Early Notions of Justice
The administration of justice, they Chief task of the judiciary, is to day universally a function belonging exclusively to the state. But it has not always been so. In early times the state lacked judicial organs and, indeed, the administrations of justice was not regarded as a function of the state.
The First notion of justice was found in the idea of revenge or retaliation, which was the recognized right of the individual victim of a wrong or that of his friends and relatives. It first took the form of the “blood-feud” and later the milder form of the “wer” or money payment as compensation for the injury inflicted This was the remedy in the case of purely private offenses. There was, however, no executive machinery by which the payment or acceptance of the “wer” could be enforced against the wrongdoer or the victim. For offenses so gross that they outraged the moral sense of the community, the drastic remedy of expulsion from the , community was resorted to. These were the so-called “bootless” crimes for which a money payment could not atone.
Administration of Justice Becomes a State Function.
In the course of time the king came to the aid of the clan by compelling the avenger to accept the “wer” and the offender to pay it. Likewise he assumed the responsibility for the punishment of bootless crimes, which were regarded as offenses against himself.
In time there developed the idea of the “king’s peace,” and the notion that any offense which involved disorder or violence was an attack upon that peace to which the king could not be indifferent. The idea finds expression to-day in the form of indictments which in England read. “Against the peace of our Sovereign Lord the King. Gradually, the notion of the “king’s peace” was extended to embrace offenses, such as theft, which did not normally involve disorder or violence against himself. This marked the beginning of the idea that crime is an offense not merely against the individual victim but also against the state and that it belonged to the state to see that it was properly punished.
For a long time, however, the state was unable to make good its claim to what is now recognized as an exclusively state function. It had formidable rivals in the clan, the feudal lords, and the church, each of which claimed and exercised the right to administer justice in certain cases. With the development of the royal power and the consolidation of national states these rivals were ultimately overcome and they lost the power of administering justice, which passed to the state.
Until a comparatively recent date, however, remnants of feudal justice survived in some of the continental European states, notably in Germany, and in England where the church courts exercised civil jurisdiction in certain cases until far into the nineteenth century. To-day the transformation is complete in all modern states and the administration of justice, as stated above, is an exclusive function of the state.
Necessity of Judicial Organs.
Considering that one of the primary objects for which the state was established was the creation and protection of individual rights, the necessity of a judicial organ organs as the means through which this object might be accomplished has been recognized from early times. A society without legislative organs is conceivable, and indeed, fully developed legislative organs did not make their appearance in the life of the state Until modern times, but a civilized state without judicial organs and machinery is hardly conceivable.
In the absence of legislative organs the courts might apply rules derived from other sources, for example, from their own previous decisions or from custom, as they did in fact, in many early communities, but it is impossible to imagine any satisfactory substitute for courts of justice. “It is indispensable,” said an eminent American jurist, “that there should be a judicial department to ascertain and decide rights, to punish crimes, to administer justice, and to protect the innocent from injury and usurpation.” “Where there is no judicial department to interpret and execute the law, to decide controversies, and to enforce rights, the government must either perish.” said Chancellor Kent “by its own imbecility or the other departments of government must usurp powers, for the propose of commanding obedience, to the destruction of liberty.”
Not only ate judicial organs a necessity but, as Lord Bryce remarked, there is no better test of the excellence of a government than the efficiency of its judicial system, for nothing more nearly touches the welfare and security of the average citizen than the feeling that he can rely on the certain and prompt administration of justice. “If the law be dishonestly administered, the salt has lost its flavor, if it be weakly or fitfully enforced, the guarantees of order, fail, for it is more by the certainty than by the severity of punishment that offenders are repressed. If the lamp of justice goes out in darkness, how great is that darkness !
