University of Michigan Law School
University of Michigan Law School Scholarship Repository
13*$,&2 "$4,38$)/,"12)*0
Power of Judiciary to Declare a Law
Unconstitutional
Charles A. Kent
University of Michigan Law School
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THE
AMERICAN
LAW
REGISTER.
DECEMBER,
1872.
THE
POWER
OF
THE
JUDICIARY
TO
DECLARE
A
LAW
UNCONSTITUTIONVAL.
The
judiciary
has
no
power
to
declare
a law
unconstitu-
tional
unless
it
conflicts
with
some
provision
of
the
State
or
Federal
Constitution.
It
will be
the
purpose
of this
article
to
show
the
reason-
ableness
and
meaning
of
this
principle.
To
many
lawyers
a
discussion
of
the
subject
will
appear
unnecessary,
because
the
doctrine
stated
seems
perfectly
es-
tablished
by
the
decisions.
But
it
has
been
recently disputed
by
high
authority.
Judge
COOLEY,
in
the
preface
to
the
second
edition
of
his
able
work
on
Constitutional
Limitations,
says
that
he
has
endeavored
to
point
out
"that
there
are
on
all
sides
definite
limitations
which
circumscribe
the
legislative
authority
independent
of
the
specific
restrictions
which
the
people
impose
by
their
State
Constitutions."
And
similar
views
are
maintained
by
Judge
REDFIELD,
in
the
American
Law
Register
for
March,
1871,
p.
161
et
seq.
And
some
courts
which
assert
the
principle
for
which
we
contend,
in
the
most
unqualified
terms,
aussert,
also,
as
a
pro-
vision
of constitutional
law,
not
founded
upon any
specific
constitutional
inhibitions, the
doctrine
that
taxation
can
be
only for
a
public purpose,
and
that
an
attempt
to
tax
for
a
private
purpose is
void.
VoL.
XX.-4
'.
(729)
HeinOnline -- 20 Am. L. Reg. 729 January to December 1872
THE
POWER
OF
THE JUDICIARY
That,
as
a
matter
of
justice,
taxation
should
be
employed
only for
a
public
purpose,
that
is,
a
purpose
which
the
com-
munity
taxed
is
interested
in
accomplishing,
is
so
obvious
a
truism
that
we
presume
it
was
never
doubted.
Probably
no
legislator
ever
voted
for
an
act
imposing
taxation,
except
on
the
ground
that
it
would
conduce
to
some
purpose
which
he
deemed
public.
But
obviously
just
as
is
the
principle,
its
assertion
by
the
judiciary
as a
test
by
which
to
try
the
validity
of
acts
of
the
legislature,
is
inconsistent
with
the
doctrine
that
no
act
of
the
legislature
can
be
declared
void,
except
in
conflict
with
some
specific
constitutional
provision.
It
is
said
that
the
very
definition
of
taxation
shows
that
it
must
be for
a
public
purpose,
and
that
an
attempt
to
tax
for
an
object
not
public
is
not
taxation,
but
robbery,
and,
therefore,
void.
This
is
plainly
limiting
the
power
of
the
legislature
by
the
definition
of
a
word-a
definition
made
by
the
lexicographer,
or
by
the
usage
which he
followed
in
giving
the
definition.
Where
the
validity
of
an act
of
the
legislature
depends
upon
the
interpretation
of
a
constitutional
provision,
it
may
depend
upon
the
definition
of
the
words
used
in
such
provis-
ion;
but
to
assert
that
in
any
other
case
an
act
of
the
legis.
lature
can
be
controlled
by
definitions
of
words
not
used
in
it,
is
to
set
up
a
standard
of
judgment
outside
of
the
written
Constitution.
Most
of
the
courts
which
assert
as
a
principle
of
constitu-
tional
law
that
taxation
must.
be
for
a
public
purpose,
qualify
the
assertion
by
saying
that
the
matter
is
so
far
within
the
legislative
discretion
that
if
the
taxation
in
question
can
in
any
degree
be
promotive
of
the
public
welfare,
then the
leg-
islative
decision
is
conclusive
upon
the
courts.
