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"It is emphatically the province and duty of the judicial department to say what the law is," declares Chief Justice Marshall in Marbury versus Madison,

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.

The conclusion was that a legislative act deemed by the courts to transcend the constitution was void for all purposes. The result, of course, was to give the courts a final veto upon legislation-a position according to Professor McLaughlin

in every way consonant with the political and philosophical thought of the Revolutionary era.

This political philosophy resulted from

the fact that the main contention of the Americans was that Parliament was not possessed of absolute authority: the belief that there were certain principles of right and justice which all governments must consider and that the obligation to consider them constituted a legal limitation on governmental authority; the assertion that these fundamentals were embodied in the English constitution, which was fundamental and unchangeable because it embodied these fundamental and unchangeable principles; the conviction that the courts were under obligations to declare void an act of Parliament violating the principles of natural jusiice and reason, a conviction supported by reference to English decisions and opinions of great judges; a declaration, closely connected with the proceding, that there is a fundamental law which the legislatures cannot change, a principle, however, which did not come by any means solely through a perusal of English authority and legal decisions, but from text-writers of continental Europe who embodied the principles of philosopbic thinking; the separation of powers of government and the independence of the judiciary, which led the courts to believe that they were not bound in their interpretation of the Constitution by the decision of a collateral branch of the government.

51 Cranch, 137 (1803).

6 The Courts, the constitution and Parties, reviewed by Thos. R. Powell, 27 Political Science Quarterly, 682.

Xot superiority to the legislature, but merely complete inde. pendence of it was the theory upon which the courts based this belief. It was in theory a natural corrolary to the doctrine of

. the separation of powers; in practice it has produced judicial supremacy.

In 1878, Chief Justice Waite, discussing the use of the judicial function of declaring statutes unconstitutional, said,

Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt.


Of late years, however, there has been a decided tendency on the part of the courts to extend this power to pretty much any act which the court has considered inadvisable.'

The change of attitude on the part of the courts is doubtless due in part to the vast increase of statute laws which are often radical in nature and carelessly drawn. Such vague constitutional clauses as “due process of law” and “equal protection of the laws" furnish adequate opportunity for, if, indeed, they do not compel, interpretation according to the personal predilections of the judges. The numerous constitutional restrictions upon the legislature, especially those of formal and technical character, regulating the passage of laws, have, of course, rendered the task of determining whether acts are constitutional one of greater frequency and difficulty.

The validity of the doctrine of judicial review has of late been widely questioned. Its severest critics have been represent. atives of the awakening forces of industrial democracy, who have seen legislation which they have advocated time after time declared unconstitutional for reasons that seemed vague and unconvincing. On the other hand the doctrine has been staunchly defended by exponents of the established order of

7In The Sinking-fund Cases, 99 U. S., 700 (718). See Cooley, Constitutional Limitations, for canons of judicial interpretation.

*Dodd, W. F., The Growth of Judicial Power, 24 Political Science Quarterly, 193 (1909).

*Justice Harlan in the opinions delivered in 1903 and 1905 (Atkin v. Kansas, 191 U. S., 223; Lochner v. v. Y., 198 U. S., 45 [74]) used almost identically the same language in discussing the proper extent of judicial review,- "No evils arising from such legislation could be more far-reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people's representatives." But in the former he delivered the opinion of the court, in the latter a dissenting opinion, Some. times, as in the case of the Sherman anti-trust law, statutes are framed with the expectation that the courts will, in interpreting them, give them definite meaning.


things who have seen in it a defence against novel laws that infringe upon what they are pleased to consider their sacred rights of liberty and property.

Professor Burgess has called this judicial supremacy “the most momentous product of modern political science," upon which, "far more than upon anything else depends the permanent existence of republican government.” On the other hand, it has been considered unrepublican because it really gives to the courts the final power in legislation. The representatives of the people in the legislature should, it is argued, be their own interpreters of their own powers under the constitution. In practice the doctrine of judicial review makes the courts—not always even elected by the people—the arbiters between the forces of democracy and the forces of property. "The fundamental division of powers in the Constitution of the United States," says President Hadley, "is between the voters on the one hand and the property-owners on the other.”

The state constitutions occasionally reflect one side or the other of the discussion. The constitution of Georgia? boldly declares that acts violating it are void and that the judiciary shall so declare them. Iowa and Rhode Island, also declare acts inconsistent with their constitutions to be void. Four states, Colorado, Ohio, South Carolina and Virginia,+ on the

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1In Political Science Quarterly, X, 422.

21, sec. IV, 2. Furthermore (VI, sec. II, 9) if a question as to the construction of a provision of the constitution of the state or of the United States, or as to the constitutionality of an act of the legislature arises in a case pending in an appellate court, the court sball so certify to the Supreme Court, and send also a transcript of the record, and await instructions. If, however, by reason of an equal division of opinion no instructions are given, the appellate court may decide the question.

3XI, 1 ; IV, 1.

40. (IV', 2),-No law to be held unconstitutional by highest court without concurrence of at least all but one of judges, except in affirmance of judgment of intermediate court of appeals declaring law unconstitutional.

