472

VITALITY OF THE CONSTITUTION.

Necessarily the Constitution must deal in general language. "It did not suit the purposes of the people, in forming this charter of their liberties, to provide for minute specifications of its powers, or to declare the means by which these powers were to be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure for a long lapse of ages, hence its powers are expressed in general terms, leaving to the legislature from time to time to adopt its own means to effectuate legitimate objects and to mold and model the exercise of its powers as its own wisdom and the public interests would require. This proved a comprehensive summary of the general character of the national government and is in marked contrast with the prolix and laborious message of Monroe on the subject of internal improvements transmitted to Congress in 1822.1

But Monroe and Story were not of the same political school. By Story's decision, internal improvements could be made at national expense; by the doctrine of Monroe's message, they could be made at national expense only after an amendment of the Constitution.

The right of a federal court to pronounce a legislative act null and void was not likely to go long unchallenged. As soon as the decision displeased a powerful political party it was likely to be made a political issue. The doctrine that the federal judiciary possessed absolute power to declare, if not to correct, abuses in legislation was reviewed adversely in 1825, by John Bannister Gibson, Chief-Justice of Pennsylvania.2 He considered the right 1 See p. 359.

2 In a dissenting opinion in Eakin vs. Raub, 12 Serg. & R., 330.

POWERS OF THE JUDICIARY.

473

to declare all unconstitutional acts null and void, without distinction as to either the Constitution of the United States or that of a State, to be rather a "matter of faith than of reason," and thought it somewhat remarkable, that although the right had long been claimed by the judiciary, no judge had ventured to discuss it, except Chief Justice Marshall.1 He acknowledged that the right had been universally assumed by the American courts, but thought that judges who asserted it ought to be prepared to maintain it on constitutional principles. He divided the powers of the judiciary into those political and those purely civil, for he conceived that every power by which one department of the government is enabled to control another, or to influence its acts, is political.

The political powers of the judiciary, he declared to be external and adventitious, as, for instance, those derived from certain provisions in the Constitution, and they were derived by direct grant from the common fountain of all political power. On the other hand, the ordinary and appropriate powers of the judiciary were civil, "being part of its essence" and existing independently of any supposed grant in the Constitution. "Where the government exists by virtue of a written constitution, the judiciary does not necessarily derive from that circumstance any other than its original and appropriate powers." He believed that the power in question did not necessarily arise from the fact that the judiciary was established by a written constitution, but that this department could not claim on account of that circumstance powers that did not belong to it at the common law; and whatever might have been the original cause of the limi

1 In Marbury vs. Madison, 1 Cranch, 137; the opinion of Justice Patterson in Van Horne vs. Dorrance, 2 Dallas, 1304, Judge Gibson considered as metaphorical rather than argumentative.

474

CHIEF JUSTICE GIBSON'S OPINION.

tation of its jurisdiction it could exercise no power of supervision over the legislature "without producing a direct authority for it in the Constitution, either in terms, or by irresistible implication from the nature of the government: without which the power must be considered as reserved, along with the other ungranted portions of sovereignty for the immediate use of the people.

He then proceeded, in a dissenting opinion, to formulate a doctrine which has since been relied on by all parties whenever the authority of a court to call in question the constitutionality of a law has been doubted. His opinion greatly influenced President Jackson, seven years later, when he called in question the validity of Marshall's decision, given in 1819, on the constitutionality of the National Bank.1 The opinion has been the quarry out of which politicians have freely hewn material with which to build defenses to protect the executive and legislative against so-called judicial usurpation. Gibson considered a constitution to be an act of external legislation by which the people established the structure and mechanism of their government, and by which they prescribed fundamental rules with which to regulate the motion of the several parts.

Thus far he was in accord with Jefferson, whose similar views of the Constitution are well known. A statute, according to this distinguished Pennsylvania judge, is an act of ordinary legislation, the provisions of which are to be executed by the executive, or the judiciary or by subordinate officers. A constitution, said he, contains no practical rules for the administration of distributive justice, with which alone the judiciary has to do; these

1 In McCulloch vs. Maryland, 4 Wheaton, 316; See Jackson's opinion ante, p. 408. For an account of Jackson's attitude toward this decision, see pp. 409-410.

JACKSON AND THE BANK.

475

being furnished in acts of ordinary legislation by that organ of the government, which in this respect is exclusively the representative of the people; and it is generally true that the provisions of a constitution are to be carried into effect immediately by the legislature and only mediately, if at all, by the judiciary. He denied that in a case of doubt whether the legislature had the right to pass an act, the judiciary could lawfully decide the matter. For if so, the court must be a peculiar organ to correct the mistakes and revise the proceedings of the legislature. Of those viewing the matter in the opposite direction, he inquired, what would be thought of an act of assembly that should declare that in a particular case the Supreme Court had put a wrong construction on the Constitution, and therefore its judgments should be reversed? Yet Jackson put this interpretation upon Marshall's opinion in the bank case, and considered that his own re-election to the Presidency was a popular verdict of disapprobation of the court's opinion. Gibson declared that for a court to declare a law void which had been enacted according to the forms prescribed in the Constitution would be a usurpation of the legislative power, for it would be an act of sovereignty, and sovereignty and legislative power, according to Blackstone, were convertible

terms.

It was the business of the judiciary to interpret the laws, not to scan the authority of the law-giver, and without examining his authority it could not take cognizance of a collision between a law and the Constitution. Gibson's conclusion of the whole matter was, that "to affirm that the judiciary has a right to judge of the existence of such a collision was to take for granted the very thing to be proved." He asserted that legislative acts should

476

THE ORGANS OF GOVERNMENT EQUAL.

be given the same respect claimed for judicial. The legis lature was entitled to all the deference due the judiciary, and its acts were in no case to be treated as ipso facto void unless they should produce a revolution in the government. To avoid them would require the act of some tribunal, if there were any such, competent under the Constitution to pass on their validity. But the question would arise whether the judiciary or the people were that tribunal. All the organs of the government, he declared to be of equal capacity; if not, each must be supposed to have a superior capacity only for those things which particularly belong to it, and as legislation particularly involved the consideration of limitations put on the lawmaking power, and the interpretation of the laws when made involved only the construction of the laws themselves, it followed that the construction of the Constitution in this particular belonged to the legislature. "It ought, therefore, to be taken to have a superior capacity to judge of the constitutionality of its own acts."

But if each department was of equal rank with the others, why should one exercise a controlling power over the rest? It had never been pretended that the judiciary was of superior rank, though it had been said to be coordinate. It was not easy, he said, to comprehend how the power which gave the law to all the rest could be of no more than equal rank with one which received it and to which it was answerable for the observance of its statutes. Legislation was essentially an act of sovereign power, but the execution of the laws by instruments, which were given by prescribed rules and exercised under power of volition, was essentially otherwise. The very definition of law, "a rule of civil conduct and prescribed by the supreme power in the State," showed the intrinsic superiority of the legislature. But it might be said that