This
qualifi-
cation,
consistently
adhered
to,
takes
away
almost
all
practical
power
from
the
assertion
of
the
principle;
for
the
legislature
will,
perhaps,
never
vote
the
public
money
ex-
cept
for
some
object
which
they
claim
to
be
public,
and
it
can
very
seldom,
if
ever,
happen
that
a
court
can
say
as
a
matter
of
law
that
the
expenditure
authorized
can,
by
no
possibility,
be
beneficial
to
the
public.
But
the
assertion
of
the
principle
with
the
qualification
is
HeinOnline -- 20 Am. L. Reg. 730 January to December 1872
TO
DECLARE A
LAW
UNCONSTITUTIONAL.
still
in direct
conflict
with
the
doctrine
that
no
act
of
the
legislature
can
be
declared void
unless
in
conflict
with
some
specific
constitutional
provision, and
it
has
given
occasion for
some
courts
to
pass
from
the
assertion
of
a
principle
thus
practically
unimportant
to
the
announcement
of
doctrines
having
a most
important
practical
bearing
upon
the
respec-
tive
powers
of
the judicial
and
legislative departments
of
government.
In
the
recent
cases
of
WVhite
v.
The
Sheboygan
R. R.
Co.,
9
Am. L.
R.,
N.
S.
156,
and
The
People
v.
Salem,
9
Am.
L. R.,
N.
S.
487,
S.
C.,
20
Mich. 452,
the
highest
courts
of
Wiscon-
sin
and
Michigan
have
declared
that
the
giving
of public
money
to
private
corporations,
to
aid
in
the
building
of
rail-
roads,
is
unconstitutional.
They
did
not undertake
to
deter-
mine
that
the
railroads
to
be
built
could
by
no
possibility
benefit
the
communities
to
be
taxed,
but
they
say
in
effect
that
the
manner
devised
by
the
legislature of
accomplishing'
the
public
benefit
sought
is
unconstitutional.
In
the
case
of
the
Garrard
County
Court
v.
Kentucky
River
Navigation
Company,
10
Am.
L.
R.,
N.
S.
151,
the
highest
court
of
Kentucky
held
that
the
improvement of
a
navigable
river
was
not of
such
local
public
benefit
as
to
sustain
an
act of
the
legislature,
authorizing
the
County
of Garrard,
through
which
the
river
runs,
to
tax.
itself
for
this
purpose.
The
court,
in
this
case,
did not
undertake
.to say
that
the
improve-
ment
in question
would
not
be
a
local benefit
to
Garrard
county,
but
that
it
would
not
be
such
a
local
benefit
as
would
justify
county
taxation.
If
the
principles
sought
to
be
established
by
these
courts
are
sound,
then
courts,
independent
of
specific
constitutional
restrictions,
can
determine,
at
least
negatively,
what
objects
are
of
sufficient
public
importance
to
justify
taxation,
and
also
the
manner
in
which
the
public aid
may
be
afforded.
They
can
thus
determine
the
objects
of
government,
since
only
bytaxation
can
any
governmental
object
b3
accomplished,
and
the
method
by
which
these
objects
shall
be
carried
out.
The
importance
of
the
principles
thus
announced
is
shownby
the
fact
that
while
there
is
the
greatest
unanimity in the
view
that
taxation
should
be
used
only
for
a
public
purpose,
there
HeinOnline -- 20 Am. L. Reg. 731 January to December 1872
THE
POWER
OF
THE
JUDICIARY
is
the
greatest
variety in
opinion and
practice
as
to
the
ob-
jects
for
which
the
public
should
undertake
to
provide
and
the
manner
in
which
the
needed
provision
should
be
made.
If
these
matters
are
all
to
be
left
to
the
final
determination
of
the
judiciary,
it
will
constitute
a
great
enlargement
of
their
powers.