Non-Judicial Functions of the Courts
Judicial tribunals are usually thought of as agencies for the adjudication of civil controversies between individuals and between them and the state and for the trial of persons accused of crime. This is undoubtedly their chief function, but it is not their whole function. In practice they perform a variety of miscellaneous duties which are not strictly judicial in character. Thus they frequently, in America at least, appoint certain local of officials, choose their own clerical and other functionaries, grant licenses, appoint guardians and trustees, admit wills to probate, administer the estates of deceased persons, appoint receivers of railroads which are unable to meet their financial obligations, etc. More important still, they issue injunctions to prevent the commission of wrong and injury (preventive adjudication) and writs of various kinds such as mandamuses to compel public officers to perform their legal duties and injunctions to restrain them from doing what the law forbids.
They not only decide specific controversies which come before them in the form of actions or suits, but in some countries, notably England, they frequently pronounce what are called “declaratory judgments,” that is, declarations of what is right or what the law requires when such opinions are requested by interested parties, without the necessity of going through the form of the trial of a specific case. This function of the courts has not been generally introduced in the United States, but there is at present considerable demand for it, and recently a number of states have provided for it by legislation. A uniform act drafted by the National Conference of Commissioners of Uniform State Laws in 1922 for this purpose has been adopted by a few states. It is regrettable that American lawyers generally have been slow to admit the competence of the courts to pronounce judgments except in litigated cases or controversies which come before them in the usual course.
A somewhat similar function of the courts, exercised in many countries, is that of giving advisory opinions on questions of law when requested by the executive or the legislature. In England, as is well known, the crown may and not infrequently does call upon the Judicial Committee of the Privy Council ,for its opinion and advice upon questions of law, and , it is settled that the House of Lords when exercising its function as the supreme court of appeal may request the Opinions of any of the judges? In Canada the Supreme Court is charged with giving advisory opinions on questions of law to the governor in council and thirty such opinions are said to have been given since its establishment in 1875. In most of the Canadian provinces the highest courts are charged with a similar function. In Austria, Bulgaria, Columbia, Costa Rica, Panama, Salvador, and Sweden the principle of the advisory opinion in one form or another is found. In at least thirteen states of the American union it is likewise found. In Massachusetts, New Hampshire, Maine, and Rhode Island it has existed from the first, and the Supreme Court of Massachusetts has given some one hundred and fifty advisory opinions either to the governor or to the legislature since 1780.
When the constitution of the United States was being framed, a proposal was made that each house of Congress as well as the President should have authority to require the Opinions of the Supreme Court upon important questions of law and upon solemn occasions, but it was not adopted. As is well known, President Washington, in 1793, with the approval of the cabinet, requested the opinion of the court on twenty-nine questions relative to the obligations of the United States to France under the treaty of alliance of 177 8, but the court, doubting the ‘propriety of giving opinions in cases not actually before it for decision, declined to comply with the request and the precedent thus set has never been departed from.
The preponderance of Opinion of American lawyers is hostile to the idea of advisory opinions, on the ground that the giving of such opinions is not an appropriate judicial function. But eminent American authority to the contrary is not lacking.
Right of the Courts to Declare Acts of the Legislature Unconstitutional.
An extraordinary function exercised by the courts of some countries, either in pursuance of authority expressly conferred by the constitution or assumed by them as inherent in or incidental to the judicial power, is that of passing upon the constitutionality of statutes enacted by the legislature and of refusing to give effect to those which are contrary to the constitution, or which, as it is commonly said in Europe, are ultra vireos or in excess of the authority of the legislature which enacted them. As is well known, this so-called doctrine of the unconstitutionality of statutes and the power of the courts to enforce it originated in the United States, where it has been followed by both federal and state courts from the beginning.
Early American Practice.
As early as 1780 the highest court of New Jersey laid down the doctrine and acted upon it in refusing to enforce an act of the state legislature. Six years later the principle was announced and followed by the highest court of Rhode Island in a noted case, and shortly thereafter by the courts of North Carolina and Virginia. Neither the federal constitution nor any of the state constitutions expressly recognize or sanction the principle, yet it has always been considered a part of state and federal jurisprudence, and both the state and the federal courts have without exception acted in accordance there with, and their action has received the general acquiescence of the people. Indeed, as Dicey observes, it is considered not only the right, but the duty, of every judge in the United States to treat as void any enactment which violates the constitution. It was asserted to be a right and duty by a federal judge for the first time in 1795, when, in charging a jury, he said: “I take it to be a clear position that if a legislative act oppugns a constitutional principle, the former must give way and be rejected on the score of repugnance.
