THERE are yet other important authorities that are worth recalling in this connection, in order that the reader may have as nearly as possible a complete presentation of this important subject—especially in view of the fact that some of the most prominent men in the country seem to have forgotten it all.
First, there is the authority of one of the makers of the Constitution—John Dickinson—in a pamphlet of 1788, on “The Federal Constitution.” He said:—
“It must be granted that a bad administration may take place. What is then to be done?—The answer is instantly found: Let the Fasces be lowered before—the supreme sovereignty of the people. It is their duty to watch, and their right to take care, that the Constitution be preserved, or, in the Roman phrase on perilous occasions—to provide that the Republic receive no damage.”
“When one part [of the Government], without being sufficiently checked by the rest, abuses its power to the manifest danger of public happiness; or when the several parts abuse their respective powers so as to involve the commonwealth in the like peril: the people must restore things to that order from which their functionaries have departed. It the people suffer this living principle of watchfulness and control to be extinguished among them, they will assuredly not long afterwards, experience that of their ‘temple’ ‘there shall not be left one stone upon another, that shall not be thrown down.’”
Further, we have the authority of George Bancroft, the historian of the Constitution. In his work, “The History of the Formation of the Constitution,” discussing the “Federal Judiciary,” he makes the following statement concerning the Supreme Court, which is also but an extension of the principles laid down by Alexander Hamilton in his discussion of the Judiciary in the Federalist, No. LXXVIII:—
“The Supreme Court was to be the ‘bulwark of a limited constitution against legislative encroachments. [“Federalist,” LXXVIII.] A bench of a few, selected with care by the President and Senate of the nation, securing a safer tribunal than a multitudinous assembly elected for a short period under the sway of passing current thought, or the intrepid fixedness of an uncompromising party. There always remains danger of erroneous arguments, arising from mistakes, imperfect investigation on the bias of previous connections, the seductions of action, or the instigations of surrounding opinions, on a court from which there is no appeal is apt to forge circumspection in its sense of security.
“The passage of a judge from the bar to the bench, does not necessarily divest him of prejudices, nor close relations to the particular political party to which he may owe his advancement, nor blot out of his mind the great interests which he may have professionally allotted through doubtful straits, nor quiet the … which he is not required to renounce, even though his appointment is for life, nor cure predelictions which at times have their seat in his inmost nature.
“But the Constitution retains the means of protecting itself against the errors of partial or interested comments. In the first place, the force of a judicial opinion of the Supreme Court, in so far as it is irreversible, remains only the particular case in dispute; and to this society submits, in order to escape from anarchy in the daily routine of business.
“To the decison [sic.] on an underlying question of constitutional law no such finality attaches. To endure must be right. If it is right, it will approve itself to the universal sense of the impartial. A judge who can just lay claim to integrity will never lay claim to infallibility, but with indefatigable research will add, retract, and direct, whenever more mature consideration shows the need of it. The court is itself inferior and subordinate to the Constitution: it has only a delegated authority, and an opinion contrary to the tenor of its commission is … except as settling the case on trial.
“The prior act of a superior must be preferred to the subsequent act of an inferior, otherwise it might transform the limited into an unlimited constitution. When laws clash, the latest law is rightly held to express the corrected will of the Legislature; but the Constitution is the fundamental code, the law of laws; and when there is a conflict between the Constitution and a decision of the court, the original permanent act of the superior, outweighs the later act of the inferior, and retains its own supreme energy unaltered and unalterable except in the manner prescribed by the Constitution itself.
“To say that a court, having once discovered the error, should yet cling to it because it has once been delivered as its opinion, is to invest caprice with inviolability and make a wrong judgment of a servant outweigh the Constitution to which he has sworn obedience. The act of the Legislature at variance with the Constitution is pronounced void; an opinion of the Supreme Court at variance with the Constitution is equally so.”
This passage is worthy of more extended notice.
(a) “The Supreme Court was to be the bulwark against legislative encroachments” upon the rights of the people. This was the purpose of the founders of that tribunal. But did the people erect no bulwark against [89] judicial encroachments? Or did they suppose that supreme judges were so decidedly infallible that there was no possibility of their encroaching even unconsciously? Did they think it impossible for that Court to make a mistake?—Nothing of the kind. They knew that even supreme judges, being only men, are just like other men, having the same weaknesses and the same liability to mistakes as other men, and therefore being as liable as legislators to mistake the meaning of the constitution and to encroach upon the rights of the people. And knowing that “a court from which there is no appeal is apt to forget circumspection in its sense of security,” and is thereby only the more apt to make mistakes and encroachments, the people, while setting the Supreme Court as the bulwark against legislative encroachments, retained to themselves the right of final appeal, judgment and decision upon the decisions of the court touching all questions of the Constitution.