Another
limitation
upon
the
power
of
the
legislature
is
derived
by
some
courts
fr6m
the
constitutional
provision
by
which
the
powers
of
government
are
divided
into
legislative,
judicial
and
executive,
and
the
officials
of
each
department
are
vested
with
its
powers.
It
is
conceded
by
all
that
this
provision
excludes
the
legislature
from
exercising
judicial
or
executive
powers,
since
these
powers
are
granted
to
other
de.
partments.
It
is
further
said
that
under
this
provision
the
Legislature
can
exercise
only
legislative
powers,
and
this
also
we
admit,
since
there
are
no
other
powers
known
to
gov-
ernment
save
judicial
and
executive,
and
from
these
the
le-
gislativeis
excluded.
But
it
is
further
contended
that
legislative
power
is
something
less
than
the
power
of
making
any
law
which
the
legislature
deem
proper-that
there
are
restrictions
upon
it
not
contained
in
specific
constitutional
inhibitions,
but
derived
from
the
principles
of
justice
or
the
nature
of
free
government.
If
these
restrictions
were
founded
at
all
on
the
meaning
of
legislative
power,
then,
as
based
on
a
consti-
tutional
provision,
they
would
not
be
opposed
to
the
doctrine
for
which
we
contend,
but
legislative
power
so
clearly
means
the
power
of
making
laws
irrespective
of
the
subjects
or
the
character
of
the
laws,
that
it
is
idle
to
find
limitations
in
these
words.
The
limitations
sought
to
be
found
here
are,
then,
clearly
outside
of
any
constitutional
provision,
and
must
fall,
if
the
judiciary
have
no
power
to
declare
an act
void
unless
in
conflict
with
some
provision
of
the
Constitution.
We
have
thus
far
undertaken
to
show
the
danger
which
exists
of
the
infringement
of
the
principle
with
which
we
sarted.
We
now
proceed
to
our
main
purpose
of
showing
its
meaning
and
reasonableness.
And
first,
of
its
meaning.
1.
It
does
not
mean
that.
an
act
of
the
legislature
cannot
be
declared
void
unless
expressly
forbidden
by
some
consti-
tutional
provision.
An
implied
prohibition
may
be
as
clear
HeinOnline -- 20 Am. L. Reg. 732 January to December 1872
TO
DECLARE
A
LAW UNCONSTITUTIONAL.
as
an
express
one,
and
if
so,
should be
as
certainly
enforced.
But
in such
cases,
the
provision
which
contains
the
implica-
tion
should
be
pointed
out,
and
the
implication
should be
derived
only
from
a
fair
interpretation
of
the
language
used.
2.
It
does
not
imply
that
all proper
limitations
of
legisla-
tive
power
are
found
in
the
Federal
Constitution
and
that
of
any
State.
There
may
be
other
limitations of
great
import-
ance,
whose
justice
seems
perfectly
evident
to
all clear-headed
political
reasoners.
Such
limitations
should
be
urged
upon
the
legislature with
such
force
as
their
merits
deserve.
If
disregarded,
and
the
evil
which
results
is
wide-spread
and
great,
the
people
should
be
urged
to
introduce
into
their
con-
stitutions
the
needed
limitations.
3.
It
does
not
imply
that
the
legislature
may
not
do
injus-
tice
not
forbidden
by
the
Constitution.
Scarcely
any
law
of
general
application
is
passed
which
does
not
do
injustice
to
some
one.
And
a
law
which
operates
in
the
fairest
possible
way
will
often seem
unjust
to
those
whom
it
burdens.
It
does,
however,
imply
that
the
injustice
in
such
cases
is
one
as
to
which
there
is
no
relief
from
the
determina'tion
of
the
legislature.
The
highest
courts
will
often
seem
to
suitors
to
commit
great injustice,
but
from
their
decisions
there
is
no
appeal.
