The Essentials of American Constitutional Law

by Francis Newton Thorpe

That the people have an original right to establish for their future government such principles as in their opinion shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.... It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or that the Legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. Certainly all those who have framed written constitutions contemplate them as forming a fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the Legislature repugnant to the constitution is void.... 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 the 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.... Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which according to the principles and theory of our government is entirely void, is yet in practice completely obligatory.... It would be giving the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions,—a written constitution,—would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favor of its rejection.[273]

The conclusion of the whole matter is:

Thus the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.[274]

112. The federal (or the State) judiciary, while final judge of what the law is, is not the judge of what the law should be: such action would be a violation of judicial functions and an assumption of legislative functions.[275] The court in saying what the law is, that is, what it means, does not attempt to say what the law should be, that is, to make the law. Therefore it is perilous, as likely to embarrass the court, for the court to be subject to the call of the executive, or the legislative, to give an opinion “upon important questions of law, and upon solemn occasions.”[276] The peril lies in possible confusion of governmental functions, or, to use the constitutional term, “offices.” The American people have delegated judicial power to the courts: the people of the several States to their State courts; the people of the United States, to the federal courts; and “it is emphatically the province and duty of the judicial department to say what the law is.”

113. This province the American judiciary occupies, this duty it performs, with the result that it holds a unique place in political history. At no other time, among no other people, in no other form of government has the judiciary executed the office it executes in the American system of government.

It is the consciousness of the American people that law must rest upon justice and reason, that the constitution is a more ultimate formulation of the fundamental principles of justice and reason than mere legislative acts, and that the judiciary is a better interpreter of these fundamental principles than the Legislature,—it is this consciousness which has given such authority to the interpretation of the Constitution by the Supreme Court.[277]

Yet,—so remarks the Supreme Court itself,—

The slightest consideration of the nature, the character, the organization, and the powers of (federal) courts will dispel any fear of serious injury to the government at their hands. While by the Constitution the judicial department is recognized as one of the three great branches among which all the powers and functions of the government are distributed, it is inherently the weakest of them all. Dependent as its courts are for the enforcement of their judgments upon officers appointed by the executive and removable at pleasure, with no patronage and no control of the purse or the sword, their power and influence rest solely upon the public sense of the necessity for the existence of a tribunal to which all may appeal for the assertion and protection of rights guaranteed by the Constitution and by the laws of the land, and on the confidence reposed in the soundness of their decisions and the purity of their motives.[278]

114. To the question, “What is constitutional law in the United States?” the answer is, “Law as interpreted by the Supreme Court.” In other countries, and, generally speaking, in all countries at all times, until the institution of the political system of the United States,—the American system of government,—the supreme law of the land was the will of the executive (as in absolute monarchies), or the supreme will of the legislative (as in Great Britain). So long as the Supreme Court of the United States retains the confidence of the American people, the decisions of that Court will remain the authoritative exposition of American constitutional law.

It follows that the normal execution of the judicial office in America determines the meaning of American constitutional law; or stated in other words, in the decisions of the Supreme Court there are found the formulation of the principles on which law in America is founded, and the application of these principles in testing, as issues arise, the acts of the legislative and the services of the administrative. Therefore it is to the interpretation thus given by the judiciary that we turn for an understanding of the exercise of offices,—legislative, executive, or judicial, delegated as powers by the sovereign, the people of the United States. Whatsoever is done, by either (so-called) department of government in conformity with this delegation of powers is constitutional; and whatsoever is done by either department in conflict with this delegation of powers is unconstitutional. Whether constitutional or unconstitutional it is the exalted and unique office of the Supreme Court to determine. This Court therefore touches American life at every point. Exhaustive examination of its interpretation principles, laws, judicial decisions, arguments of counsel, opinions of experts, writings of jurists, and the history of society,—and such examination alone, answers the question, “What is constitutional law in America?”