Magna Carta, and Other Addresses

by William D. Guthrie

Not only are the decisions of the courts constantly distorted and misrepresented, but the people are also being taught that the courts have usurped the power to declare void any statute in conflict with the constitution, and that no such power was ever intended to be conferred by the framers of national or state constitutions. Surely by this time it ought to be manifest that if the courts may not adjudge invalid and refuse to give force and effect to unconstitutional enactments, it is of little or no use to declare in constitutions that legislatures shall not pass bills of attainder, or ex post facto laws, or laws abridging the freedom of speech, or of the press, or prohibiting the free exercise of religion, or denying the right to trial by jury, or imprisoning without trial, or suspending the writ of habeas corpus, or confiscating private property.

Speaking on this subject of judicial power and duty, Hamilton in the "Federalist" used language which cannot be too often repeated. He clearly showed that in 1788 it was understood and contemplated that the courts should exercise the power to adjudge invalid any statute which was in conflict with the Constitution. In fact, such power had then already been exercised by state courts. He said that constitutional limitations "can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservation of particular rights or privileges would amount to nothing.... There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.... The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute; the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."[19]

Equally conclusive and equally worthy of constant repetition is the reasoning of Chief Justice Marshall in Marbury vs. Madison, where he said: "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limitations may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. 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."[20]

This decision of the Supreme Court to the effect that it is the duty and within the power of the courts to construe constitutions and to refuse to enforce unconstitutional enactments was rendered in 1803. Yet, notwithstanding that the Constitution of the United States has been amended four times since that decision, and that every state constitution has been again and again remodeled or amended, no American constitution has ever denied to the courts the power to construe constitutions or the duty to refuse to enforce statutes which are in conflict with constitutional limitations. If the power to declare void any statute in conflict with the Constitution of the United States was deemed necessary in 1788 when Hamilton was writing his famous essays, it certainly ought to be far more necessary in our day of multiform legislation, vast increase in the functions of the state, and incompetent, reckless and oppressive class legislation interfering in almost every conceivable manner with the rights and liberties of the individual.

Moreover, the Constitution of the United States would probably never have been adopted if the people had understood, as is now pretended, that Congress was to be at liberty to disregard constitutional limitations and guaranties and that there would be no way whatever of preventing a violation by Congress of the constitutional rights of the individual except at the polls. All students of our history know that the Constitution was accepted by the people upon the distinct pledge that amendments embodying a bill of rights to protect the individual against Congress would be immediately adopted. And one of the first acts of the First Congress in September, 1789, was to submit the ten amendments known as the federal bill of rights, which were thereupon ratified by the states and became an integral part of the Constitution. But of what avail or benefit were these amendments if Congress was not to be effectively restrained and bound by them? It is no exaggeration to say that if the courts should now be deprived of the power to protect litigants who invoke constitutional guaranties and should be compelled to enforce, as valid laws, statutes which violate the limitations upon legislative power which the people have deliberately embodied in their fundamental law, our constitutions would become dead letters, and we might as well turn to the pure and unrestrained democracy of Greece and await her fate.

In an inspiring address delivered this year before the New York State Bar Association on the subject of judicial decisions and public feeling, Senator Root eloquently said: "A sovereign people which declares that all men have certain inalienable rights, and imposes upon itself the great impersonal rules of conduct deemed necessary for the preservation of those rights, and at the same time declares that it will disregard those rules whenever, in any particular case, it is the wish of a majority of its voters to do so, establishes as complete a contradiction to the fundamental principles of our government as it is possible to conceive. It abandons absolutely the conception of a justice which is above majorities, of a right in the weak which the strong are bound to respect. It denies the vital truth taught by religion and realized in the hard experience of mankind, and which has inspired every constitution America has produced and every great declaration for human freedom since Magna Carta—the truth that human nature needs to distrust its own impulses and passions, and to establish for its own control the restraining and guiding influence of declared principles of action."

