The Historical Spectator

On the Right of the Judiciary Power to Judge of the Constitutionality of a Law,

by Hugh Henry Brackenridge

Hugh Henry Brackenridge was a judge in the Pennsylvania Supreme Court. He was also the first great literary figure of Pittsburgh, where he moved in 1781 and singlehandedly founded a literary culture that continues to this day (one of his foundations being the Pittsburgh Gazette, whose descendant, the Post-Gazette, still straggles on as the second-oldest metropolitan newspaper in America). In this article, he considers the question of whether a Pennsylvania court can declare a law unconstitutional and therefore void. The argument includes the same question with reference to the national government. Brackenridge comes down firmly on the affirmative side of the question, which has become orthodox American and Pennsylvanian legal theory.

March, 1804.

It has been made a question, whether the judicial branch of the government, has authority to compare legislative acts with the constitution, and, in any instance, be able to pronounce an act to be contrary to the constitution, and therefore void? I do not rest upon the argument, that it is in the oath of office of a Judge, “to support the constitution.” For, all officers, executive arid judicial, are bound, “by oath, or affirmation, to support the constitution.”

It does not follow that the clerk of a court, who takes the oath, has authority to determine on the constitutionality and obligation of an act of the legislature. It cannot, therefore, be on the ground of having taken an oath, that this right accrues, or obligation is possessed: It must be shewn to be the duty of the office. By Art. 8. of the Constitution, the oath of affirmation is prescribed to all officers, “to support the constitution, and perform the duties of their respective offices with fidelity.”

All admit, that the constitution is the law paramount; but who are the legitimate expositors of its extent? the people, doubtless, the framers of the compact. But, through what organ is their exposition to be known? Who is to give the explanation, or affix the comment? the members of the legislative branch are sworn “to support the constitution.” This involves the enacting laws within its circumscription, and authority. At the expiration of the period for which they were chosen, it is in the power of the people to express their sense against a law, by choosing others, and procuring a repeal. But in the mean time, are they at the mercy of an unconstitutional law? Are the judiciary bound to carry into effect a law against the prohibitions of the constitution? Does the safety of the community require that the judiciary branch shall exercise a co-ordinate authority with the legislative, to judge of the constitutionality of a law? That the legislative branch may trespass upon the constitution is admitted. In the case of a general law, it is more likely to be felt, than in that of a law affecting a portion of the community. But, even in the case of a general law, the injury is not always felt at once. On the contrary, immediate convenience may render it agreeable, though hurtful in the ultimate operation.

But admit the power of the judiciary to arrest the execution of a law, and you admit the power in all cases. The answer is, that there is no temptation to exercise the power wantonly; no motive; no object. It is, on the contrary, an ungrateful task. The danger is the flinching from duty, awed by the law-making power for the time being, and the popular opinion of the day. The undertaking is arduous, and requires fortitude. It is not reasonable to suppose, that men will encounter it from the mere abstract pride of exercising power without some advantage. At least, on the common principle of self-love> the presumption is against it.

It may be argued, that without this power in the judiciary, the use of exceptions, and restrictions in the constitution, will be much lessened. The constitution will vary with the flux and re-flux of representation, in the legislative body; whereas, by the judicial negative, not in the making, but in the execution of a law, there is a double security. It would seem, therefore, that the judiciary is not a mere subordinate functionary in the administration of the laws, but a branch of the government itself, co-ordinate with the law-making power, and bound to regard the constitution, and compare the law of the legislature, with the superior law of the people.

But, can it be the duty of the judiciary to resist the will of the law-making power, when two thirds of that power can remove from the judicial office? or to assist the will of the law-making power for the time being, in carrying into effect a law against the provisions of the constitution, when, on a change of administration, two thirds can remove for so assisting? This is a dilemma, and proves, at least, that it must be in the case of a law, against the express provisions of the constitution, that the judiciary are bound to interpose.

