurisprudence, under the idea, of rendering the judges independent; which, in the British constitution, means no more than that they hold their places during good behavior, and have fixed salaries, they have made the judges independent, in the fullest sense of the word. There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself. Before I proceed to illustrate the truth of these assertions, I beg liberty to make one remark—Though in my opinion the judges ought to hold their offices during good behavior, yet I think; it is clear, that the reasons in favor of this establishment of the judges in England, do by no means apply to this country.

The great reason assigned, why the judges in Britain ought to be commissioned during good behavior, is this, that they may be placed in a situation, not to be influenced by the crown, to give such decisions, as would tend to increase its powers and prerogatives. While the judges held their places at the will and pleasure of the king, on whom they depended not only for their offices, but also for their salaries, they were subject to every undue influence. If the crown wished to carry a favorite point, to accomplish which the aid of courts of law was necessary, the pleasure of the king would be signified to the judges. And it required the spirit of a martyr, for the judges to determine contrary to the king’s will.— They were absolutely dependent upon him both for their offices and livings. The king, holding his office during life, and transmitting it to his posterity as an inheritance, has much stronger inducements to increase the prerogatives of his office than those who hold their offices for stated periods, or even for life. Hence the English nation gained a great point, in favor of liberty. When they obtained the appointment of the judges, during good behaviour, they got from the crown a concession, which deprived it of one of the most powerful engines with which it might enlarge the boundaries of the royal prerogative and encroach on the liberties of the people. But these reasons do not apply to this country, we have no hereditary monarch; those who appoint the judges do not hold their offices for life, nor do they descend to their children. The same arguments, therefore, which will conclude in favor of the tenor of the judge's offices for good behavior, lose a considerable part of their weight when applied to the state and condition of America. But much less can it be shown, that the nature of our government requires that the courts should be placed beyond all account more independent, so much so as to be above control.

I have said that the judges under this system will be independent in the strict sense of the word: To prove this I will show—That there is no power above them that can control their decisions, or correct their errors. There is no authority that can remove them from office for any errors or want of capacity, or lower their salaries and in many cases their power is superior to that of the legislature.

1^st. There is no power above them that can correct their errors or control their decisions—The adjudication’s of this court are final and irreversible, for there is no court above them to which appeals can lie, either in error or on the merits.—In this respect it differs from the courts in England, for there the house of lords is the highest court, to whom appeals, in error, are carried from the highest of the courts of law.

2d. They cannot be removed from office or suffer a diminution of their salaries, for any error in judgment or want of capacity.

It is expressly declared by the constitution,— "That they shall at stated times receive a compensation for their services which shall not be diminished during their continuance in office."

The only clause in the constitution which provides for the removal of the judges from offices, is that which declares, that "the president, vise-president, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors." By this paragraph, civil officers, in which the judges are included, are removable only for crimes. Treason and bribery are named, and the rest are included under the general terms of high crimes and misdemeanors.—Errors in judgment, or want of capacity to discharge the duties of the office, can never be supposed to be included in these words, high crimes and misdemeanors. A man may mistake a case in giving judgment, or manifest that he is incompetent to the discharge of the duties of a judge, and yet give no evidence of corruption or want of integrity. To support the charge, it will be necessary to give in evidence some facts that will show, that the judges committed the error from wicked and corrupt motives.

3d. The power of this court is in many cases superior to that of the legislature. I have showed, in a former paper, that this court will be authorized to decide upon the meaning of the constitution, and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it. In the exercise of this power they will not be subordinate to, but above the legislature. For all the departments of this government will receive their powers, so far as they are expressed in the constitution, from the people immediately, who are the source of power. The legislature can only exercise such powers as are given them by the constitution, they cannot assume any of the rights annexed to the judicial, for this plain reason, that the same authority which vested the legislature with their powers, vested the judicial with theirs—both are derived from the same source, both therefore are equally valid, and the judicial hold their powers independently of the legislature, as the legislature do of the judicial.— The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature. In England the judges are not only subject to have their decisions set aside by the house of lords, for error, but in cases where they give an explanation to the laws or constitutions of the country, contrary to the sense of the parliament, though the parliament will not set aside the judgment of the court, yet, they have authority, by a new law, to explain a former one, and by this means to prevent a reception of such decisions. But no such power is in the legislature. The judges are supreme—and no law, explanatory of the constitution, will be binding on them.

From the preceding remarks, which have been made on the judicial powers proposed in this system, the policy of it may be fully developed.

I have, in the course of my observation on this constitution, affirmed and endeavored to show, that it was calculated to abolish entirely the state governments, and to melt down the states into one entire government, for every purpose as well internal and local, as external and national. In this opinion the opposers of the system have generally, agreed—and this has been uniformly denied by its advocates in public. Some individuals indeed, among them, will confess, that it has this tendency, and scruple not to say, it is what they wish; and I will venture to predict, without the spirit of prophecy, that if it is adoption without amendments, or some such precautions as will ensure amendments immediately after its adoption, that the same gentlemen who have employed their talents and abilities with such success to influence the public mind to adopt this plan, will employ the same to persuade the people, that it will be for their good to abolish the state governments as useless and burdensome.

Perhaps nothing could have been better conceived to facilitate the abolition of the state government than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only; so that a series of determinations will probably take place before even the people will be informed of them. In the meantime all the art and addresses of those who wish for the change will be employed to make converts to their opinion. The people will be told, that their state officers, and state legislatures are a burden and expense without affording any solid advantage, for that all the laws passed by them, might he equally well made by the general legislature. Is to those who will be interested in the change, be added, those who will be under their influence, and such who will submit to almost any change of government, which they can he persuaded to believe will ease them of taxes, it is easy to see, the party who will favor the abolition of the state governments would be far from being inconsiderable.—In this situation, the general legislature, might pass one law after another, extending the general and abridging the state jurisdictions, and to sanction their proceedings would have a course of decisions of the judicial to whom the constitution has committed the power of explaining the constitution.—If the states remonstrated, the constitutional mode of deciding upon the validity of the law, is with the supreme court, and neither people, nor state legislatures, nor the general legislature can remove them or reverse their decrees.

Had the construction of the constitution been left with the legislature, they would have explained it at their peril; if they exceed their powers, or fought to find, in the spirit of the constitution, more than was expressed in the letter, the people from whom they derived their power could remove them, and do themselves right; and indeed I can see no other remedy that the people can have against their rulers for encroachments of this nature. A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people choose at stated periods, should have the power in the last resort to determine the sense of the compact; if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to control them but with a high hand and an outstretched arm.

BRUTUS

The Constitution of the United States and Other Founding Documents