Eakin v. Raub
12 Sergeant & Rawle (
Although the specific issue before
the
Gibson, J. [dissenting].
... I am aware,
that a right to declare all unconstitutional acts void ... is generally held as
a professional dogma; but, I apprehend rather as a matter of faith than of
reason. I admit that I once embraced the same doctrine, but without
examination, and I shall therefore state the arguments that impelled me to
abandon it, with great respect for those by whom it is still maintained... .
...The Constitution
and the right of the legislature to pass the act, may be in collision; but is
that a legitimate subject for judicial determination? If it be, the judiciary
must be a peculiar organ, to revise the proceedings of the legislature, and to
correct its mistakes; and in what part of the Constitution are we to look for
this proud preeminence? Viewing the matter in the opposite direction, what
would be thought of an act of assembly in which it should be declared that the
Supreme Court had, in a particular case, put a wrong construction on the
Constitution of the United States, and that the judgment should therefore be
reversed? It would doubtless be thought a usurpation of judicial power. But it
is by no means clear, that to declare a law void which has been enacted
according to the forms prescribed in the Constitution, is not a usurpation of
legislative power ... .
... But it has
been said to be emphatically the business of the judiciary, to ascertain and
pronounce what the law is; and that this necessarily involves a consideration
of the Constitution. It does so: but how far? If the judiciary will inquire
into anything beside the form of enactment, where shall it stop? There must be
some point of limitation to such an inquiry; for no one will pretend that a judge
would be justifiable in calling for the election returns, or scrutinizing the
qualifications of those who composed the legislature... .
But the judges
are sworn to support the Constitution, and are they not bound by it as the law
of the land? In some respects they are. In the very few cases in which the
judiciary, and not the legislature, is the immediate organ to execute its
provisions, they are bound by it in preference to any act of assembly to the
contrary. In such cases, the Constitution is a rule to the courts. But what I
have in view in this inquiry, is the supposed right of the judiciary, to
interfere, in cases where the Constitution is to be carried into effect through
the instrumentality of the legislature, and where that organ must necessarily
first decide on the constitutionality of its own act. The oath to support the
Constitution is not peculiar to the judges, but is taken indiscriminately by
every officer of the government, and is designed rather as a test of the
political principles of the man, than to bind the officer in the discharge of
his duty; otherwise it were difficult to determine what operation it is to have
in the case of a recorder of deeds, for instance, who, in the execution of his
office, has nothing to do with the Constitution. But granting it to relate to
the official conduct of the judge, as well as every other officer, and not to
his political principles, still it must be understood in reference to
supporting the Constitution, only as far as that may be involved in his official
duty; and consequently, if his official duty does not comprehend an inquiry
into the authority of the legislature, neither does his oath….
But do not the
judges do a positive act in violation of the Constitution, when they give
effect to an unconstitutional law? Not if the law has been passed according to
the forms established in the Constitution. The fallacy of the question is in
supposing that the judiciary adopts the acts of the legislature as its own;
whereas the enactment of a law and the interpretation of it are not concurrent
acts, and as the judiciary is not required to concur in the enactment, neither
is it in the breach of the Constitution which may be the consequence of the
enactment; the fault is imputable to the legislature, and on it the
responsibility exclusively rests. In this respect, the judges are in the
predicament of jurors who are bound to serve in capital cases, although unable,
under any circumstance, to reconcile it to their duty to deprive a human being
of life. To one of these, who applied to be discharged from the panel, I once
heard it remarked, by an eminent and humane judge, “You do not deprive a
prisoner of life by finding him guilty of a capital crime; you but pronounce
his case to be within the law, and it is, therefore, those who declare the law,
and not you, who deprive him of life.”
. . . But it has been said that this
construction would deprive the citizen of the advantages which are peculiar to
written constitution, by at once declaring the power of the legislature, in
practice, to be illimitable. I ask, what are those advantages? The principles
of a written constitution are more fixed and certain, and more apparent to the
apprehension of the people than principles which depend on tradition and the
vague comprehension of the individuals who compose the nation, and who cannot
all be expected to receive the same impressions or entertain the same notions
on any given subject. But there is no magic or inherent power in parchment and
ink, to command respect and protect principles from violation. In the business
of government, a recurrence to first principles answers the end of an
observation at sea with a view to correct the dead reckoning; and, for this
purpose, a written constitution is an instrument of inestimable value. It is of
inestimable value, also, in rendering its principles familiar to the mass of
the people; for, after all, there is no effectual guard against legislative
usurpation but public opinion, the force of which, in this country, is
inconceivably great. Happily this is proved, by experience, to be a sufficient
guard against palpable infractions. The Constitution of this state has
withstood the shocks of strong party excitement for thirty years, during which
no act of the legislature has been declared unconstitutional, although the
judiciary has constantly asserted a right to do so in clear cases. But it would
be absurd to say, that this remarkable observance of the Constitution has been
produced, not by the responsibility of the legislature to the people, but by an
apprehension of control by the judiciary. Once let public opinion be so corrupt
as to sanction every misconstruction of the constitution and abuse of power
which the temptation of the moment may dictate, and the party which may happen
to be predominant, will laugh at the puny effort of a dependent power to arrest
it in its course.
For these
reasons, I am of the opinion that it rests with the people, in whom full and
absolute sovereign power resides to correct abuses in legislation, by instructing
their representatives to repeal the obnoxious act. What is wanting to plenary
power in the government, is reserved by the people for their own immediate use;
and to redress an infringement of their rights in this respect, would seem to
be an accessory of the power thus reserved. It might, perhaps, have been better
to vest the power in the judiciary; as it might be expected that its habits of
deliberation, and the aid derived from the arguments of counsel, would more
frequently lead to accurate conclusions. On the other hand, the judiciary is
not infallible; and an error by it would admit of no remedy but a more distinct
expression of the public will, through the extraordinary medium of a
convention; whereas, an error by the legislature admits of a remedy by an
exertion of the same will, in the ordinary exercise of the right of suffrage—-a
mode better calculated to attain the end, without popular excitement. It may be
said, the people would probably not notice an error of their representatives.
But they would as probably do so, as notice an error of the judiciary; and,
beside, it is a postulate in the theory of our government, and the very basis
of the superstructure, that the people are wise, virtuous, and competent to
manage their own affairs; and if they are not so, in fact, still every question
of this sort must be determined according to the principles of the
Constitution, as it came from the hands of its framers, and the existence of a
defect which was not foreseen, would not justify those who administer the
government, in applying a corrective in practice, which can be provided only by
a convention... .