But, suppose a law against an express provision of the constitution, are the judiciary bound to execute? When the people come forward in election, and displace a delegation, will it justify the judiciary to say, we obeyed the law-making power for the time being?.… or rather, will not the people, by the new delegation, say, you were appointed learned in the law, furnished with a written instrument, the magna charta, the great paper of our liberties, and yet with this document, before you, you have carried a law into effect against the express provisions of it. You have betrayed your trust; you have not supported the constitution. It would seem to follow that the courts have a right to deliberate, and judge upon a law.

But, can the new delegation call themselves the people, any more than the former? Can it be a misdemeanor to execute a law of the law-mating power? Is not obedience to the will of the representation de facto excused? Will not resistance to the will, of the representation de facto be punished! How can the people, but by representation, come forward, and make their will known? Sit in judgment on the judiciary, and say, you have abused your trust, or fulfilled your duty. It would seem, therefore, that a legislative exposition, by a law, must be taken for the time being, to be the exposition of the people.

But, in the very nature of the establishment of the courts of justice, the people have entrusted the right of exposition, in the last resort, with these courts, and vested the judiciary, with the light paramount, to judge of the construction of the constitution. Why, then, at the same time, subject the judiciary to the law-making power, by impeachment; or by removal, for causes which may not furnish ground of impeachment ? Contrariety of exposition will be said to furnish cause of removal, or of impeachment itself; and determine the tenure of good behaviour.

But this supposes a perversion of the power of removal or impeachment. But what remedy? Appeal to the people. But a convention in the case of a questionable law, is not contemplated by the compact. Nor would it be convenient. It must rest with the constituted and subordinate authorities; exclusively with the law-making power, consisting of the two houses, the annual, and quadrennial, with the qualified negative of a triennial executive; or, concurrently with the judicial power, of unlimited, but conditional permanency, in an absolute negative in the execution. It is a point of constitutional law, which rises in magnitude in proportion as I contemplate it.

Whether the law-making power emanating more, immediately from the people, and, at stated periods revocable by them, shall legislate uncontroulably, under its own construction of the constitution; or, whether the more remote but more permanent power of the judiciary, shall exercise a judgment, either in cases, where the law-making power shall invade the constitution with sinister intentions, if we can suppose that possible; or, what is more likely to happen, when it may arise from an uninformed spirit of reform. It would seem, that in such cases, the judicial negative might be a desideratum, an auxiliary check, a collateral guard of equal rights against unequal laws. It was, in fact, the understanding at the formation of the constitution; or, by some means has come to be the understanding since, that the judiciary possess this power. It has been thought to be a great point gained in the science of government. The judiciary has been thought to be more with us, than under the British constitution, a mere expounder and administrator of the law, in matters of meum and tuum, or of the criminal code. Its highest function was thought to be the testing laws by the constitution. The theory is good; but can it be reduced to practice? Existence at the will of the law-making power even in a qualified manner, and at the same time, a controul over it, is what I cannot well reconcile more especially, as the power of the legislature over the judiciary, is expressly given, and that of the courts over the will of the legislature, can be but by construction and the exposition of the courts themselves. Can it exist but by courtesy? Can it be a duty, which carries with it official suicide? We may try a principle by enquiring, can it be carried into effect?

The structure of our state constitution is similar to that of the United States. Yet there are arguments in support of a similar power under the constitution of the United States, which do not exist under the state constitution.

By the constitution of the United States, the judicial power is limited to cases arising under “the constitution, and the laws.” In the debates in the conventions of the several states, on the adoption of the constitution, was not the power of the judiciary to test the laws by the constitution, considered as a principle of the system? Through the medium of the press, it was certainly the comment.

It was considered as a principle giving security, conferring stability; as, in itself a bill of rights. Has not the legislature of the Union recognized the principle in the law constituting the courts, and which prescribes the judicial oath, that they perform the duties of their office, agreeably to the constitution and the laws.” The courts of the United States have acted under this idea, and declared laws void. No protest on the part of the legislature of the Union: no dissent on the part of the states by moving for an explanation by amendment to the constitution. It would seem, therefore, to be an authority expressly given or conceded.