(b) “Where there is a conflict between the Constitution and a decision of the court,” etc. But if every decision of the Supreme Court is final in all respects; and if said decisions are to be accepted as final as to the meaning of the Constitution; then it would be impossible that there ever could be any such thing as a conflict between the Constitution and a decision of the Court.
Yet, as it is expressly declared in the Constitution that the people have reserved certain rights and powers exclusively to themselves, and so have forbidden the Supreme Court any jurisdiction in these, it is clearly possible for a conflict to be made between the Constitution and a decision of the court. And where there is a conflict there must of necessity be some authority to decide. And as the people made both the Constitution and the Court; and as the people stand outside of and above both the Constitution and the Court; it is perfectly plain that in all cases of conflict between the Constitution and the Supreme Court, the right of final judgment and decision lies with the people as an inalienable right.
(c) The court “has only a delegated authority, and every opinion contrary to the tenor of its commission is void.” But if every decision of the court is to be accepted as final in all respects, how would it be possible for any opinion ever to be void? And even though it were possible, how could the fact of its being void ever be discovered? It is true that the court has only a delegated authority, and that every opinion contrary to the tenor of its commission, that is, every opinion contrary to the tenor of the Constitution, is void. And it is equally true that it lies with the people, who delegated this authority, to discover and to disregard and set aside as void every such opinion. And this prerogative lies with the people as their inalienable right.
(d) “An act of the Legislature at variance with the Constitution is pronounced void. An opinion of the Supreme Court at variance with the Constitution is equally so.” An act of the Legislature at variance with the Constitution is pronounce [sic.] void by the Supreme Court. But when an opinion of the Supreme Court is at variance with the Constitution, whose prerogative is it to pronounce this void and to treat it so?—Clearly this is the prerogative and right of the people.
It is here said, and repeated, that every such opinion [90] of the court “is void.” This is true; and if such decisions were completely ignored by everybody, and so left meaningless and void as they are, they could never do any harm. But it is hardly possible that there could ever be a decision in which nobody would have sufficient personal interest to seek to make it of force as far as possible; and every decision, void or otherwise, always stands as a matter of record to be taken up by interested parties and used as a precedent upon which to carry any principle involved, to its fullest extent in real factitive law. For this reason it is incumbent upon the people to see that every such decision is so positively pronounced void, and so regarded by themselves—the supreme and ultimate authority—that it shall not be cited even as a precedent.
There is another excellent statement of this principle, which, though not bearing exactly the force of national authority, is well worthy to be set down here. It is in every respect true, and shows how this subject presents itself to a disinterested mind. Mr. Bryce, in his great work, “The American Commonwealth,” speaks thus:—
“How and by whom, in case of dispute, is the validity or invalidity of a statute to be determined?—Such determination is to be effected by setting the statute side by side with the Constitution, and considering whether there is a discrepancy between them. Is the purpose of the statute one of the purposes mentioned or implied in the Constitution? Does it in pursuing that purpose contain anything which violates any clause of the Constitution? Sometimes this is a simple question which an intelligent layman may answer; more frequently it is a difficult one, which needs not only the subtlety of a trained lawyer, but a knowledge of former cases which have thrown light on the same or a similar point. In any event it is an important question, whose solution ought to proceed from a weighty authority. It is a question of interpretation, that is, of determining the true meaning both of the superior law [the Constitution] and of the inferior law [the statute], so as to discoves [sic.] whether they are inconsistent. Now the interpretation of laws belongs to courts of justice.”
“How is the interpreting authority restrained? If the American Constitution is capable of being so developed buy this expansive interpretation, what security do its written terms offer to the people and to the States? … There stands above and behind the Legislature, the executive, and the judiciary, ANOTHER POWER, that of public opinion. The President, Congress, and the courts are all, the two former directly, the latter practically, amenable to the people…. If the people approve the way in which these authorities are interpreting and using the Constitution, they go on; if the people disapprove, they pause, or at least slacken their pace…. The people have, of course, much less exact notions of the Constitution than the legal profession or the courts. But … they are sufficiently attached to its general doctrines, they sufficiently prize the protection it affords them against their own impulses, to censure any interpretation which palpably departs from the old lines.”
And upon all this it is well to bear in mind, and forever to say, that “there is not in this view any assault upon the court or the judges.” It is simply maintaining the fundamental principle of the Government of the United States, and the vital principle of the right of the people.
Nor is this to say, nor in any sense to imply that every man is at liberty to disregard, or disrespect, whatever decision of the court he may not personally agree with. It is to say that it is absolutely incumbent on every citizen to be so well read in the Constitution that he shall know for himself the limitations upon the Government, and shall know how to act accordingly. The citizen must hold himself, as well as the court, and the Government, altogether, strictly to the Constitution.