Joseph R. Long, in his article “Unconstitutional Acts of Congress (Virginia Law Review, Vol. 1, No. 6, Mar., 1914, pp. 417-444), wrote:
THERE has been a great deal written of late on the subject
of the power of the courts to declare statutes void because
unconstitutional. This power, which has been exercised almost
from the beginning of our national history, has gone practically
unchallenged until within the last decade, when a new school
of publicists have arisen who have discovered, as they claim, that
the power was usurped and was never contemplated by the framers
of our constitutions. The incorrectness of this view has
frequently been demonstrated, but this new school, indifferent
alike to the facts of history and the principles of reasoning, continue
to rail at the courts for their alleged usurpation and unauthorized
interference with the work of the legislature. This
disturbance seems now to be somewhat quieting down, and the
courts continue as before to pronounce legislation void which
conflicts with the constitution. Whether rightfully assumed
or not, the existence of the power is unquestionable, and the
more important questions is, how has the power been exercised ?
Has much valuable legislation been thus nullified, has the legislature
been unduly kept in check? Strangely enough, this question
has received very little attention. Men have denounced
the Supreme Court for its course in declaring acts of Congress
unconstitutional, who probably could name only the Income
Tax Case, the first Legal Tender Cases, and perhaps Marbury
v. Madison, but who vaguely supposed that statutes had been
held void in scores of other cases. It is proposed in this paper
to set out briefly in chronological order all the cases in which
acts of Congress have been held void by the Supreme Court. It is possible some case has been overlooked, but so far as the
writer knows, the list is complete. Of course, no one can estimate
the number of unconstitutional statutes which have been
prevented by the fact that Congress knew that the Supreme
Court would not hesitate to declare them void, but the actual
situation is as herein set forth. No doubt many will be surprised
that the list is so short.
The first case in which the Supreme Court definitely considered
and passed upon the constitutionality of an act of Congress
was the famous carriage tax case of Hylton v. United States.1
In this case the sole question was whether the act of June 5,
1794 2 laying a duty on carriages was constitutional. It was
claimed for the tax payer that the tax was a direct tax and
hence void because not apportioned as required by the Constitution.
The court held that the tax was indirect and therefore
properly laid uniformly. As the court was of opinion that the
act was constitutional, they did not, as a matter of course, exercise
the power to declare it void. The question as to the
court’s power in such case does not appear to have been listinctly
raised, but Justice Chase, in closing his opinion, said,
“As I do not think the tax on carriages is a (lirect tax, it is
unnecessary at this time for me to determine whether this court
constitutionally possesses the power to declare an act of Congress
void, on the ground of its being made contrary to, and in
violation of, the constitution; but if the court have such power,
I am free to (leclare, that I will never exercise it but in a very
clear case.” Plainly, however, in assuming to determine the
question of the constitutionality of the statute, the court, in effect,
assumed the power to declare it void, for unless the court
could declare it void as well as declare it valid, it was superfluous
to consider the question at all. The justices taking part in the
decision were Chase, Paterson, Iredell, and Wilson.
Justice Chase, whose guarded statement has just been quoted,
appears to be the only Supreme Court justice who has ever officially
expressed any doubt as to the power of the court to declare
acts of Congress unconstitutional. He used much the same language in Ware z. Hylton 3 as to the power of the court
to declare treaties void. And in Calder v. Bull 4 he said, “Without
giving an opinion at this time whether this court has jurisdiction
to decide that any law made by Congress contrary to
the Constitution of the United States, is void, I am fully satisfied
that this court has no jurisdiction to determine that any
law of any state legislature contrary to the constitution of such
state, is void.” Again, in Cooper z’. Telfair,5 he said, “Although
it is alleged that all acts of the legislature in direct opposition
to the prohibitions of the Constitution would be void, yet it
still remains a question where the power resides to declare it
void. It is, indeed, a general opinion, it is expressly admitted
by all this bar, and some of the judges have, individually, in the
circuits, (lecided that the Supreme Court can (leclare an act of
Congress to be unconstitutional, and therefore invalid, but there
is no adjudication of the Supreme Court itself upon that point.”
