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it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this all the reservations of particular rights or privileges would amount to nothing.” 1
Since writing his original attack on the power of the Supreme Court to set aside acts of Congress for nonconformity with the organic law, Governor Pennoyer has written a reply 2 to a criticism of his article made by Lafon B. Allen, Esq., of Louisville, Ky. The present writer had hoped that Mr. Pennoyer would embrace that opportunity to fortify his position by presenting some new ideas and possibly citing some authority for the very radical attitude he has assumed on this question. This he has not done. Having advanced the somewhat bold proposition that the question as to whether a law is constitutional or unconstitutional, is not a judicial one, Mr. Allen takes him to task for failing to show on logical grounds wherein the question is not judicial. For answer Mr. Pennoyer first cites the section of the constitution requiring members of Congress to take an oath to support the constitution. “ Under that provision of the constitution, it becomes the solemn and imperative duty,” says Mr. Pennoyer, “of the members of Congress in obedience to their oath of office, to pass upon the constitutionality of every measure brought before the two Houses.” Ergo, the question of constitutionality is a legislative and not a judicial one. answer to that complaint,”. concludes the Governor. As well might it be said that because the newly arrived immigrant on receiving his first papers” takes the same oath, that therefore the Supreme Court has not the power to declare void an act of Congress passed in excess of its powers. All executive officers are bound by an oath to support the constitution of the United States, but this is to be taken as a political oath.
6. It means that the officer will maintain the supremacy and inviolability of the constitution against disruption by domestic intrigue or foreign invasion.” . It does not mean to takeway from any a co-ordinate branch of the government a single one of its prerogatives, especially one so vitally affecting the public safety as
66 This is my
1 Federalist, No. 78.
4 The Sugar Bounty Case, a Review,” etc., by H. Campbell Black, Am. Law Review, Vol. XIX, No. 6.
the power of the judiciary to stand between the legislature and an infraction of that instrument upon which all our liberties depend.
As proof positive that the constitution-makers did not intend to give to the judiciary the power under discussion, Mr. Pennoyer again urges the fact that the plan of Randolph's sketch to join the President with the judiciary as a council of revision having a negative on the legislature was thrice voted down. This of course proves nothing. The delegates, as indeed it appears from the speeches of Martin and Gerry, quoted above, and others who opposed the plan, may well have intended the power to declare void unconstitutional acts of Congress to reside in the judges, and yet have been unwilling to give them this double negative on the law-making power. It was contemplated by the movers of that plan, that the council of revision should have the power of setting aside acts of Congress, not alone for unconstitutionality, but on motives of policy, on the ground that they were harsh, unjust and oppressive. The plan was favored by some of the ablest statesmen in the convention, amongst them Madison, Morris and Wilson. But, a majority thought that the plan involved an improper admixture of powers. As was expressly said by Gerry, Martin and others quoted above, in opposition to the plan, it was considered that the judiciary had a sufficient check against legislative encroachments by its exposition of the laws which involved a power of deciding on their constitutionality. The plan was accordingly defeated. The wisdom of this action of the convention has never been questioned. It simply proves that the delegates were unwilling to give the judiciary the power to pass on the policy or reasonableness of laws, a power it has never attempted to exercise, but always expressly disclaimed and this is all it proves.
Mr. Pennoyer devotes the rest of his reply to an assault on the statesmanship of Mr. Hamilton, whom he calls - the one off ox in the whole convention, always going 'gee' when the rest came · haw.'” His utterances in the Federalist in support of this power of the judiciary seem to be the head and front of his offending. To James Madison, however, the learned Governor points as a paragon of statesmanship. Him, he pronounces
one of the real framers of that instrument (the constitution), and he goes to some pains to show that during Madison's declining years he had deprecated some policy or other of Hamilton's. But why this adulation of Madison at the expense of Hamilton? The reason is found in the remark made by Madison in the debate of August 27th, which Mr. Pennoyer seems to think helps his cause wonderfully. Madison on that occasion saying he doubted whether “it was not going too far to extend the jurisdiction of the court generally to cases arising under the constitution, and whether it ought not to be limited to " cases of a judiciary nature.” That the words “ of a judiciary nature" do not militate against the power of the court to set aside void acts of Congress has already been noticed. But that Madison of all the delegates should have meant to give them this effect is inconceivable. All his efforts were directed toward extending the power of the judiciary and limiting that of the legislature.