And
the
injustice
which
comes
through
laws not
forbidden by
the
Constitution,
is
an
injustice
which
the
courts
have
no
right
to
remedy.
4.
It
does
not
imply
that
the
citizen
is
always
bound
to
obey
every
act
of
the
legislature
not
in
conflict
with
some
provision
of
the
constitution.
An
act
not unconstitutional
may
be
so
unjust
as
to
justify
the
exercise
of
the
right
of
revolution,
or
it
may
be
so
ridiculous
as
to
justify
treating
it
with
silent
contempt.
If
an act
of
the
legislature
of
New
York
should
impose
upon
the
city
of New
York,
for
munici-
pal
purposes,
a
tax
which
in
one
year
should equal
the
entire
value
of
all
the
propertY
in
the
city,
this
would
justify
re-
bellion.
If
the
same
legislature
should
pass
an
act
prescrib-
ing
particularly
the
fashion
in
which
each
inhabitant
of
the
city
should
dress,
it
would
properly
be
treated
with
utter
neglect
and contempt.
But
in
ucither
case,
in
the
absence
of
HeinOnline -- 20 Am. L. Reg. 733 January to December 1872
THE
POWER
OF
THE
JUDICIARY
constitutional
provisions
upon
the
subject,
would
there
be
any
rightful
appeal
to
the
judiciary.
5.
The
principle
for which
we
contend
does
mean
that
in
deciding
upon
the constitutionality
of
an
act of
the
legisla.
ture,
the
judiciary
are
confined
to
an
interpretation of
the
act,
and
to
an
interpretation
of
the
specific
constitutional
clauses
which
the
act
is
alleged
to infringe,
and
that
only
where
the
fair
interpretation
of
the
latter
is
in
conflict
with
the
fair
interpretation
of
the
former,
can
the
act
be
set
aside,
and
that
to
this
rule
there
are
absolutely
no
exceptions.
It
confines
the
work
of
the judiciary
to
that
which is
alone
their
proper
province,
viz.,
the
work
of
interpreting
the
law,
and
applying
it
to the
facts
of
the
case
before
them.
The
reasonableness
of
the
rule
that
the
judiciary
cannot
declare
an
act
of
the
legislature
unconstitutional
unless
in
conflict
with
some
specific
provision
of
the
Constitution,
will
appear from
comparing
the
arguments
in
its
favor
with
those
against
it.
The
arguments
in
its
favor
.can
be
reduced
to
these:
1.
It
is
impossible
to
find
any
satisfactory
basis
for
the
existence
of
a power
in
the
judiciary
to
declare
void
acts
of
the
legislature,
except
as
they
are
in
conflict
with the
written
Constitution.
The
power
to set
aside
acts
of
the
legislative
body
does
not
to
belong
the judiciary
in
England.
It
is,
we
believe,
of purely
American
growth.
It
is
wholly
derived
from
the
written
constitution
established
here.
It
was
first
asserted
as a
necessary
implication
from
the
fact
that the
written
constitutions
are
declared to
be
the
supreme
law, and
must,
as
a
consequence,
render
nugatory
any
legislative
act
in
conflict
with
them.
The
duty
of
the
judiciary
to
inter-
pret
the
law
made
it
necessary
for them
to
interpret
both
the
legislative
act and
the
supreme
law
of
the
Constitution,
and
where
there
was
a
conflict,
to
declare
the
pre-eminence
of
the
latter.
The
power
of
the
judiciary
to set
aside
acts
of the
legislature
being
thus
wholly
derived
from
written
constitu-
tions,
must
fail
where
these
fail. It
cannot
be
extended
be-
yond
the
source
from
which
it
had
its
origin.
2.
The rule
which
we
seek
to
maintain
is
the
only
one
which
can
give
that
certainty,
which
is
one
of
the
very
high-
HeinOnline -- 20 Am. L. Reg. 734 January to December 1872
TO
DECLARE
A
LAW
UNCONSTITUTIONAL.
est
requisites of
human
law.