In many of the current assaults upon the judicial department, in support often of schemes having their birthplace on the continent of Europe, we find the complaint that in declaring statutes unconstitutional the courts in this country—state and federal—exercise greater power than the courts of other countries are authorized to exercise. As if that were an argument against American institutions! Every schoolboy knows that the framers intended that our government should differ from every other government in the world. The founders not only intentionally departed from the examples of existing governments, but anxiously sought to establish a new form of republican government, which would perpetuate the spirit of the Declaration of Independence, secure the inalienable rights of the individual, and protect the minority against the oppression or tyranny of the majority. It was because these rights of the individual against majorities and every form of governmental power were to be made secure and sacred, as the founders believed, that we were to differ from other governments. And the essential and effective feature of that difference was to lie in the power vested in the judicial department to uphold and protect these rights. High sounding declarations of the rights of man would mean very little if they were not to be enforceable by the courts.

When our form of government is compared with that of other countries, and we are told that in England or in France or elsewhere so-called progressive measures have been forced into immediate operation by the will of the majority, and that the courts there were powerless to interfere, is it seriously intended to suggest to the people of the United States that they should, therefore, cast aside all constitutional restraints, all their ancient and honest constitutional principles, and leave the protection of life, liberty and property wholly in the hands of the legislative branch? Are there not still certain rights which even those who are assailing our institutions, under the protection of the very Constitution they deride, would want to have protected by our courts? When it is urged that the courts should not have power to declare an act unconstitutional, but should be compelled to enforce all legislative enactments although some of them might conflict with the Constitution, is it realized that the bill of rights would then be left to the arbitrary discretion or caprice of the legislature, and that consequently it would be of no more practical protection to the individual than the paper constitutions of some of the South American republics which, too, contain eloquent declarations of the rights of the individual? Is it forgotten or overlooked that in England and France and all the other countries with whose systems of government ours is being compared, the legislative power is practically supreme, and that it can outlaw or disseize or imprison at its mere will—that it can deny religious liberty, abridge the freedom of speech or of the press, pass bills of attainder and ex post facto laws, suspend the writ of habeas corpus, impose cruel and unusual punishments, deny to the individual accused of crime the right to a jury-trial or even any hearing at all, confiscate private property without compensation, and impair the obligation of contracts?

Let us, for example, suppose that Congress or a state legislature saw fit to imprison those who did not profess the religion of the majority, or observe its forms and tenets. Who could then protect the minority against such tyrannical enactments except the courts, and how could the courts shield them save by declaring the statute unconstitutional and void and refusing to enforce it? We have only to go back a few generations to find just such laws in England and in the American colonies, and it is the repetition of them that our constitutions seek to prevent. Suppose again that Congress or a state legislature should pass a statute abridging the freedom of speech or of the press and making those who violated the statute subject to criminal prosecution and imprisonment. How could the individual be then protected except by the judiciary, and how could the judiciary protect him unless by exercising the power to declare the statute unconstitutional?

Do the agitators who are attacking our constitutional system explain to their listeners that in the foreign governments with which they are making comparisons the legislative power could compel workmen in any trade to work as many hours a day, at such rates of wages, and under such conditions as the majority saw fit to enact? Suppose that the Pennsylvania legislature should pass a statute compelling laborers in coal mines to labor twelve or more hours a day for a compensation fixed by it and providing that refusal should constitute a crime. Or similarly in the case of railroad employees. In doing so, the legislature would find a precedent in the famous English Statute of Labourers as well as in numerous other European enactments. The Pennsylvania legislature might pass an act, similar to that enacted by the British parliament in 1720 and again in 1800, making it a crime for laborers to combine to obtain an advance of wages or to lessen or alter their hours of work. Is it inconceivable that the time may come when the majority of the voters in Pennsylvania will believe that it is imperative thus to regulate labor in coal mines and on the railroads, both of which industries are indispensable, serve every household in the state, affect every individual, rich or poor, and compel all to pay tribute? Might not prejudice and self-interest tempt or impel to such a statute, and might not the majority enact it, particularly if those affected were aliens without political power? Is it inconceivable that the owners of the coal mines and the railroads may some day control a majority in the legislature? But how could these miners and railroad employees be protected from such enactments and criminal prosecutions thereunder unless the courts had the power to declare statutes unconstitutional and to refuse to enforce them because depriving the individual of his constitutional rights?