The other justices seem to have been perfectly satisfied that
the court had power to declare statutes void, though they recognized
that the power was a delicate one and to be exercised
only in a clear and urgent case. See the observations of Justice
Iredell in Calder v. Bull and of Justices Washington, Paterson,
and Cushing in Cooper v. Telfair. Justice Paterson, as circuit
justice, in 1795 held a statute of Pennsylvania void, and in this
case emphatically announced the duty of the court to declare
an unconstitutional statute null and void. This is probably the
earliest reported federal case.6 All but one of the justices in
1791 (Jay, Cushing, Wilson, Blair, and Iredell), had then, as
circuit justices, expressed the view that an act of Congress providing
for the settlement of claims of widows and orphans, and
to regulate claims to invalid pensions, was unconstitutional in
that it undertook to impose upon the circuit courts duties in the
matter which were not of a judicial character, and they accordingly
declined to act officially as provided by the act. These opinions, however, were not delivered in the settlement of actual litigation, and do not therefore amount to judicial decisions.7
The unreported case of United States v. Yale Todd 8 set out
in a note to United States v. Ferreira 9 is sometimes considered
as a decision of the Supreme Court that an act of Congress was
unconstitutional, but it seems that the court did not in fact so
decide in that case. The same is true of the case of United
States vz. Ferreira.10 The first actual decision that an act of
Congress was void was by Chief Justice Marshall in the great
case to which we now come.
1. MARBURY V. MADISON.1
This famous case was the first case in which an act of Congress
was declared by the Supreme Court to be unconstitutional.
Of late it has been violently attacked by unthinking and uninformed
persons as an example of judicial usurpation of authority.
Rather singularly, however, the actual decision was the
refusal by the court to exercise power which Congress undertook
to confer upon it. The facts are well known. The suit was an
original suit in the Supreme Court for a mandamus to the Secretary
of State, James Madison, commanding him to issue commissions
to the applicants as justices of the peace in the District
of Columbia. The applicants had been appointed by the outgoing
President, John Adams, and their commissions had been
made out but not delivered when Mr. Jefferson became President.
The suit was brought under the Judiciary Act 12 of 1789,
conferring original jurisdiction upon the Supreme Court to issue
writs of mandamus to public officers. The jurisdictional question
was whether the original jurisdiction of the Supreme Court
was confined to the cases mentioned in the Constitution, or might
be enlarged by Congress. The court held that the jurisdiction
could not be extended to cases not named in the Constitution,
and that the act under which the application was made was unauthorized
by the Constitution, and that the jurisdiction so conferred
could not be exercised by the court. The rule to show cause why the writ should not issue was therefore discharged.
This should have been the sole point determined in the case.
Having decided that the court had no jurisdiction, which question
should have been taken up first, the court should not have
considered the substantive question involved, namely, the right
of the applicants to the relief applied for. Chief Justice Marshall,
however, who was politically hostile to the new President,
Mr. Jefferson, went out of his way to decide that the applicants
were entitled to their commissions. This part of the opinion,
which is the first part, was purely dictuzm, but the latter part ot
the opinion in which the statute was declared unconstitutional
was absolutely necessary and strictly in point. It has often been
declared even by scholarly lawyers, that Marshall’s declaration
that the statute was unconstitutional was cdictum, but it is perfectly
plain that it was the other part of the opinion that was
of this character. The question of jurisdiction depended wholly
upon the validity of the statute, and this question had to be disposed
of. It is a strange confusion that has led to the quite
general opinion that the great point in the case, the exercise of
the power to declare statutes unconstitutional, was by way
of dictum. The unanswerable argument of Marshall as to the
duty of the court to disregard unconstitutional legislation is
familiar, and has ever since been accepted by the courts as finally
disposing of the question. There was no dissent in this case.
2. DRED SCOTT V. SANFORD.13
This famous case may, perhaps, be properly included in this
list although no question of the constitutionality of any statute
was directly involved. By way of dictum, as it seems, Chief
Justice Taney declared the Missouri Compromise Act 14 of March 6, 1820 unconstitutional. Justices Wayne, Daniel, Catron,
Grier, and Campbell seem to have concurred in this opinion.
Justices McLean and Curtis dissented. Justice Nelson did not
pass upon it. The unfortunate effect of the elaborate dicta of
the Chief Justice in this case forms a part of the history of the
times.
3. GORDON V. JONES.15
In this case an appeal from the Court of Claims was dismissed
by the Supreme Court for want of jurisdiction. The appeal
was taken under the act 16 of March 3, 1863. Section 14 of the
statute in effect authorized the secretary of the treasury to revise
the judgments of the court before paying claims adjudged. This
amounted to a denial of judicial power, and hence the allowance
of an appeal to the Supreme Court was unauthorized by the
Constitution. The report of this case is a mere memorandum,
but the opinion of Chief Justice Taney is published in 117 U.
S. 697, and a more complete account of the case is given in
United States v. Jones.17 At the next session of Congress after
the decision of Gordon’s Case the objectionable section 14 was
repealed and a proper statute authorizing appeals was passed.
The vice of the former statute, as above stated, was that it attempted
to confer upon the Court of Claims, with the right of
appeal to the Supreme Court, power which was not strictly judicial,
in that, by section 14, an officer of the executive department
was given power to review the judgments of the court.