It
is
as
important
that
those
who
must
suffer
the
consequences
of
a
mistake
as
to
the
law,
should
be
able
to
ascertain
what
it
is bcfore
acting,
as
that
the
law
should
be
wise
and
just.
But
if
acts
of
the
legislature
can
be
set
aside
by
the
ju-
diciary
ba-ause
in
conflict
with fundamental principles
not
expressed
in
the written
constitutions,
who
is able
authorita-
tively
to
declare
what these
principles
are-what
the
judiciary
in
a
given
case
will
decide
them
to
be? How
can
the
legis-
lature
know
when
they
are
keeping
within
the
proper
boun-
daries,
and
so
making,
laws
which
will
stand?
And
where
shall
the judiciary
themselves look
to
ascertain
these
princi-
ples
? If
they
say
that
legislative
power
does
not
extend
to
the
making
of
all
laws
not
forbidden
by
the
Constitution,
where
is
the
line which
shall divide
those
which are
within
the
legislative
power,
from those which are
without
it?
Is
usage
to
determine
this
line?
If
so,
what
must
be
the
nature
and
extent
and
duration
of
this
usage?
If
it
lies
in
the
power
of
the
judiciary,
independent of
constitutional
pro-
visions,
to
say
that
a
certain
method
of
accomplishing
a
pur-
pose
acknowledged
to
be
public,
is
unlawful,
though
adopted
by
the legislature,
or
that
certain
objects
which
the
legisla-
ture
have
determined
to
be
worthy
of
public
support
are
be-
yond
the
sphere
of governmental
aid,
where will
they
find
the
line which
is
to
separate the methods
or
the
objects
which
are
unlawful
from those
which
are
not?
It
will
be
admitted
that
no
such line
can
be
found,
and
that
no
principle
can
be
stated
upon
which
the
judiciary
will
agree,
which
will
deter-
mine
the
limits
of
the
power
claimed.
The
consequence
is
that
the
assertion
of
such
indefinite
power
throws
the
whole
subject
of
constitutional
law
into
confusion
and
uncertainty.
We
venture
to
say
that
a large
propor
tion
of
the
difficult
questions
of
constitutional
law
existing
to-day,
arise
out
of
the
attempt
of
the judiciary
to
cet
up
some
standard
of
judg-
ment
outside
of
the
written
Constitution.
The
practical
con-
sequences
of
this
uncertainty
are
disastrous.
Legislatures
must
legislate
upon
subjects,
or
in
methods
which
transgress
some
men's
notions
of
the proper
sphere
of
government.
Business
must
be
done
based
upon
this
legislation.
Either
HeinOnline -- 20 Am. L. Reg. 735 January to December 1872
THE
POWVER
OF THE
JUDICIARY
it
must
go
forward subject
to
the
risk
of being
all
set
aside
by
judicial
decision,
or
it
must
be
suspended
until
judicial
decision
has
been
obtained.
The evil of
either
course
may
be
very
great.
3.
It
is
only
by
maintaining
the
rule
that
the
judiciary
cannot
declare an
act
of
the
legislature void
unless
it
is
in
-onflict
with
some
provision
of
the
written
Constitution,
that
the
line
between
legislative
and
judicial
powers
can
be
kept
ap.
Tfe
separation
of
these
powers,
and
the
intrusting
of
them
to
difibrent
classes
of
officials,
are
regarded
as
very
im-
portant
by
all
our
political
writers.
If
the
judiciary
may
set
aside
acts
of
the
legislature
because
in
conflict
with princi-
ples
whose
determination
is
left
to
their
sole
unguided
judg-
ments, what
hinlers
them
from
gradually
assuming
the
power
of
putting
a
negative
upon
every
act
of
the
legislature,
which,
in
their
judgment,
is unjust
or
unwise,
and
so
having
a
very
large
control
over
the
legislative
power?
The
tendency
of
all men
is
to
put
the
largest
interpretation
upon
their
own
powers.
