The power to declare laws unconstitutional.
The Supreme Court’s Power.—Congress, as has been pointed out, is the lawmaking branch of the federal government. With the approval of the President its power to enact laws, within the limits prescribed by the constitution, is complete and final. The state legislatures are the lawmaking organs of state government and with the approval of the governors the authority of the state legislatures to make laws within limits prescribed by the national and state constitutions is also complete and final. Yet the Supreme Court, by a majority vote of its nine justices, may nullify laws passed by either Congress or the state legislatures. It has done so on many occasions. Why have we given to this small group of men, appointed for life, the power to set aside the action of the people’s representatives?
Reason for this authority.
The answer is this: American government, both in the nation and in the states, rests upon certain fundamental rules which are embodied in written constitutions. These rules determine, among other things, the powers and functions of government officers and bodies, including Congress and the legislatures. They have been placed in the national and state constitutions with the intent that they shall be obeyed, and if they were not obeyed one branch of the government would be encroaching upon the powers of the other. But how can powerful bodies like Congress and the state legislatures be held to the obedience of rules laid down in the national constitution? The Supreme Court performs this duty by declaring “unconstitutional” any law which, in its judgment, violates the provisions of that document. The constitution, for example, provides that Congress shall pass no bill of attainder. If Congress should enact a measure of that kind, the court would nullify it. The constitution stipulates that no state shall make any law impairing the obligations of contract. If any state legislature should enact such a law, the Supreme Court would declare it to be unconstitutional and void.
Limitations upon the discretion of the court.
Now this does not mean that the justices of the Supreme Court have the right to veto any measure at their discretion. They have nothing to do with the merits of a measure, nothing to do with the question whether it has been wisely passed. The only issue they decide is whether a law conforms to the provisions of the constitution. If they find that it does not, they have authority to set it aside. And so long as government is based upon written constitutions there must be some body with power to decide whether a law is constitutional or not. Every branch of the government is under a natural temptation to extend its own authority. State legislatures would like to have a share in regulating the trunk railroads; Congress would like to decide how much money may be spent by candidates for senatorial nominations. Both of them have tried to extend their authority in these directions during the past few years although the constitution does not warrant their so doing. We must have some body, therefore, endowed with the right to say to all public officials and legislative bodies: “Thus far shall you go and no further; here is the point where your authority, under the constitution, comes to an end.”
The Supreme Court’s power is essential.
It is quite true that decisions of the Supreme Court are sometimes unpopular. People who are eager for humanitarian reforms, when they see the Supreme Court annulling measures which Congress has passed to protect women or children, or the weak or the poor, are in the habit of crying out that the court is an obstacle to progress and that its power to declare laws unconstitutional should be taken away. They overlook the fact that if there were no supreme tribunal to keep Congress within its constitutional limits, it would be easy for Congress, step by step, to take away all the powers now possessed by the states and to centralize at Washington the entire government of the country. Under a federal system of government, with powers divided between the nation and the states as they are in this country, disputes as to where a particular power belongs are sure to arise. How could we devise a more satisfactory plan of deciding these disputes than by referring them to an impartial body of nine men chosen for life from among the ablest jurists of the land? Do we propose to abolish the powers of juries because they sometimes render unpopular verdicts? People sometimes question the wisdom of the Supreme Court, but no one has ever doubted its integrity.[[139]]
Scope of the federal courts’ jurisdiction.
How Cases Come Before the Federal Courts.—The authority to try cases is divided by the national constitution into two parts, and each part is assigned to two separate systems of courts. Certain classes of cases are named in the national constitution as falling within “the judicial power of the United States” and these cases are tried in the federal courts. All other classes of cases (and this includes the great majority of legal disputes) are left to the state courts. The controversies named in the national constitution as matters for trial in the federal courts are those which it did not seem wise to let the various state courts decide, for example, cases arising out of treaties made by the United States, or controversies between two states, or between citizens of different states. This is a wise arrangement, for if the state courts could say the last word on the interpretation of treaties, the nation might easily find itself forced into trouble with foreign countries. If cases between citizens of different states were tried in the courts of either state, there would be a temptation for these courts to favor their own citizens. Even the rule which requires that cases affecting ambassadors shall be heard in the federal courts has a good reason, for the United States guarantees to all foreign ambassadors the privileges of international law and must be in a position to see that these guarantees are respected. The entire list of cases over which federal courts have jurisdiction is so clearly set forth in the constitution that there is no need for repeating it here.[[140]]