Under the state constitution, there is nothing said of the extent of the judicial power, but, in these words, “The several courts, besides the powers heretofore usually exercised by them, shall have” &c. Was this a power usually exercised before the constitution, or is the power drawn by construction from the compact, under the idea, that the constitution is the first law, and that it is the province of the judge, to expound, and to execute the laws.

“Powers usually exercised,” are terms which may not include the power in question: but, it may be argued, that it was not thought of; or, that a power of so high a nature would have been specially designated. Yet, to say, that the constitution is directory to the law-makers only; and that courts and juries have no interposition against subordinate law, in favour of constitutional right, is an imperfection, which nothing but the impracticability of a contrary principle, can reconcile with a wise ordination.

The protection of the judiciary, should it exercise the discretion, and risk this peril of setting itself in opposition to a particular law, must be in the understartding of the people.

Hence, it would seem, that it must be no ordinary case, that will justify an interposition. It must be such a case, as, upon a fair investigation, will carry with it the sense of the great body of the community. It must be a case of such gross outrage upon the letter of the constitution, as, in moral probability will reach the understanding of the mass, and induce the sovereign, the people themselves to instruct their representatives in the legislature. The authority of opinion must govern; and on an appeal to a court and jury, by a party, from a constitutional violation, in a plain and simple case, I might deem it practicable to support the privilege.

In the case of a law of the United States, it will be found, that a power in the state courts, and in the courts of the United States, to resist the execution of a law on the ground of unconstitutionally, is necessary to individual, or state right. And the same power in the state courts, with regard to our state constitution, though it may be the spirit of the time to frown upon it, and to run it down, may come to be understood and acknowledged as an essential principle of freedom. This will depend somewhat upon the wisdom of the application. The exercise of this power, in a case of abstract deduction, and not immediately comprehensible by the common mind, may excite a prejudice, and fix the public mind against it. That may be lost in practice, which exists in contemplation.

In the case of a law of general policy, there will be less reason for the application of this power; because, being felt by the whole community, and the operation found obnoxious, the majority can procure a repeal. But even in the case of a majority approving and persisting to support, the minority has still its rights, under the constitution, and an appeal may be contemplated. But it is in the case of a special law chiefly, that an appeal will be found necessary, or practicable. Because a special law, affecting an individual, or corporate body, a particular district, or portion of the community, may more easily be pushed upon the legislature, by a party interested, and a repeal less easily procured. It would seem reasonable, therefore, that in the case of a special law, an appeal to the courts of justice should exist, where the party aggrieved can be heard by themselves, or by council; and maintain a private right.

Under the constitution of the Union, the individual states, will look to the judiciary of the Union, to be heard and protected from powers not given. They will look to their state judiciaries in the first instance, where the jurisdiction is concurrent. No state, or citizen of a state, will say that they have not the barrier of a judiciary between them and the encroachments of the Union. The judiciary of the Union must have these powers, or they cannot afford the protection.

Under the constitution of the state, there must be the same rights to the parties to the compact. For, in the one case specified powers are given, in the other rights are reserved. But an individual of the state commonwealth, has not the same power to assert right. For the body politic of a state has more strength with regard to the Union, than a citizen with regard to a state. The legislature of the Union will not dare to question the right of a state, or of the citizens of a state to an appeal from a law to tribunals of law. But the law-making power of a state can bear down this privilege, and it may be that a law of the administration, for the time-being, cannot be resisted. But speaking of the power abstractedly constitutional, there can be no doubt.

Taking it for granted, then, that a power of this nature in the courts of justice springs from the constitution, and is necessary for its preservation, it is evident that it must be a clear case that will justify the use of it. A transgression of an express provision of the constitution, an infraction obvious to every one. Like the light of the sun it must strike every observer. The judge who shall undertake to pronounce a law unconstitutional, must himself be well persuaded of it. He must have no doubt. He must have such reasons before him as will carry with them unanswerable evidence, and will force general conviction. He must consider, that what he undertakes, is to set aside an act of the legislature, and that for this, he, in fact, puts himself upon the country.

Reprinted in Brackenridge’s Gazette Publications, 1806.