I hold it to be a position equally clear and sound that in such a case it will be the duty of the court to adhere to the constitution and to declare the act null and void.” In 1803 the United States Supreme Court, in the celebrated case of Marbury v. Madzson first acted upon the principle by holding an act of Congress to be inoperative on account of its repugnance to a provision of the federal constitution. Since then the Supreme Court has set aside fifty-three acts of Congress wholly or in part, and over three hundred state statutes. How many acts of the state legislatures have been pronounced unconstitutional by the courts of the states is not known, but the number probably reaches into the thousands.
Hamilton’s Defense of the Doctrine.
Although, as has been said, the federal constitution contains no provision which could be construed as conferring upon the courts such power over the acts of the legislature,it was understood by the statesmen of 1787- 1789 as being an inherent part of the judicial power and needed no express authority for its exercise. Hamilton, in 1788, in advocating the ratification of the, constitution, asserted that the courts undoubtedly possessed the power to pronounce legislative acts void when contrary to the constitution, and he supported the right by a line of argument which ‘has never been surpassed by its clear, convincing, and logical statement. Addressing himself to the contention which had been advanced that the exercise of such a power involved the superiority of the judiciary over the legislative power, he declared: “There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor or commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be_valid. To deny this, would be to affirm that the deputy is greater than the principal that the servant is above his master; that the. representatives of the people are superior to the people themselves, that mere men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
He pointed out that it could not have been presumed that the constitution which specified the powers conferred upon the legislature intended in the same breath to make the legislature the judge of it’s own powers and to establish the principle that the construction placed by it upon the extent of those powers was to be conclusive upon the other departments. “A constitution is in fact and must be regarded,” Hamilton went on to say, “as a fundamental law.” It therefore belongs to the judiciary to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be a variance between the two, that which has the superior obligation and validity ought, of course, to be preferred or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. “Nor does this doctrine by any means,” he said, “suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental.”
The Case of Marbury v. Madison
Chief Justice Marshall, in the case of Marbury v. Madison, referred to above, analyzed the question in all its bearings and with the logic and insight of which he was a master. Following up Hamilton’s argument, he showed that the limitations of a written constitution could have no meaning if those upon whom they were imposed were left free to judge of their nature and extent. There must be some supreme authority other than that which is limited, capable of judging in such cases and with power to compel respect for the limitations. Speaking of the government of the United States, he said: “The powers of the legislature are defined and limited and that these limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained?
The distinction between a government with limited and unlimited-powers is abolished, if those limits do not confine the persons en whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable When the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law, if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power, in its own nature illimitable. The great chief justice concluded that it is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule.
If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution, if both the law and the constitution apply to a particular case, so that the court must either decide that case conformable to the law, disregarding the constitution, or conformable to the constitution, disregarding the law, the courts must determine which of these conflicting rules govern the case. This is the very essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution and not such ordinary act must govern the case to Which they both apply.
“The courts,” said the late judge Cooley, “sit not to review or revise the legislative action, but to enforce the legislative will and it is only where they find that the legislature has failed to keep within the Constitutional limits that they are at liberty to disregard its action; and in doing. So they only do what every private citizen may do in respect to the mandates when the judges assume to act and to render judgment or decrees without jurisdiction. In exercising this high authority the judges claim no judicial supremacy, they are Only the administrators of the public will. If an act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden by the constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law.”
European Practice – Germany.
