Chapter LIV: Section 2: The judicial Power shall extend to all Cases, in Law (1)

and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

THE TWO CLASSES OF CASES AND CONTROVERSIES

By the terms of the foregoing section the judicial power extends to nine classes of cases and controversies, which fall into two general groups. In the words of Chief Justice Marshall in Cohens _v._ Virginia:[139] "In the first, their jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends 'all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.' This cause extends the jurisdiction of the Court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied, against the express words of the article. In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended 'controversies between two or more States, between a State and citizens of another State,' and 'between a State and foreign States, citizens or subjects.' If these be the parties, it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union."[140]

Judicial power is "the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision."[141] The meaning attached to the terms "cases" and "controversies" determines therefore the extent of the judicial power, as well as the capacity of the federal courts to receive jurisdiction. As Chief Justice Marshall declared in Osborn _v._ Bank of the United States, judicial power is capable of acting only when the subject is submitted in a case, and a case arises only when a party asserts his rights "in a form prescribed by law."[142] Many years later Justice Field, relying upon Chisholm _v._ Georgia,[143] and Tucker's edition of Blackstone, amended this definition by holding that "controversies," to the extent that they differ from "cases," include only suits of a civil nature. He continued: "By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the Constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the Court for adjudication."[144] The definitions propounded by Chief Justice Marshall and Justice Field were quoted with approval in Muskrat _v._ United States,[145] where the Court held that the exercise of judicial power is limited to cases and controversies and emphasized "adverse litigants," "adverse interests," an "actual controversy," and conclusiveness or finality of judgment as essential elements of a case.[146]

ADVERSE LITIGANTS

The necessity of adverse litigants with real interests has been stressed in numerous cases,[147] and has been particularly emphasized in suits to contest the validity of a federal or State statute. A few illustrations will suffice to describe the practical operation of these limitations. In Chicago and Grand Trunk Railroad Co. _v._ Wellman,[148] which originated in the courts of Michigan on an agreed statement of facts between friendly parties desiring to contest a rate-making statute, the Supreme Court ruled there was no case or controversy. In the course of its opinion, which held that the courts have no "immediate and general supervision" of the constitutionality of legislative enactments, the Court said: "Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act."[149]

In applying the rule requiring adverse litigants to present an honest and actual antagonistic assertion of rights, the Court invalidated an act of Congress which authorized certain Indians to bring suits against the United States to test the constitutionality of the Indian allotment acts, on the ground that such a proceeding was not a case or controversy in that the United States had no interest adverse to the claimants.[150] The Court has also held that in contesting the validity of a statute, the issue must be raised by one adversely affected and not a stranger to the operation of the statute,[151] and that the interest must be of a personal as contrasted with an official interest.[152] Hence a county court cannot contest the validity of a statute in the interest of third parties,[153] nor can a county auditor contest the validity of a statute even though he is charged with its enforcement,[154] nor can directors of an irrigation district occupy a position antagonistic to it.[155] It is a well settled rule that: "The Court will not pass upon the constitutionality of legislation * * *, or upon the complaint of one who fails to show that he is injured by its operation, * * *"[156] It is equally well established as a corollary that, "litigants may challenge the constitutionality of a statute only insofar as it affects them."[157]

STOCKHOLDERS' SUITS

It must be noted, however, that adversity is a relative element which the courts may or may not discover. Thus in Pollock _v._ Farmers' Loan and Trust Co.,[158] the Supreme Court sustained the jurisdiction of a district court which had enjoined the company from paying an income tax even though the suit was brought by a stockholder against the company, thereby circumventing section 3224 of the Revised Statutes, which forbids the maintenance in any court of a suit "for the purpose of restraining the collection of any tax."[159] Subsequently the Court has found adversity of parties in a suit brought by a stockholder to restrain a title company from investing its funds in farm loan bonds issued by the federal land banks,[160] and in a suit brought by certain preferred stockholders against the Alabama Power Company and the TVA to enjoin the performance of contracts between the company and the authority and a subsidiary, the Electric Home and Farm Authority, on the ground that the act creating these agencies was unconstitutional.[161] The ability to find adversity in narrow crevices of casual disagreement is well illustrated by Carter _v._ Carter Coal Co.,[162] where the President of the company brought suit against the company and its officials, among whom was Carter's father who was Vice President of the Company.[163] The Court entertained the suit and decided the case on its merits.