This
tendency
in
the
legislature
or
executive
may
be
checked
by
the
judiciary. But
what,
save
a
strict
adher-
ence
to
the
written
Constitution,
can
check
the
judiciary?
The
arguments
against
the
view
of
constitutional
law
which
we
seek
to
maintain
seem
reducible
to
this
one.
The
legislature
will
pass
laws
not
forbidden
by
the
provisions
of
the written
Constitution,
which
are
yet
so
unjust,
or
so
contrary
to
the
theory
of
free
governments,
as
to
do
great
evil, and
the
evil
can
be
restrained
only by
giving
the
ju-
diciary
power
to
declare such laws
void.
This argument
as-
sumes
that
the
judiciary
are
better
judges
than
the
legislatures
of
the
principles
of
government,
or
of
justice,
and
that
the
decisions
of
legislatures
upon
these subjects
are
not
to
be
trusted-an
assumption
which,
as
a
matter
of
fact,
is
some-
times
true,
and
sometimes
not
true,
but
which
at
any
rate
cymes
with
a
very
poor grace
from
the
judiciary.
It
is
fbiandcd
on
a
distrust
of
our
theory
of
government,
which
commits
the
making
of
its
laws
to
men
who
are
often
quite ig-
norant
of
many
things
which law-makers
should know.
'e
do
not
doubt
that
legislatures
may
often
(do
much
evil
by
the
passage
of
acts
not
in
conflict
with
tei
provisions
of
the
Con-
HeinOnline -- 20 Am. L. Reg. 736 January to December 1872
THE
POWER
OF
THE
JUDICIARY.
stitution,
and
that
a
part
of
this
evil
may
sometimes
be
re-
mediedby
the
assumption
by
the
judiciary
of
a
power
to
declare
such
acts
void;
but
the
assumption
of
this
power
may
lead
to
greater
evils
than
it
can
cure.
At
the
best,
it
gives
but
an
appeal
from
the
judgment
of
one
branch
of
the
govern-
ment
to
that
of
another,
with
no
certainty
that
the
latter
will
be
better
than
the
former.
And
the
destruction
of
vested
rights,
which
comes
from
the
setting
aside
by
the
judiciary
of
an
act
generally
acted
upon
as
valid,
may
often
produce
greater
injustice
than
the
sustainiug
of
the
law,
however
con-
trary
to
fundamental
principles.
The
mistakes
made
by
the
legislature
can
generally
be
easily
corrected.
New
legisla-
tors
can
be speedilv
elected,
who
will
repeal
a
law
generally
regarded
as opposed
to
right
principles
of government,
and
a
new
constitutional
amendment
may
be
made
without
much
difficulty
to
restrain
future
legislatures.
But
the
mistakes
of
the
judiciary
in
exercising
powers
to
which
they
are
not
entitled
are
not
so
easily
corrected.
The
acknowledged
power
of
the
judiciary
to
set
aside
acts
of
the
legislature
in
conflict
with
constitutional
provisions
is
fraught
with
such
se-
rious
danger
of
evil
that
it
is
admitted
by
all
that
it
should
be
exercised
only
in
very
plain
cases.
But
how
much
greater
is
the
danger
if
such
acts
may
be
set
aside
because
in
conflict
with
principles
so
vague
that
it
is
impossible
to
define
them
beforehand,
and
so
unsettled
that
an
inquirer
cannot
be
told
where
to
look
for
them
1
C.
A.
KENT.
-
COUNTY
SUBSCRIPTIONS
TO
RAILROAD
COR
PORATIONS.
Is
the
subscription
of
stock
to
a
railroad
corporation,
by
a
county,
legal
and
valid
because
a
majority
of
those
voting
at
an
election
held
in
pursuance
of
a
special
statute,
to
deter-
mine
whether
such
subscription
shall
be
made,
have
voted
in
favor
of
the
proposition
?
HeinOnline -- 20 Am. L. Reg. 737 January to December 1872