This function of the judiciary, first exercised by the courts in the United States, was for a long time unknown in practice in Europe. There the principle was universal that the legislature itself was the sole judge of its powers, and the right of the courts to declare its acts unconstitutional and to treat them as null and void was not admitted and it was not exercised in practice. In the old German Empire (1871-1919) it was admitted, however, that the courts had the power to decide whether acts of the legislature whose validity was contested were formally valid that is, whether they had been passed in accordance with the requirements of the constitution and promulgated by the head of the state, but their right to judge of the material validity of legislative acts, that is, whether their enactment was within the constitutional power of the legislature was not recognized
Nor was it generally claimed or exercised in fact by the courts . There Was one exception to this principles. It was admitted that the Imperial Court (The Reichsgericht ) had the power to determine whether a law passed by a state legislature was Contrary in a material sense to the imperial constitutions or an imperial law, and this power was exercised b the Imperial Court on a number of occasions. The German Empire being federally organized, the exercise of such a power by the Imperial Court or some Other imperial authority was necessary to insure the supremacy of the imperial constitutions and laws and to keep the states within the; sphere marked out for them. But the power of the Imperial Court to judge of the constitutionality of imperial law was not admitted, nor was it ever exercised by the Court. With regard to ordinances (Verordnungen), the authorities were practically unanimous that the courts had the power to pass on their validity except where, as in Prussia, the constitution expressly forbade it.
The new German constitution (Art. 13) affirms the supremacy of the national laws over State laws and declares that in case of differences of opinion as to whether a-state law is compatible with a law of the Reich, the competent national or state authority may request a decision from a superior judicial court of the Reich in accordance With the requirements of a special national law. A national law of April 8, 1920, designates the Supreme Court at Leipzig as the tribunal competent to decide such questions. As stated above, the courts exercised this power under the old constitution, but the decision in such cases Was conclusively between the parties. Under the new constitution, the question may be raised as an independent issue at the instance of either the national government or a state government, and when a decision has been render by the Supreme Court that a particular state law is incompatible with a national law, the effect is general, and the law is null Supreme the future.
No power is expressly conferred on the Court to declare a national law unconstitutional, but the civil division of the Supreme Court (Reichsgericht) on November 4, 1925, held that notwithstanding the silence of the constitution the court was competent to pass on the question of the unconstitutionality of national laws. The new constitution of Prussia (Art. 87) provides that constitutional conflicts shall be decided by the Prussian state supreme court, but this was probably not intended to confer on the court power to declare null and void acts of the legislature which are contrary to the constitution.
The 1920 constitution of the Austrian republic (Art. 140) conferred on the Supreme Constitutional Court jurisdiction, upon application of the federal ministry, to decide upon the unconstitutionality of federal laws. Application by the ministry was not, however, necessary in case the question of unconstitutionality was raised in an actual case before the court. In that event the court could decide the question on its own responsibility without a ministerial request. This principle differs from that followed in the United States in that a decision upon the question of unconstitutionality could be obtained somewhat as an advisory judicial Opinion may be, that is, upon the request of the government and not exclusively by the plaintiff in a suit. But this interesting system of judicial review was abolished by the Austrian constitution of 1934.
Other European Countries.
The constitution of Czechoslovakia (Introductory Law, Art. 1) lays down the principle that legislative enactments which are in conflict with the constitution are invalid. As in Austria, jurisdiction to decide upon their unconstitutionality is conferred upon a special “constitutional” tribunal, the judges of the ordinary courts being limited merely to the determination of the question whether the law has been properly promulgated by the president of the republic (Art. 102). In the cases of ordinances, however, they may go further and pronounce upon their material validity. Within the first six years under the constitution, the “constitutional court” had occasion to pronounce several acts of the legislature void because of their inconsistency with the constitution. The new constitutions of Finland and Yugoslavia appear to contain no pronouncement on the question that of Poland expressly declares that the courts shall have no power to inquire into the validity of duly promulgated statutes (Art. 81).
In Switzerland, where the federal system of government is found, the federal supreme court has, as in Germany, power to declare invalid acts of the cantonal legislatures which are in conflict With the federal constitution, but it cannot inquire into the constitutionality of laws passed by the federal legislature.