SUBSTANTIAL INTEREST DOCTRINE

Equally important as an essential element of a case is the concept of real or substantial interests. As a general rule the interest of taxpayers in the general funds of the federal Treasury is insufficient to give them a standing in court to contest the expenditure of public funds on the ground that this interest "is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity."[164] Likewise, the Court has held that the general interest of a citizen in having the government administered by law does not give him a standing to contest the validity of governmental action.[165] Nor can a member of the bar of the Supreme Court challenge the validity of an appointment to the Court since his "is merely a general interest common to all members of the public."[166] Similarly an electric power company has been held not to have a sufficient interest to maintain an injunction suit to restrain the making of federal loans and grants to municipalities for the construction or purchase of electric power distribution plants on the ground that the "lender owes the sufferer no enforcible duty to refrain from making the unauthorized loan; and the borrower owes him no obligation to refrain from using the proceeds in any lawful way the borrower may choose."[167] Recent cases, involving the issue of religion in the schools, reach somewhat divergent results. In Illinois ex rel. McCollum _v._ Board of Education,[168] the Court held that a litigant had the requisite standing to bring a mandamus suit challenging, on the basis of her interests as a resident and taxpayer of the school district and the parent of a child required by law to attend the school or one meeting the State's educational requirements, the validity of a religious education program involving the use of public school rooms one half hour each week. But in Doremus _v._ Board of Education,[169] decided early in 1952, the Court declined jurisdiction in a case challenging the validity of a New Jersey statute which requires the reading at the opening of each public school day of five verses of the Old Testament. Appellants' interest as taxpayers was found to be insufficient to sustain the proceeding.

Substantial Interest in Suits by States

These principles have been applied in a number of cases to which a State was one of the parties and in suits between States. One of the most important of these is State of Georgia _v._ Stanton,[170] which was an original suit in equity brought by the State of Georgia against the Secretary of War and others to enjoin the enforcement of the Reconstruction Acts. The State's counsel contended that enforcement of the acts brought about "an immediate paralysis of all the authority and power of the State government by military force; * * * [which was divesting the State] of her legally and constitutionally established and guaranteed existence as a body politic and a member of the Union." The Supreme Court dismissed the suit for want of jurisdiction, holding that for a case to be presented for the exercise of the judicial power, the rights threatened "must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity."[171] The rule of the Stanton case was applied and elaborated in Massachusetts _v._ Mellon,[172] where the State in its own behalf and as _parens patriae_ sought to enjoin the administration of the Maternity Act[173] which, it was alleged, was an unconstitutional invasion of the reserved rights of the State and an impairment of its sovereignty. The suit was held not justiciable on the ground that a State cannot maintain a suit either to protect its political rights or as _parens patriae_ to protect citizens of the United States against the operation of a federal law. Concerning the right of a State to sue in its own behalf to protect its political rights, the Court said: "In that aspect of the case we are called upon to adjudicate, not rights of person or property, not rights of dominion over physical domain, not quasi sovereign rights actually invaded or threatened, but abstract questions of political power, of sovereignty, of government."[174] However, these holdings do not affect the right of a State as _parens patriae_ to intervene in behalf of the economic welfare of its citizens against discriminatory rates set by an alleged illegal combination of carriers,[175] or the right of a State to assert its quasi sovereign rights over wild life within its domain,[176] or to protect its citizens against the discharge of noxious gases by an industrial plant in an adjacent State.[177]

ABSTRACT, CONTINGENT, AND HYPOTHETICAL QUESTIONS

Closely related to the requirements of adverse parties and substantial interests is that of a _real_ issue as contrasted with _speculative_, abstract, hypothetical, or moot cases. As put by Chief Justice Stone in Alabama State Federation of Labor _v._ McAdory,[178] it has long been the Court's "considered practice not to decide abstract, hypothetical or contingent questions," or as Justice Holmes said years earlier by way of dictum, a party cannot maintain a suit "for a mere declaration in the air."[179] Texas _v._ Interstate Commerce Commission,[180] presents a good illustration of an abstract question. Here, Texas attempted to enjoin the enforcement of the Transportation Act of 1920 on the ground that it invaded the reserved rights of the State. The Court dismissed the complaint as presenting no case or controversy, declaring: "It is only where rights, in themselves appropriate subjects of judicial cognizance, are being, or about to be, affected prejudicially by the application or enforcement of a statute that its validity may be called in question by a suitor and determined by an exertion of the judicial power."[181] Again in Ashwander _v._ Tennessee Valley Authority,[182] the Court refused to decide any issue save that of the validity of the contracts between the Authority and the Company because, "The pronouncements, policies and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the persons complaining." Chief Justice Hughes cited New York _v._ Illinois,[183] where the Court dismissed a suit as presenting abstract questions "as to the possible effect of the diversion of water from Lake Michigan upon hypothetical water power developments in the indefinite future."[184] He also cited among other cases Arizona _v._ California,[185] where it was held that claims based merely upon assumed potential invasions of rights were not enough to warrant judicial intervention.