Is it possible that Mr. Pennoyer could have overlooked the fact that three times did Mr. Madison second the plan so obnoxious to him for giving the judiciary and the executive as a revisionary council an absolute negative on the legislature?
Mr. Madison spoke in favor of this plan on no less than three different occasions, and his sentiments toward the judiciary were there given the fullest exposition. In the debate of July 21st, he spoke as follows: 1
It (the revisionary council) would be useful to the judiciary department by giving it an additional opportunity of defending itself against legislative encroachments. It would be useful to the executive, by inspiring additional confidence and firmness in exerting the revisionary power. It would be useful to the legislature by the valuable assistance it would give in preserving a consistency, conciseness, perspicuity, and technical propriety in the laws - qualities peculiarly necessary, and yet shamefully wanting in our republican codes. It would, moreover, be useful to the community at large, as an additional check against a pursuit of those unwise and unjust measures which constituted 80 great a portion of our calamities. If any solid objection could be urged against the motion, it must be on the supposition that it tended to give too much strength, either to the executive or judiciary. He did not think there was the least ground for this apprehension. It was much more to be apprehended, that, notwithstanding this co-operation of the two departments, the legislature would still be an overmatch for them. Experience in all the States
had evinced a powerful tendency in the legislature to absorb all power into its vortex. This was the real source of danger to the American constitutions, and suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles.
In view of these sentiments so often and forcibly expressed by Mr. Madison, it is difficult to see how Mr. Pennoyer can construe his isolated remark in favor of limiting the courts' jurisdiction to “ cases of a judiciary nature” as having been made in derogation of the courts' power to expound the constitution. 1
The idea of law carries with it the idea of its interpretation ; it is for this that courts are established. To interpret laws requires the skill of a trained expert. It is no part of the qualifications required of members of the legislature that they be learned in the law. It is in no sense a judicial body. It is large, unwieldy and subject to factional disturbances. Having made the law, it would hardly be expected that it would construe it with the calm disinterestedness of a court of justice.2 In the convention it was agreed that the greatest danger to the Republic lay in encroachments by the legislature. It is not the most rational presumption that this is the body which the drafters of the constitution intended to vest with the power of expounding it.
It has been contended that because the constitution does not go into detail and in so many words say that the Supreme Court shall have this power, that therefore it does not exist. The convention was an assemblage of lawyers. There was an uniform desire on the part of the delegates to refrain from stuffing the instrument with matter necessarily implied; when it was proposed that a provision be made against ex post facto laws, Mr. Ellsworth opposed it, saying: “ There was no lawyer and no civilian who would not say that ex post facto laws were void of themselves.” And James Wilson said: “ It will bring reflec
1 Any further doubts as to what were Mr. Madison's views on this question should be settled by his utterances in the Virginia ratifying convention cited supra.
2 Federalist, No. 81; Speech of
Madison, Elliott's Debates, Vol. V.,
3 V. Elliott's Debates, 344-349.
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tions on the constitution and proclaim that we are ignorant of the first principles of legislation.” 1
“No constitution can contain an accurate detail of all its powers and of all the means by which they might be carried into execution. It would render it too prolix. Its nature requires that only the great outlines be marked and its important objects designated and all the minor ingredients left to be deduced from the nature of those objects.'
The English Parliament has been cited as an example of a legislature which is omnipotent and subject to no revision. It is true that Parliament is of unlimited authority.
66 It can repeal Magna Charta in exactly the same way as it can a highway act, or reduce the tax on tobacco." 3 But it is submitted that there is no real analogy between Congress and Parliament. The English constitution, so called, had its origin in the forests of Germany. It is based on immemorial custom and usage. “ The rights of free Englishmen” have been prescribed for for centuries. The Parliament consists of three orders, King, Peers and Commons, each having separate interests and each constituting a check on the other. There are no such checks within Congress. When our constitution was adopted the country was new and sparsely settled; there were no traditions, no precedents; there was no king; no landed aristocracy, no primogeniture to keep the lands concentrated in great families; all were equal; of all the English institutions, the Commons alone remained. It is obvious that it was impossible to follow English models to the extent of giving the law-making power that pre-eminence which by reason of the accidental mixture of the three great classes, it enjoys in England.
The charge that the Supreme Court in setting aside acts of Congress for unconstitutionality has made a “grab of jurisdiction” is hardly justified by the rules it has laid down for its own government. For example the court ordinarily will not declare
1 Ibid. 463.
Bryce American Commonwealth,