The constitution of Rumania (1923) expressly confers upon the court of appeal the right to judge the constitutionality of laws and to refuse to apply those which are unconstitutional. Such decision, however, is limited to the case decided (Art. 103). The court cannot, therefore, render a decision upon request of the government, in a hypothetical case.
In Norway it is established by judicial precedent that the courts may pass upon the question of the unconstitutionality of the laws. The same right is recognized by numerous decisions of the supreme court of Greece.
It will be seen from this summary that the American doctrine of unconstitutionality has made considerable headway in Europe, especially in recent years, and the increasing favor with which it is regarded by Continental jurists indicates that it is likely to be still further extended in the future. In the majority of Continental states, however, the rule still prevails that the legislature is the sole judge of its powers and that whatever it enacts in the form of law the courts are bound to apply, even though it may be clearly in conflict With the express prescriptions of the constitution. In Great Britain the very keystone 0f the constitution is the supremacy of parliament, and if that body should enact a law infringing upon the most sacred constitutional rights of the people, public opinion might pronounce it unconstitutional, but no court could dare Claim or exercise the right to do so and it would be applied as if it were expressly authorized by the constitution. The application of the doctrine of unconstitutionality in Great Britain is found only in the right of the Judicial Committee of the Privy Council (the court 0of appeals in cases appealed from the courts of the British colonies and dominions) to declare unconstitutional an act of a colonial or dominion legislature. The British courts, however, exercise freely the right to declare null and void orders in Council or other executive acts which are deemed to be unconstitutional or contrary to international. law (see _e.g, the case of the Zamora).
French Theory and Practice.
In France, likewise, the supremacy of parliament is a fundamental constitutional principle and any law enacted-by it and duly promulgated by the president of the republic must be applied by the courts whether it is in accord with the constitution or not. The question came before the French Court of Cassation for the first time in 1833 in acase involving the constitutionality of a press law passed by parliament which was plainly in violation of Article 69 of the constitutional charter of 1830. A powerful appeal was made to the court by an eminent French jurist, to declare the law unconstitutional, and he pointed out that if the parliament could modify or abrogate with impunity an article of the constitution, France in reality had no constitution, and the limitations which it imposed on the parliament were futile. But the court decided that it had no power to pronounce any law unconstitutional. In the following year the court a affirmed this decision and it has been followed ever since. It has long been established, however, that the judicial courts may refuse to impose fines for the violation of illegal ordinances and that the Council of State (the supreme administrative court) may annul ordinances (with a few exceptions) issued by the administrative authorities including even those of the president of the republic, which are ultra wires, that is, in excess of the legal competence of those issuing them a power which is freely and often exercised by the Council of State.
In view of the fact that a large and increasing amount of French legislation today is in the form of ordinances issued by the president of the republic, the actual degree of judicial control in France, is very considerable.
As stated above, however, formal acts of parliament are still completely removed from all judicial control. It is true that since there is no “due process of law” clause in the French constitution and no express limitations or prohibitions on the legislative power, acts of parliament in violation of the constitution are almost impossible, and consequently if the courts had the power to declare null and void unconstitutional acts of parliament the occasions for exercising it would be very rare-unless, of Course, it be admitted that the Declaration of Rights of 17 89 is, as Duguit and others argue, to all intents and purposes a part of the existing constitutional law of France. Otherwise, the rights which the Declaration affirms are, as Esmein maintains, merely dogmas and not enforceable prohibitions on the power of the parliament. For that reason proposals have been made in the French parliament at different times providing for the formal incorporation in the constitution of 1875 of,the principles of the Declaration, and, in order that they may be made binding upon parliament, a constitutional provision that the Court of Cassation or a specially created constitutional court be given power to annul acts of parliament which are in violation of those principles“
The French generally have refused to admit the right of the courts to declare acts of parliament unconstitutional, first, because they consider that it would be a violation of the sacrosanct theory of the separation of legislative and judicial powers proclaimed in 17 89 and 1790, second, because it would lead to the supremacy of the judiciary over the legislature-the one organ Which represents the people and which is elected to express their sovereign will , and third, because it would in all likelihood provoke conflicts between the legislative and judicial authorities and put into the hands of the courts the power to obstruct reforms through legislation-a power which was exercised by the parliaments (judicial bodies) before the Revolution and the a memory of which caused the Revolutionists to pass a law in 1790 (still in force) which forbids the courts to interfere with or suspend the execution of legislative acts.