The concepts of real interests and abstract questions again appear prominently in United Public Workers of America _v._ Mitchell.[186] Here a number of government employees sued to enjoin the Civil Service Commission from enforcing the prohibitions of the Hatch Act against activity in political management or campaigns, and to obtain a declaratory judgment that the act was invalid. Except for one of the employees none had violated the act, but they did state that they desired to engage in the forbidden political activities. The Court held that as to all the parties save the one who had violated the act there was no justiciable controversy. "Concrete legal issues, presented in actual cases, not abstractions" were declared to be requisite. The generality of their objection was regarded as really an attack on the political expediency of the Hatch Act.[187]

From the rule that courts will not render advisory opinions or write essays in political theory on speculative issues, it follows logically that they will not determine moot cases or suits arranged by collusion between parties who have no opposing interests. A moot case has been defined as "one which seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy."[188] Cases may become moot because of a change in the law, or the status of the litigants, or because of some act of the parties which dissolves the controversy.[189] Just as courts will not speculate an hypothetical question, so they will not analyze dead issues.[190] The duty of every federal court, said Justice Gray, "is to decide actual controversies by a judgment which can be carried into effect, and not give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter at issue in the case before it."[191]

POLITICAL QUESTIONS

The rule has been long established that the courts have no general supervisory power over the executive or administrative branches of government.[192] In Decatur _v._ Paulding,[193] which involved an attempt by mandamus to compel the Secretary of the Navy to pay a pension, the Supreme Court in sustaining denial of relief stated: "The interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied, that such a power was never intended to be given to them."[194] It follows, therefore, that mandamus will lie against an executive official only to compel the performance of a ministerial duty which admits of no discretion as contrasted with executive or political duties which admit of discretion.[195] It follows, too, that an injunction will not lie against the President,[196] or against the head of an executive department to control the exercise of executive discretion.[197] These principles are well illustrated by Georgia _v._ Stanton,[198] Mississippi _v._ Johnson,[199] and Kendall _v._ United States ex rel. Stokes.[200]

Origin of the Concept

The concept of "political question" is an old one. As early as Marbury _v._ Madison,[201] Chief Justice Marshall stated: "The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." The concept, as distinguished from that of interference with executive functions, was first elaborated in Luther _v._ Borden,[202] which involved the meaning of "a republican form" of government and the question of the lawful government of Rhode Island among two competing groups purporting to act as the lawful authority. "It is the province of a court to expound the law, not to make it," declared Chief Justice Taney. "And certainly it is no part of the judicial functions of any court of the United States to prescribe the qualification of voters in a State, * * *; nor has it the right to determine what political privileges the citizens of a State are entitled to, unless there is an established constitution or law to govern its decision."[203] The Court went on to hold that such matters as the guaranty to a State of a republican form of government and of protection against invasion and domestic violence are political questions committed to Congress and the President whose decisions are binding upon the courts.[204]

Exemplifications of the Doctrine

From this case and later applications of it, a political question may be defined as a question relating to the possession of political power, of sovereignty, of government, the determination of which is vested in Congress and the President whose decisions are conclusive upon the courts. The more common classifications[205] of cases involving political questions are: (1) those which raise the issue of what proof is required that a statute has been enacted,[206] or a constitutional amendment ratified;[207] (2) questions arising out of the conduct of foreign relations;[208] (3) the termination of wars,[209] or rebellions;[210] the questions of what constitutes a republican form of government,[211] and the right of a state to protection against invasion or domestic violence;[212] questions arising out of political actions of States in determining the mode of choosing presidential electors,[213] State officials,[214] and reapportionment of districts for Congressional representation;[215] and suits brought by States to test their political and so-called sovereign rights.[216] The leading case on the evidence required to prove the enactment of a statute is Field _v._ Clark,[217] where it was held that the enactment of a statute is conclusively proved by the enrolled act signed by the speaker of the House of Representatives and the President of the Senate, and the Court will not look beyond these formalities of record by examining the journals of the two houses of Congress or other records. Similarly, the Court has held that the efficacy of the ratification of a proposed constitutional amendment in the light of previous rejection or subsequent attempted withdrawal is political in nature, pertaining to the political departments, with the ultimate authority in Congress by virtue of its control over the promulgation of the adoption of amendments.[218] Simultaneously, the Court ruled that the question of the lapse of a reasonable length of time between proposal and ratification is for Congress to determine and not the Court.[219]