Colo. (VI, 1. 5).- Decision of highest court in case involving construction of state or federal constitution to be by court en bane. See also, infra, next note

S. C. (V, 12).-If it appears to justices of highest court, or any three of them, that question of coastitutional law is involved on which entire court has not agreed, the chief justice, or in his absence presiding associate justice, shall call to assistance of highest court all the judges of the circuit courts. Decision of majority of justices and judges sitting to be final and conclusive. If number qualified to sit constitute even number, one of circuit judges, determined by lot, sball retire.

Va. (VI, 88),—Assent of at least three judges of highest court necessary to declare that a law is or is not repugnant to state or federal constitution : if not more than two judges sitting agree and case cannot be determined without passing on the question, no decision to be rendered, but case to be reheard by full court; and in no case where jurisdiction depends solely upon fact that constitutionality of a law is involved shall court decide case upon merits unless decision of appellant upon constitutional question is sustained. The supreme court consists of five judges, any three of whom may ordinarily hold a court.

195. Recall of

other hand, provide that decisions declaring statutes unconstitutional must be concurred in by a larger majority of the judges or by a fuller court than is required for decisions in general.

Colorado furthermore, has a unique provision whereby decisions of the court declaring void legislative enactments or Judicial

Decisions. charters of cities of the first and second classes, may be reviewed and confirmed or rejected by the people of the state or of the cities. This most interesting of expedients for bringing the interpretation of law more nearly into accord with popular desires is the so-called recall of judicial decisions. In theoretical discussion the term properly

applies only to the decisions of state courts declaring unconstitutional, under the due-process clause of a state constitution, a state statute passed in the police power.

It permits a referendum on the question whether the statute shall be the law of the state notwithstanding the adverse decision, but does not disturb the specific judgment or decree. Proponents of the recall of judicial decisions contend that it furnishes a method of securing popularly-demanded laws greatly to be preferred to constitutional amendment. An amendment must be general and would deprive the courts of the possibility of declaring void uncalled for and unjust acts as well as those that are needed. The recall reserves for the people the function of passing upon each individual act. Long before the movement for direct popular supervision of 196.

Sociological judicial decisions was begun, students of sociology and economics Jurispruhad been endeavoring to develop a theory of jurisprudence that should consider the law as one of the many closely-related social sciences. They would divorce it from its traditions and make


"VI, 1. Power to declare law or city charters or amendments thereto, adopted by people in cities acting under article XX of constitution, in violation of constitution of state or of United States, confined to highest court; decision filed with clerk of highest court within ten days; decision not binding until sixty days after filing; if within period of sixty days petition signed by five per cent. of qualified electors of state, or in case of charter, or amendment thereto, by five per cent. of qualified electors of city or city and county, shall be filed with secretary of state, or, in case of city, with legislative body of said city or city and county, requesting measure to be submitted to people, measure to be so submitted ; if law approved by majority of votes cast thereon to take effect from and after date of declaration of vote there on by proclamation by governor not less than thirty days after vote canvassed : if charter or amendment approved by majority of votes cast thereon, to take effect from and after date of declaration of vote thereon by proclamation of legislative body of city or city and county ; not less than thirty days after vote canvassed.

See 27 Political Science Quarterly, 682, seq.

of it both a study of the needs and desires of the people and a means for their expression. They would make the courts as emphatically the guardians of the rights of all the people and of groups of people as they are the protectors of the rights of private individuals.

"The main problem to which sociological jurists are addressing themselves today," says Professor Pound,"


is to enable and to compel law-making, and also interpretation and application of legal rules, to take more account, and more intelligent account, of the social facts upon which law must proceed and to which it is to be applied.

Their insistence, he adds, is chiefly upon six points:

(1) The first is study of the actual social effects of legal institutions and legal doctrines.

(2) The second is sociological study in connection with legal study in preparation for legislation.

(3) The third is study of the means of making legal rules effective.

(4) A means toward the end last considered is a sociological legal history; that is, study not merely of bow doctrines have evolved and developed, considered solely as jural materials, but of what social effects the doctrines of the law have produced in the past and how they have produced them.

(5) Another point is the importance of reasonable and just solutions of individual causes, too often sacrificed in the immediate past to the attempt to bring about an impossible degree of certainty.

(6) Finally, the end, toward which the foregoing points are but some of the means, is to make effort more effective in achieving the purposes of law.

Constitution-makers by emphasizing social rights instead of merely individual rights may do much to assist in the development of a jurisprudence that is capable of expressing the current popular will.

?The Scope and Purpose of Sociological Jurisprudence-XXIV Harvard Law Review, 591; XXV, 140, 489 (512, seq.) See, also Prof. Pound's article, Lac in Books and Laro in Action, American Law Review, XLIV, 12.

&The important part of our system is not the trial judge who dispenses justice to litigants but the judge of the appellate court who uses the litigation as a means of developing the law; and we judge the system by the output of written opinions and not by the actual results inter partes in concrete causes. But the life of the law is in its enforcement. Serious scientific study of how to make our huge annual output of legislation and judicial interpreiation effective is imperative."

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