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the procedure of all courts, a prior hearing is an essential element, are stated in the letter to Mr. Rodenbeck. Reasons based on other constitutional principles may be summarized as follows:
A capital element in American constitutional theory has always been the idea that to save all the people from governmental oppression working upon them one by one through the courts, subtly, under the guise of adjudication, it is · necessary that the courts should be confined strictly to the business of adjudicating lawsuits and that the legislative and executive powers of government should be vested in distinct bodies of men responsible at frequent intervals directly to the people. In no other way can the fact that judges hold office for life or for long terms of years and the fact that their salaries are irreducible and the fact that they are responsible to nobody for official action not tainted with moral turpitude, be explained or justified. This idea is expressed in the Constitution of the United States and in the Constitution of New York and, as is believed, in the constitutions of all the States, by what is known as the classifica- i tion of governmental powers and the distribution of them to distinct bodies of men.
Having regard, then, to the constitutional classification of powers, is it not plain that the power of making laws which in Kuhn v. Fairmont Coal Co., Justices Holmes, MeKenna and White, on no other authority than that of precedents and without any attention to constitutional principles, ascribed to State courts of last resort, really does not belong to those courts but is vested exclusively in the State Legislatures?
To which of the constitutional classes of governmental powers does the power assumed by the New York Court of Appeals in Reed v. McCord belong, namely: “supreme power to authoritatively declare and settle the law uniformly throughout the State?” Is it not plain that this, in the constitutional sense, is not a judicial power but is a
. legislative power and therefore vested exclusively in the Legislature of New York and not in the Court of Appeals?
If the Court of Appeals has that supreme legislative power its decision in a particular lawsuit, made upon hearing only the parties to that lawsuit and with nobody else having either the right or the opportunity to be heard, that a statute is unconstitutional, becomes legally effective whether the court's interpretation of the statute and of the Constitution is right or wrong, and if the interpretation is wrong the legal effect of the decision is to amend the Constitution. If the Court of Appeals has that supreme legislative power its decision in a particular lawsuit made upon a hearing only of the parties to that suit and with nobody else having either an opportunity or a right to be heard, purporting to declare in words the pre-existing customary law, becomes legally effective whether the declaration is correct or erroneous; so that if the declaration is erroneous the rights of the parties to the suit in which the declaration is made are determined by a new law operating retroactively, while in all future cases the lower courts must make their decisions upon the basis of this new law which, however, when it comes again to be considered in the Court of Appeals is liable to be repealed under the supreme legislative power of that court and the rights of the parties determined not by the law as they understood it at the time they acted and as it had been declared by the Court of Appeals, but by another new law operating retroactively.
Another capital element in American constitutional theory was developed and convincingly established by Chief Justice Marshall in the famous case of Marbury v. Madison.10. This is the idea that the people ought to be governed not by one law but by a gradation of laws, with the Constitution of the United States at the top of the scale and the unwritten customary laws of the several States at the bottom, and with treaties and statutes of the United States and the constitutions and statutes of the several States standing at the intermediate points in the scale; the effect of the gradation being that whenever the superior and inferior laws apply equally well to a particular case the adjudication must be determined by the superior law in entire disregard of the inferior law. Thus if the Constitution and a statute apply equally well to a particular case the adjudication must be determined by the Constitution and the statute disregarded. So if a constitutional statute and the unwritten customary law apply to a particular case the adjudication must be determined by the statute and the customary law disregarded. What is the true place of judicial precedents in American constitutional theory? At the top of the scale of laws or at the bottom? Put them at the bottom and you do nothing inconsistent with American constitutional theory as it has always heretofore been understood. Put them at the top and, necessarily, you dethrone the Constitution and constitutional statutes and in their place make the opinions of judges the supreme law of the land.
10 1 Cranch. 137, 177.
In Marbury v. Madison, Marshall's assertion of the power of the courts to decide the constitutionality of statutes and to declare what the law is, was scrupulously and carefully guarded so as to limit the power to the single purpose of adjudicating the particular lawsuit presently before the court. Recall exactly what he said:
"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply."
The constitutional amendment principle also prevents precedents from having the binding legal effect imputed to de court of las
legislatives of erroneous des
them by the opinions quoted in § 3 ante. Consistently with that principle, no erroneous interpretation of the Constitution, and no erroneous decision of the court of last resort, and no number of erroneous decisions by all the courts, and no legislative or executive practice however inveterate, and no lapse or acquiescence or laches of the people themselves however long continued, can have the effect of amending the Constitution. The Constitution as written, according to its true meaning, stands unchanged until amended by the people themselves in the prescribed mode and must be obeyed as supreme law by the courts and all other governmental agents, regardless of past errors, so soon as its true meaning in any way comes to their knowledge. The Constitution cannot be changed in any other than the prescribed way; but the understanding of its meaning by judges, lawyers and laymen may change and, with advancing knowledge, is likely to change from one generation to another and even from one case to the next succeeding case. This is manifestly true also of constitutional treaties and statutes.
The principle that every State within this Union ought to have a republican form of government and that it is the duty of Congress to guaranty to each State that form of government also stands in the way of giving to judicial precedents the legal effect imputed to them by the opinions quoted in § 3 ante. What is the republican form of government? The first constitutions adopted in this country by the several States when they declared their independence and the Constitution of the United States leave no doubt as to the true answer to this question. The constitutional principles which have been enumerated here are essential elements of that form of government; so that, to preserve the substance of a republic within the form, it is necessary that they should not be capable of being undermined constitutionally in the way indicated by the opinions quoted in § 3 ante. Those opinions point straight to the ultimate but stealthy conversion of our republics into oligarchies not al
together unlike the one which once ruled Venice, but probably more like the one which for centuries has ridden on the necks of the people of Great Britain and Ireland and which once oppressed the American colonists.
We sometimes see a cheese which on the outside looks good but within is perforated by maggots. Shall such be the fate of our fair-seeming constitutions?
§ 5. The principles on which the proposal rests are not merely the very bones of all our constitutions but they are accepted and admitted by everybody in this country, or nearly everybody, as the standards to which all plans for the legal, economic and social betterment of the people must be made to conform and as the common ground for the discussion of such plans. Their meaning in application to particular states of fact has been finely elucidated and clearly developed by many opinions of our highest courts. They will bear repetition. Here they are again:
First—The principle of a republican form of government having the following characteristics:
Second—The principle of a gradation of laws, which furnishes to legislators, judges, executives, economists and sociologists a brief general statement in writing of essential principles for the guidance of the ship of state, even as sea-going vessels are steered safely to their ports by observations of the sun and stars and magnetic pole:
Third—The principle of a distribution of governmental powers, preventing courts and every other agency of government from lawfully adopting and acting upon the maxim of tyrants, quod placet principi lex est, and making all legislators and executives responsible directly to the people at: frequent intervals:
Fourth—The principle of due process of law, which prevents all courts from the lowest to the highest, in all matters and at all times, from depriving any person of life,