Recent Cases

A few cases will suffice to illustrate the application of the concept of political questions since 1938. In Colegrove _v._ Green,[220] a declaratory judgment was sought to have the division of Illinois into Congressional districts declared invalid as a violation of the equal protection of the laws. Justice Frankfurter in announcing the judgment of the Court, in an opinion in which Justices Reed and Burton joined, was of the opinion that dismissal of the suit was required both by the decision in Wood _v._ Broom,[221] that there is no federal requirement that Congressional districts shall contain as nearly as practicable an equal number of inhabitants, and because the question was not justiciable. Justice Rutledge thought that Smiley _v._ Holm[222] indicated that the question was justiciable but concurred in the result on the ground that the case was one in which the courts should decline to exercise jurisdiction.[223] Justice Black in a dissent supported by Justices Douglas and Murphy thought that the case was justiciable and would have invalidated the reapportionment, leaving the State free to elect all of its representatives from the State at large.[224] In MacDougall _v._ Green,[225] however, the Court seemed to regard as justiciable the question of the validity of the provision of the Illinois Election Code requiring that a petition for the nomination of candidates of a new political party be signed by 25,000 voters including at least 200 from each of at least 50 of the States' 102 counties, for it went on to sustain the provision in a brief _per curiam_ opinion. In Ludecke _v._ Watkins,[226] the Court held, as it had earlier, that the determination of the cessation of a state of war is a question for the political branch of the Government and not for the courts. Nevertheless, the Court actually found a state of war to exist between the United States and Germany after the end of hostilities, and ruled that an enemy alien is not entitled to judicial review in a deportation proceeding. Very recently in South _v._ Peters,[227] the Court refused to pass upon the validity of the county unit scheme used in Georgia for the nomination of candidates in primary elections.

ADVISORY OPINIONS

Perhaps no portion of Constitutional Law pertaining to the judiciary has evoked such unanimity as the rule that the federal courts will not render advisory opinions. In 1793 the Supreme Court refused to grant the request of President Washington and Secretary of State Jefferson to construe the treaties and laws of the United States pertaining to questions of international law arising out of the wars of the French Revolution. After convening the Court which considered the request, Chief Justice Jay replied to President Washington concerning the functions of the three departments of government: "These being in certain respects checks upon each other, and our being Judges of a Court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been _purposely_ as well as expressly united to the _Executive_ departments."[228] Since 1793 the Court has frequently reiterated the early view that the federal courts organized under article III cannot render advisory opinions or that the rendition of advisory opinions is not a part of the judicial power of the United States.[229]

Even in the absence of this early precedent, the rule that constitutional courts will render no advisory opinions would have logically emerged from the rule subsequently developed, that constitutional courts can only decide cases and controversies in which an essential element is a final and binding judgment on the parties. As stated by Justice Jackson, when the Court refused to review an order of the Civil Aeronautics Board, which in effect was a mere recommendation to the President for his final action, "To revise or review an administrative decision which has only the force of a recommendation to the President would be to render an advisory opinion in its most obnoxious form--advice that the President has not asked, tendered at the demand of a private litigant, on a subject concededly within the President's exclusive, ultimate control. This Court early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive. It has also been the firm and unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action."[230] The early refusal of the Court to render advisory opinions has discouraged direct requests for advice so that the advisory opinion has appeared only collaterally in cases where there was a lack of adverse parties,[231] or where the judgment of the Court was subject to later review or action by the executive or legislative branches of government,[232] or where the issues involved were abstract or contingent.[233]