Nevertheless, there have been able advocates of the American doctrine of judicial review and control, from the time of the establishment of the Third Republic and in recent years the number of eminent French jurists who approve it has greatly increased. Some of the most distinguished of them, notably Duguit, Jeze, and Barthelemy, maintain not only that the introduction of the practice in France is desirable, but that in fact the courts already have the power and that all they lack is the courage to exercise it. Jeze and Barthélemy, in a learned opinion which they gave to a street railway company of Bucharest in 1912, maintained that when a state adepts a system which distinguishes between Constitutional and Ordinary laws, between legislative, executive, and judicial powers, and organizes a system of independent judicial tribunals, it thereby implicitly confers upon the latter, as a natural and logical consequence, without the necessity of saying so explicitly, the power and the duty of passing upon the constitutionality of laws, contested before it and the power and the duty of refusing to apply laws which are contrary to the constitution. The Supreme Court of Rumania adopted fully this view of the matter.
In France it was ably defended by Mm. Hauriou and Duguit. Duguit in his earlier writings refused to admit the right or the expediency of judicial control, but in his later works he confesses that he was in error and that today he “accepts without hesitation” the doctrine as the “necessary and logical consequence of the hierarchy of the laws.” He agrees with Hauriou that a judge ‘who decides on a conflict arising in a particular case between a fundamental law and an ordinary law does not meddle (simmiscer) in any manner with the exercise of the legislative power, he neither arrests nor suspends the execution of a law, and if the inferior law is not applied, that does not result at all from the decisions of the judge but from the authority of the superior law which is imposed upon him as upon the ordinary legislator. To compel the courts to apply a law, which in fact is no law because those who made it exceeded their power is he says, to compel them to violate the constitution, the effect of which is to reduce them to a situation of dependence upon the legislature, which is itself a violation of the principle of the separation of powers. Regarding the power of the French judge in this connection he says there is no positive prescription in the constitution which denies him this power on the contrary, the texts Which consecrate the principle of the separation of powers give it to him by implication.
Duguit expresses the hope that the American doctrine of judicial control will soon be introduced into France, and he predicts that in the near future the right of the Court of Cassation, or the Council of State, or perhaps both, to exercise the same function as that of the United States Supreme Court in respect to unconstitutional legislation will be recognized and exercised.
Judicial Control of Unconstitutional Legislation in the British Dominions and Latin America.
Outside Europe the doctrine of judicial review and veto has found more favor. In the Dominion of Canada it is well settled that acts of the dominion and the provincial parliaments which are in conflict with the British North America Act, and provincial acts which are contrary to acts of the dominion parliament, may be declared null and void because of their unconstitutionality (the Canadians prefer to employ the term ultra vires), and, as stated above, the Judicial Committee of the Privy Council at London will upon appeal declare those which are unconstitutional to be of no effect.
The Australian Commonwealth Act (Art. 109) expressly declares that “when a law of a state is inconsistent with a law of the commonwealth, the latter shall prevail and the former shall to the extent of its inconsistency be invalid. This article does not directly confer upon the courts the power to decide the question of invalidity, but they have, as in the United States, assumed it on the principle that it is an incident of the judicial power and as such belongs of right to all courts. Both the courts of the commonwealth and those of the states have from the first exercised the power, but owing to the absence of a “due process of law” clause in the Commonwealth Act and the existence of comparatively few constitutional prohibitions upon the power of the states, the number of cases in which the constitutionality of state laws has been contested is relatively small.
In Australia not only have state laws been held unconstitutional but in-some cases acts of the commonwealth legislature have likewise been pronounced invalid by the High Court. The practice in the Union of South Africa is the same. The new Irish Free State constitution expressly confers upon the courts power to declare null legislative acts which are in contravention of the constitution or the Anglo-Irish treaty, under reserve of the right of appeal to the British Privy Council.
