Website of Dr. Almon Leroy Way, Jr.





Page Two

RE: Judicial Review--The Function of the Courts Under the Constitution.

"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the 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 reservations 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.

"It is not ... to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. 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 [the courts] 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 to 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."

      Alexander Hamilton, Essay Number 78, THE FEDERALIST

RE: The U.S. Constitution, Acts of the Legislature, & the Function of the Courts.

"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 [branches, or organs] their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

"The government of the United States is of the latter description. The powers of the legislature are defined and limited, and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits 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.

"Certainly, all those who have framed written constitutions contemplate them as forming the 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 of the judicial department [branch], to say what the law is. Those who apply the [legal] rule to particular cases, must necessarily expound and inter- pret 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, conformable to the law, disregarding the Constitution; or conformable to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case: this is the very essence of judicial duty.

"If then, the courts are to regard the Constitution, and the constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

"... the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as the legislature.

"... 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 the other departments [branches, or organs], are bound by that instrument."

      John Marshall, Majority Opinion, MARBURY V. MADISON,
            U.S. Supreme Court (1803).

RE: Judicial Independence, Judicial Tenure, & Preservation of Limited Government & the Rights of Individuals Under the U.S. Constitution.

"If ... the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure [i.e., serving for life, or during good behavior] of judicial offices, since nothing will contribute so much as this to the independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

"This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."

      Alexander Hamilton, Essay Number 78, THE FEDERALIST

RE: The Proper & Legitimate Means Changing the U.S. Constitution.

"Though I trust the friends of the proposed Constitution will never concur with its enemies in questioning that fundamental principle of Republican government which admits the right of the people to alter or abolish the established Constitution whenever they find it inconsistent with their happiness; yet it is not to be inferred from this principle that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions of the existing Constitution would, on that account, be justifiable in a violation of those provisions, or that the courts would be under a greater obligation to connive at infractions in this shape than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives in a departure from it prior to such an act."

      Alexander Hamilton, Essay Number 78, THE FEDERALIST

RE: The U.S. Constitution's Limited Grant of Authority to Congress.

"...the Constitution endowed Congress with a limited legislative mission; omnibus authority to fasten its vision of heaven on the nation was purposely withheld in recognition of political fallibility and the dangers of a too muscular central government. Nothing in human nature or experience for more than two constitutional centuries shakes confidence in that wisdom."

      Bruce Fein.

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