DECLARATORY JUDGMENTS

The rigid emphasis placed upon such elements of the judicial power as finality of judgment and an award of execution in United States _v._ Ferreira,[234] Gordon _v._ United States[235], and Liberty Warehouse _v._ Grannis,[236] coupled with the equally rigid emphasis upon adverse parties and real interests as essential elements of a case or controversy in Muskrat _v._ United States,[237] created serious doubts concerning the validity of a proposed federal declaratory judgment act. These were dispelled to some extent by Fidelity National Bank _v._ Swope,[238] which held that an award of execution is not an essential part of every judgment and contained general statements in opposition to the principles of the Grannis and Willing cases. Then in 1933 the Supreme Court entertained an appeal from a declaratory judgment rendered by the Tennessee Courts in Nashville, C. & St. L.R. Co. _v._ Wallace,[239] and in doing so declared that the Constitution does not require that a case or controversy be presented by traditional forms of procedure, involving only traditional remedies, and that article III defined and limited judicial power not the particular method by which that power may be invoked or exercised. The Federal Declaratory Judgments Act of 1934 was in due course upheld in Aetna Life Insurance Co. _v._ Haworth,[240] as a valid exercise of Congressional power over the practice and procedure of federal courts which includes the power to create and improve as well as to abolish or restrict.

The Declaratory Judgment Act of 1934

The act of 1934 was carefully drawn, and provided that: "In cases of actual controversy the courts of the United States shall have power * * * to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such." The other two sections provided for further relief whenever necessary and proper and for jury trials of matters of fact.[241] In the first case involving private parties exclusively to arise under the act, Aetna Life Insurance Co. _v._ Haworth,[242] the Court held that a declaration should have been issued by the district court, although it reiterated with the usual emphasis the necessity of adverse parties, a justiciable controversy and specific relief. In the Ashwander case it approved the refusal of the lower Court to issue a declaration generally on the constitutionality of the Tennessee Valley Authority, because the act of 1934 applied only to "cases of actual controversy." In the same case the Court itself refused to pass upon the navigability of the New and Kanawha rivers and the authority of the Federal Power Commission even at the request of the United States, on the ground that the bill did no more than state a difference of opinion between the United States and West Virginia to which the judicial power did not extend.[243] Similarly, in Electric Bond & Share Co. _v._ Securities and Exchange Commission,[244] the Court refused to decide any constitutional issues arising out of the Public Utility Holding Company Act of 1935 except the registration provisions because the cross bill in which the company had asked for a declaration that the whole act was unconstitutional was regarded as presenting a variety of hypothetical questions that might never become real.

The "Case" or "Controversy" Test in Declaratory Judgment Proceedings

The insistence of the Court upon the rule that "the requirements for a justiciable case or controversy are no less strict in a declaratory judgment proceeding than in any other type of suit,"[245] and the fact that many actions for a declaration of rights have involved the validity of legislation, where the Court is even more insistent upon the essentials of a case, have done much to limit the use of the declaratory judgment. There are, nevertheless, a number of cases, some of which involved constitutional issues, in which a declaratory judgment has been rendered. Among these are Currin _v._ Wallace,[246] where tobacco warehousemen and auctioneers contested the validity of the Tobacco Inspection Act under which the Secretary of Agriculture had already designated a tobacco market for inspection and grading; Perkins _v._ Elg,[247] where a natural-born citizen of naturalized parents who left the country during her minority sought to establish her status as a citizen; Maryland Casualty Co. _v._ Pacific Coal and Oil Co.,[248] where a liability insurer sought to establish his lack of liability in an automobile collision case; and Aetna Life Insurance Co. _v._ Haworth,[249] where a declaration was sought under the disability benefit clauses of an insurance policy. As stated by Justice Douglas for the Court in the Maryland Casualty case: "The difference between an abstract question and a 'controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment."[250] It remains, therefore, for the courts to determine in each case the degree of controversy necessary to establish a case for purposes of jurisdiction. Even, then, however, the Court is under no compulsion to exercise its jurisdiction.[251]

Cases Arising Under the Constitution, Laws and Treaties of the United States

DEFINITION

Cases arising under the Constitution are cases which require an interpretation of the Constitution for their correct decision.[252] They arise when a litigant claims an actual or threatened invasion of his constitutional rights by the enforcement of some act of public authority, usually an act of Congress or of a State legislature, and asks for judicial relief. The clause furnishes the textual basis for the fountain-head of American Constitutional Law, in the strict sense of the term, which fountain-head is Judicial Review, or the power and duty of the courts to pass upon the constitutional validity of legislative acts which they are called upon to recognize and enforce in cases coming before them, and to declare void and refuse enforcement to such as do not accord with their own interpretation of the Constitution.