In Latin America the doctrine of judicial control in one degree or other exists in Argentina, Brazil, Bolivia, Columbia, Costa Rica, Cuba; Haiti, Honduras, Mexico, and Venezuela. In several of them, notably Brazil, the United States doctrine has been fully adopted and both national and state laws which are in conflict with the constitution are freely annulled by the highest courts, although, as compared with the practice in the United States, the cases in which laws are pronounced unconstitutional are relatively rare.
The constitution of China proclaimed October 10,1923 (Art 108), expressly affirms that laws in conflict with the constitution are null and void.
Justification and Merits of Judicial Control in Federal States.
In considering the desirability of the principle of judicial control of legislation it is important to distinguish between its exercise in respect to state or local legislation in countries having the federal system of government and its exercise in respect to national legislation irrespective of whether the system of government is federal or unitary. As pointed out in a preceding chapter, the distinguishing characteristic of a federal union is the division of competence between the union and the several states or provinces which compose it. This division is made by the federal constitution or organic act of union, and either the powers of the central government are enumerated in the constitution or organic act, the residuum of power being left to the member states or pro-vinces or (as in Canada) the powers of the component states provinces are enumerated, the residuum being left to the central government. In either case, the constitution marks out a sphere of action and authority for each, upon which the other is for hidden to encroach.
To maintain this equilibrium and insure the supremacy of each in the sphere allotted to it, some supreme umpire, arbiter, or judge is necessary to enforce respect for the constitutional division of competence and to decide issues arising out of conflicts of authority, otherwise perpetual encroachments and controversies would result and the very existence of the federal system would be endangered. In all existing federal systems, the judiciary now serves as such an umpire or judge and there is a general agreement that there is no other organ of government ‘so well adapted to play this delicate, impartial, and indispensable role. Had not the Supreme Court of the United States assumed and exercised that role, it would be difficult to imagine what would have been the history of the American union.
Merits of Judicial Control in Unitary States.
The necessity of judicial control of legislation in unitary states however, is far less, for the reason that there is no equilibrium, no division of competence , to be maintained. Likewise in states, such as France, having constitutions which do not impose formal limitations or prohibitions upon the legislative power, or which lack what 1n the United States are known as bills of rights and due process of law clauses, the importance of judicial control is not very great and, as stated above, if the courts had the power to pronounce the nullity 0f unconstitutional acts of the legislature, there would be few occasions for the exercise of the power, since few or no acts of the legislature could be unconstitutional. In states, however, having written constitutions Which are largely instruments of grants and prohibitions of power, and where in consequence of elaborate bills of rights, a large domain of individual liberty has been created which is intended to be sacred from governmental intrusion and Encroachment, the principle of judicial review and control assumes great importance.
Unless the judiciary, or some other equally -Suitable organ or authority, possesses the power to enforce the constitutional limitations and prohibitions against the legislature they would become mere “scraps of paper,” mere admonitions to the legislature without binding effect. As Gremieux, an eminent French jurist, said in 1833 in his argument before the Court of Gassation if the court has no power to refuse to apply an act of parliament which is clearly‘in violation of the constitution so that the parliament might freely violate it with impunity, it follows, that the constitution is merely a “rope of sand” and has no reaexistence. Duguit, one of the most distinguished of living French jurists, himself a recent convert to the doctrine of judicial control very properly asserts that in a country where the courts do not have the power to refuse to give effect to laws which are. clearly contrary to the constitution the people do not really live under a regime of law.
Whether this be true or not, it is incontestable that in the absence of such a power the distinction between constitutional and statutory law breaks down, the supremacy of the Constitution has no meaning, the legislature is the judge of its own powers and the enjoyment by the individual of the rights which the constitution confers upon him is uncertain and precarious.
Criticism of Judicial Control.
