LIMITS TO THE EXERCISE OF JUDICIAL REVIEW
Because judicial review is an outgrowth of the fiction that courts only declare what the law is in specific cases,[269] and are without will or discretion,[270] its exercise is surrounded by the inherent limitations of the judicial process and notably the necessity of a case or controversy between adverse litigants with a standing in court to present the issue of unconstitutionality in which they are directly interested. The requisites to a case or controversy have been treated more extensively above, but it may be noted that the Supreme Court has repeatedly emphasized the necessity of "an honest and actual antagonistic assertion of rights by one individual against another,"[271] and its lack of power to supervise legislative functions in friendly proceedings, moot cases, or cases which present abstract issues.[272]
The Doctrine of "Strict Necessity"
But even when a case involving a constitutional issue is presented, the Court has repeatedly stated that it will decide constitutional questions only if strict necessity requires it to do so. Hence constitutional issues will not be decided in broader terms than are required by the precise state of facts to which the ruling is to be applied; nor if the record presents some other ground upon which to decide the case; nor at the instance of one who has availed himself of the benefit of a statute or who fails to show he is injured by its operation; nor if a construction of the statute is fairly possible by which the question may be fairly avoided.[273] Speaking of the policy of avoiding the decision of constitutional issues except when necessary Justice Rutledge, speaking for the Court, declared in 1947: "The policy's ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system."[274]
The Doctrine of Political Questions
A third limitation to the exercise of judicial review is the rule, partly inherent in the judicial process, but also partly a precautionary rule adopted by the Court in order to avoid clashes with the "political branches," is that the federal courts will not decide "political questions."[275]
The "Reasonable Doubt" Doctrine
A fourth rule, of a precautionary nature, is that no act of legislation will be declared void except in a very clear case, or unless the act is unconstitutional beyond all reasonable doubt.[276] Sometimes this rule is expressed in another way, in the formula that an act of Congress or a State legislature is presumed to be constitutional until proved otherwise "beyond all reasonable doubt."[277] In operation this rule is subject to two limitations which seriously impair its efficacy. The first is that the doubts which are effective are the doubts of the majority only. If five Justices of learning and attachment to the Constitution are convinced that the statute is invalid and four others of equal learning and attachment to the Constitution are convinced that it is valid or are uncertain that it is invalid, the convictions of the five prevail over the convictions or doubts of the four, and vice versa. Second, the Court has made exceptions to this rule in certain categories of cases. At one time statutes interfering with freedom of contract were presumed to be unconstitutional until proved valid,[278] and more recently presumptions of invalidity have appeared to prevail against statutes alleged to interfere with freedom of expression and of religious worship, which have been said to occupy a preferred position in the Constitution.[279]
Exclusion of Extra-Constitutional Tests
A fifth maxim of constitutional interpretation runs to the effect that the Courts are concerned only with the constitutionality of legislation and not with its motives, policy or wisdom, or with its concurrence with natural justice, fundamental principles of government, or spirit of the Constitution.[280] In various forms this maxim has been repeated to such an extent that it has become trite and has increasingly come to be incorporated in constitutional cases as a reason for fortifying a finding of unconstitutionality. Through absorption of natural rights doctrines into the text of the Constitution, the Court was enabled to reject natural law and still to partake of its fruits, and the same is true of the laissez faire principles incorporated in judicial decisions from about 1890 to 1937. Such protective coloration is transparent in such cases as Lochner v. New York[281] and United States v. Butler.[282]