JUDICIAL REVIEW

The supremacy clause clearly recognizes judicial review of State legislative acts in relation not only to the Constitution, but also in relation to acts of Congress which are "in pursuance of the Constitution," and in relation to "treaties made or which shall be made under the authority of the United States." These constitute "the supreme law of the land," and "the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." This provision was originally implemented by the famous twenty-fifth section of the Judiciary Act of 1789 which provided that final judgments or decrees of the highest courts of law or equity in the States in which a decision could be had, "where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, * * *"[253]

JUDICIAL REVIEW AND NATIONAL SUPREMACY

A quarter of a century after its enactment the validity of this section was challenged on States' Rights premises in Martin _v._ Hunter's Lessee,[254] and seven years after that in Cohens _v._ Virginia.[255] The States' Rights argument was substantially the same in both cases. It amounted to the contention that while the courts of Virginia were constitutionally obliged to prefer "the supreme law of the land" as defined in the supremacy clause over conflicting State laws it was only by their own interpretation of the said supreme law that they, as the courts of a sovereign State, were bound. Furthermore, it was contended that cases did not "arise" under the Constitution unless they were brought in the first instance by some one claiming such a right, from which it followed that "the judicial power of the United States" did not "extend" to such cases unless they were brought in the first instance in the courts of the United States. In answer to these arguments Chief Justice Marshall declared that: "A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends upon the construction of either."[256] Passing then to broader considerations, he continued: "Let the nature and objects of our Union be considered; let the great fundamental principles, on which the fabric stands, be examined; and we think, the result must be, that there is nothing so extravagantly absurd, in giving to the Court of the nation the power of revising the decisions of local tribunals, on questions which affect the nation, as to require that words which import this power should be restricted by a forced construction."[257]

JUDICIAL REVIEW OF ACTS OF CONGRESS

Judicial review of acts of Congress is not provided for in the Constitution in such explicit terms as is judicial review of State legislation, but it is nevertheless fairly evident that its existence is assumed. In the first place, the term "cases arising under the Constitution" is just as valid a textual basis for the one type of constitutional case as for the other; and, in the second place, it is clearly indicated that acts of Congress are not "supreme law of the land" unless they are "in pursuance of the Constitution," thus evoking a question which must be resolved in the first instance by State judges, when State legislation coming before them for enforcement is challenged in relation to "the supreme law of the land." Furthermore, most of the leading members of the Federal Convention are on record contemporaneously, though not always in the Convention itself, as accepting the idea.[258]

HAMILTON'S ARGUMENT

The argument for judicial review of acts of Congress was first elaborated in full by Alexander Hamilton in the Seventy-eighth Number of _The Federalist_ while the adoption of the Constitution was pending. Said Hamilton: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable 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 [legislative] agents."[259] It was also set forth as something commonly accepted by Justice Iredell in 1798 in Calder _v._ Bull[260] in the following words: "If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case." And between these two formulations of the doctrine, the membership of the Supreme Court had given it their sanction first individually, then as a body. In Hayburn's Case,[261] the Justices while on circuit court duty refused to administer the Invalid Pensions Act,[262] which authorized the circuit courts to dispose of pension applications subject to review by the Secretary of War and Congress on the ground that the federal courts could be assigned only those functions such as are properly judicial and to be performed in a judicial manner. In Hylton _v._ United States,[263] a made case in which Congress appropriated money to pay counsel on both sides of the argument, the Court passed on the constitutionality of the carriage tax and sustained it as valid, and in so doing tacitly assumed that it had the power to review Congressional acts.

MARBURY _v._ MADISON

All the above developments were, however, only preparatory. Judicial review of acts of Congress was made Constitutional Law, and thereby the cornerstone of American constitutionalism, by the decision of the Supreme Court, speaking through Chief Justice Marshall in the famous case of Marbury _v._ Madison[264] decided in February, 1803. The facts of the case briefly stated are that Marbury had been appointed a justice of the peace in the District of Columbia by John Adams almost at the close of his administration, and John Marshall who was serving simultaneously as Secretary of State failed to deliver to Marbury his commission which had been signed before the new administration had begun. One of the first acts of Jefferson was his instruction to Secretary of State Madison to withhold commissions to office which remained undelivered. Thereupon Marbury sought to compel Madison to deliver the commission by seeking a writ of mandamus in the Supreme Court in the exercise of its original jurisdiction and in pursuance of section 13 of the Judiciary Act of 1789[265] which prescribed the original jurisdiction of the Court and authorized it to issue writs of mandamus "in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States."