Nevertheless, the principle of judicial control has always had and still has vigorous opponents even in the United States, where it originated and where it has found most favor. Its Opponents attack it both upon principle and upon the basis of the results to which it has led in practice. They criticize it because it is a violation of the cherished doctrine of the Separation of legislative and judicial powers and because it virtually leads to the supremacy of the judicial over the legislative organs. By allowing the courts to “veto,” “nullify,” or “invalidate” laws solemnly enacted by the chosen representatives of the people, it in effect makes them the final legislators and controllers of public policy. In the United States it makes the governmental system, in the language of Professor Burgess, an “aristocracy of the robe.” Since generally the judges are not chosen by the people, not responsible to them, and in no my subject to their control, the system is, in the language of one of its critics, really a “judicial oligarchy.”
The effect, moreover, it is argued, is to impose legislative and political duties upon the courts, in violation of the sound principle that the only natural and legitimate function of a judge is to decide legal controversies. In the United States the practice of the courts has in recent years been criticized not only by radicals, who are opposed to the very principle of judicial control, but also by eminent conservative jurists, who while in sympathy with the general principle, have reproached the courts for their “hostile or suspicious attitude” toward economic and social legislation, which is imperatively required by the conditions of modern life.
In declaring unconstitutional in many cases legislation of this kind, the courts, they charge, have insisted upon applying eighteenth-Century theories of economics and social policy to new and changed conditions and have shown a greater regard for the rights of property than for human rights. They emphasize the unfitness of the courts, due especially to their lack of information relative to the facts of modern economic and social life, for passing judgment upon the value or necessity of such legislation. In a number of instances where state statutes have been declared void because of their’ inconsistency with state constitutions, so strong was the popular demand for the legislation thus nullified that the constitutions were amended so as to overcome the judicial veto. This was done, for example, in Colorado in 1902 and in New York in 1913.
Recall of Judicial Decisions.
The increasing frequency with which the courts in recent years have declared legislation unconstitutional led to a movement some years ago in favor of the “recall” of judicial decisions, and in 1912 the movement had the powerful support of Mr. Roosevelt. In brief, the proposal was that where the court had declared a statute unconstitutional, the matter might be submitted to a popular referendum, and if the verdict of the majority of the electorate was in favor of the law, it should be maintained as in force for the future, notwithstanding the Opinion of the court that it was unconstitutional. A provision to this effect was introduced into the constitution of Colorado in 1912, but the example has not been followed in any other states.
The proposal has been generally and severely condemned by American jurists as subversive of the independence of the judiciary and as one which would involve a blow at the very foundation of the American system of government.The American Bar Association in 1911 adopted a resolution condemning both the recall of judges and the recall of judicial decisions, and appointed a committee to conduct a campaign against them.
One reason for the opposition in the United States to the exercise by the courts of the power of judicial control over legislation is found in the frequency with which statutes have been declared unconstitutional by decisions rendered by a bare majority of the members of the court; in the case of the United States Supreme Court, by a majority of five to four. Such decisions, it is complained, are evidence of the existence of grave doubt on the part of the court as to the unconstitutionality of the statute, yet in spite of it the statute is nullified. To meet this objection it has been provided by constitutional amendment in Ohio and North Dakota that statutes may be declared unconstitutional only by an extraordinary majority of the court, and a similar proposal was made by Senator Borah in 1923 to the effect that the concurrence of seven of the nine justices of the United States Supreme Court should be required to pronounce an act of Congress unconstitutional But it has been pointed out that such a proposal, if adopted, would in reality lead to decisions by a minority of the court.
It is impossible here to consider the various criticisms of the principle of judicial control of legislation that have been made and the changes of practice or procedure which have been proposed. It must suffice to say that the criticisms have not been generally approved by public opinion in the United states, nor have the pr0posed changes commended themselves to any considerable number of American jurists. It seems likely, therefore, that both the principle and the existing practice will be maintained generally in, the future, and the fact that it has been so widely introduced in other countries in recent years would seem to indicate that it is destined ultimately to become a feature of the jurisprudence of the world.