Marshall's Argument

In the portion of his opinion dealing with judicial review Marshall began his argument with the assumption that "the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness * * *" and, once established, these principles are fundamental. Second, the Government of the United States is limited in its powers by a written Constitution. The Constitution either "controls any legislative act repugnant to it; or, * * * the legislature may alter the Constitution by an ordinary act." But the Constitution is paramount law and written as such. "It is emphatically the province and duty of the judicial department to say what the law is. * * * If two laws conflict with each other, the courts must decide on the operation of each. * * * 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." To declare otherwise, the Chief Justice concluded, would be subversive of the very foundation of all written constitutions, would force the judges to close their eyes to the Constitution, and would make the judicial oath "a solemn mockery."[266] The Court must therefore look into some portions of the Constitution, and if they can open it at all, what part of it are they forbidden to read or obey? In conclusion the Chief Justice declared that the Constitution is mentioned first in the supremacy clause and that "the particular phraseology of the Constitution * * * confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, [of government] are bound by that instrument."[267]

Importance of Marbury _v._ Madison

The decision in Marbury _v._ Madison has never been disturbed, although it has often been criticized. Nor was its contemporary effect confined to the national field. From that time on judicial review by State courts of local legislation in relation to the local constitutions made rapid progress and was securely established in all States by 1850 under the influence not only of Marbury _v._ Madison, but also of early principles of judicial review established in the circuit courts of the United States.[268]

LIMITS TO THE EXERCISE OF JUDICIAL REVIEW

Because judicial review is an outgrowth of the fiction that courts only declare what the law is in specific cases,[269] and are without will or discretion,[270] its exercise is surrounded by the inherent limitations of the judicial process and notably the necessity of a case or controversy between adverse litigants with a standing in court to present the issue of unconstitutionality in which they are directly interested. The requisites to a case or controversy have been treated more extensively above, but it may be noted that the Supreme Court has repeatedly emphasized the necessity of "an honest and actual antagonistic assertion of rights by one individual against another,"[271] and its lack of power to supervise legislative functions in friendly proceedings, moot cases, or cases which present abstract issues.[272]

The Doctrine of "Strict Necessity"

But even when a case involving a constitutional issue is presented, the Court has repeatedly stated that it will decide constitutional questions only if strict necessity requires it to do so. Hence constitutional issues will not be decided in broader terms than are required by the precise state of facts to which the ruling is to be applied; nor if the record presents some other ground upon which to decide the case; nor at the instance of one who has availed himself of the benefit of a statute or who fails to show he is injured by its operation; nor if a construction of the statute is fairly possible by which the question may be fairly avoided.[273] Speaking of the policy of avoiding the decision of constitutional issues except when necessary Justice Rutledge, speaking for the Court, declared in 1947: "The policy's ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system."[274]

The Doctrine of Political Questions

A third limitation to the exercise of judicial review is the rule, partly inherent in the judicial process, but also partly a precautionary rule adopted by the Court in order to avoid clashes with the "political branches," is that the federal courts will not decide "political questions."[275]

The "Reasonable Doubt" Doctrine

A fourth rule, of a precautionary nature, is that no act of legislation will be declared void except in a very clear case, or unless the act is unconstitutional beyond all reasonable doubt.[276] Sometimes this rule is expressed in another way, in the formula that an act of Congress or a State legislature is presumed to be constitutional until proved otherwise "beyond all reasonable doubt."[277] In operation this rule is subject to two limitations which seriously impair its efficacy. The first is that the doubts which are effective are the doubts of the majority only. If five Justices of learning and attachment to the Constitution are convinced that the statute is invalid and four others of equal learning and attachment to the Constitution are convinced that it is valid or are uncertain that it is invalid, the convictions of the five prevail over the convictions or doubts of the four, and vice versa. Second, the Court has made exceptions to this rule in certain categories of cases. At one time statutes interfering with freedom of contract were presumed to be unconstitutional until proved valid,[278] and more recently presumptions of invalidity have appeared to prevail against statutes alleged to interfere with freedom of expression and of religious worship, which have been said to occupy a preferred position in the Constitution.[279]

Exclusion of Extra-Constitutional Tests

A fifth maxim of constitutional interpretation runs to the effect that the Courts are concerned only with the constitutionality of legislation and not with its motives, policy or wisdom, or with its concurrence with natural justice, fundamental principles of government, or spirit of the Constitution.[280] In various forms this maxim has been repeated to such an extent that it has become trite and has increasingly come to be incorporated in constitutional cases as a reason for fortifying a finding of unconstitutionality. Through absorption of natural rights doctrines into the text of the Constitution, the Court was enabled to reject natural law and still to partake of its fruits, and the same is true of the _laissez faire_ principles incorporated in judicial decisions from about 1890 to 1937. Such protective coloration is transparent in such cases as Lochner _v._ New York[281] and United States _v._ Butler.[282]

Disallowance by Statutory Interpretation

A sixth principle of constitutional interpretation designed by the courts to discourage invalidation of statutes is that if at all possible the courts will construe the statute so as to bring it within the law of the Constitution.[283] At times this has meant that a statute was construed so strictly in order to avoid constitutional difficulties that its efficacy was impaired if not lost.[284] A seventh principle closely related to the preceding one is that in cases involving statutes, portions of which are valid and other portions invalid, the courts will separate the valid from the invalid and throw out only the latter unless such portions are inextricably connected.[285] Sometimes statutes expressly provide for the separability of provisions, but it remains for the courts in the last resort to determine whether the provisions are separable.[286]

_Stare Decisis_ in Constitutional Law

An eighth limitation on the power of the federal courts to invalidate legislation springs from the principle of _stare decisis_, a limitation which has been progressively weakened since the Court proceeded to correct "a century of error" in Pollock _v._ Farmers' Loan & Trust Co.[287] Because of the difficulty of amending the Constitution the Court has long taken the position that it will reverse its previous decisions on constitutional issues when convinced they are grounded on error more quickly than in other types of cases in which earlier precedents are not absolutely binding.[288] The "constitutional revolution" of 1937 produced numerous reversals of earlier precedents as other sections of this study disclose, and the process continues. In Smith _v._ Allwright,[289] which reversed Grovey _v._ Townsend,[290] Justice Reed cited fourteen cases decided between March 27, 1937, and June 14, 1943, in which one or more earlier decisions of constitutional questions were overturned. Although the general effect of the numerous reversals of precedent between 1937 and 1950 was to bring judicial interpretation more generally into accord with the formal text of the Constitution, and to dispose of a considerable amount of constitutional chaff, Justice Roberts was moved to say in the Allwright case that frequent reversals of earlier decisions tended to bring adjudications of the Supreme Court "into the same class as a restricted railroad ticket, good for this day and train only."[291] A ninth limitation which has nothing to do with statutory or constitutional construction as such and which is altogether precautionary is that the Court will declare no legislative act void unless a majority of its full membership so concurs.[292]

The cumulative effect of these limitations is difficult to measure. The limitation imposed by the case concept definitely has the effect of postponing judicial nullification, but beyond this the most that can be said is that constitutional issues affecting important issues can ordinarily be presented in a case and so will sooner or later reach the Court. The limitations of the presumptions of statutory validity, lack of concern with the wisdom of the legislation, alternative construction, separability of provisions and the like depend for their effectiveness upon the consciousness of the individual judge of the judicial proprieties and have been equally endorsed by those judges most frequently addressing themselves to the task of finding legislation invalid. The limitation imposed by the concept of political questions does not limit in any significant way the power of the federal courts to review legislation, but does remove from judicial scrutiny vast areas of executive action. In general, therefore, the extent to and manner in which the courts will exercise their power to review legislation is a matter of judicial discretion.

ALLEGATIONS OF FEDERAL QUESTION

The question of jurisdiction of cases involving federal questions is determined by the allegations made by the plaintiff and not upon the facts as they may emerge or by a decision of the merits.[293] Plaintiffs seeking to docket such cases in the federal courts must set forth a substantial claim under the Constitution, laws or treaties of the United States.[294] Nor does jurisdiction arise simply because an averment of a federal right is made, "if it plainly appears that such averment is not real and substantial, but is without color of merit."[295] The federal question averred may be insubstantial because obviously without merit, or because its unsoundness so clearly results from previous decisions of the Supreme Court as to foreclose the issue and leaves no room for the inference that the questions sought to be raised can be subjects of controversy.[296] In Gully _v._ First National Bank[297] the Court reviewed earlier precedents and endeavored to restate the rules for determining when a case arises. First there must be a right or immunity created by the Constitution, laws, or treaties of the United States which must be such that it will be supported if the Constitution, laws, or treaties are given one construction, or defeated if given another. Second, a genuine and present controversy as distinguished from a possible or conjectural one must exist with reference to the federal right. Third, the controversy must be disclosed upon the face of the complaint unaided by the answer.[298]

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