Justice Miller dissented from the judgment. In some other
cases the Supreme Court has declined to exercise power because
not of a judicial nature, but the other cases did not involve declaring
a statute unconstitutional.
EX PARTE GARLAND.
By act 20 of January 24, 1865 Congress provided that no person
should be allowed to practice before the Supreme Court and
inferior federal courts without taking the Test Oath that he had
never borne arms against the United States, nor voluntarily
given aid, countenance, counsel, nor encouragement to persons
engaged in armed hostility thereto, nor sought nor exercised
the function of any office under any authority or pretended authority in hostility to the United States. The object of this act
was, of course, to disqualify persons who had been connected
with the Confederate States to practice in the federal courts, as
they had already been disqualified to hold federal office. Augustus
H. Garland, of Arkansas, had in 1860 been admitted to the
bar of the Supreme Court. During the Civil War he served in
the Confederate Congress but his name was never stricken from
the roll of attorneys of the Supreme Court. In July, 1865, the
war being over, he received a full pardon from the President, and
later petitioned the court ‘for permission to practice before it
without taking the oath, which, of course, he was unable to take.
He claimed that the act requiring the oath was unconstitutional
so far as it affected his status in the court, and that even if the
act was constitutional, he was released from compliance with its
provisions by the President’s pardon. The court admitted him,
holding the act unconstitutional in that it operated as a legislative
decree excluding from practice in the courts all persons who
had offended in the particulars enumerated, and was therefore a
bill of pains and penalties; that it was also an ex post facto law,
and was thus within the constitutional prohibitions, and further
that it was an unwarranted interference with the pardoning
power of the President, as applied to Mr. Garland’s Case. Four
of the nine justices dissented, namely, Chief Justice Chase, and
Justices Miller, Swayne, and Davis. Mr. Garland was soon afterwards
elected to the Senate, but was not permitted to take his
seat. In 1874 he was elected governor of Arkansas, and in 1876
he was again sent to the Senate where he served from 1877 until
1883, when he was appointed by President Cleveland to a position
in his cabinet as attorney general of the United States.
5. THE ALICIA.20a
This case involved the condemnation in 1863 of the vessel
Alicia and her cargo for a violation of the blockade. A decree of condemnation was entered in the District Court for the Southern
District of Florida, and from this decree an appeal was taken
to the circuit court. In 1867 an order was made by the circuit
court, on the application of all the parties in interest, for the transfer of the case to the Supreme Court, there being at the
time no order, decree, or judgment of the circuit court disposing of
the case. The transfer was made under section 13 of the act 20b of
June 30, 1864, providing for the transfer of prize causes depending
in the circuit court to the Supreme Court. The Supreme
Court declined to take jurisdiction of the appeal and held that
the cause was still depending in the circuit court, notwithstanding
the order of transfer. The ground of this decision was that
the court, under the Constitution, could exercise in prize causes
appellate jurisdiction only, and this required an order, judgment,
or decree to be appealed from, and there was none in the circuit
court and no subsisting decree of the district court. It was held
that the provision of the statute for such transfer was an attempt
to give to the Supreme Court jurisdiction withheld by the Constitution.
The opinion was written by Chief Justice Chase.
There was no dissent.
6. HEPBURN V. GRISWOLD.21
In this case the clause in the Legal Tender Acts of 1862 and
1863 relating to the issue of United States notes, which made
such notes a legal tender for all debts public and private, was held
unconstitutional so far as it applied to debts contracted prior to
its passage. The opinion of the court was written by Chief Justice Chase who had been secretary of the treasury when the acts
were passed. At this time the courts consisted of eight justices,
three of whom dissented deeming the acts constitutional. Justice
Grier, who voted with the majority, soon afterwards resigned
on account of failing health, which left a vacancy on the
bench. Congress also increased the number of justices to nine,
which provided for the appointment of a second new judge.
Justices Strong and Bradley were appointed by President Grant
in 1870, and in 1871 the court as now constituted overruled the
case of Hepburn v. Griswold in the Legal Tender Cases,22 and
held the statutes constitutional. The opinion of the court was
written by Justice Strong with whom agreed the other new appointee,
Justice Bradley, and Justices Miller, Swayne, and Davis who had dissented in the former case. The other justices, Nelson,
Clifford, and Field, and Chief Justice Chase, who with Justice
Grier, had before been in the majority, now dissented, and
the acts which had been declared unconstitutional by a vote of
five to three were now upheld by a vote of five to four, no justice,
however, changing his opinion. This is the only instance in
which the court had directly overruled itself in the matter of the
constitutionality of an act of Congress, but it suggests that the
court can correct its own mistakes, if given a chance to do so.
7. UNITED STATES vr. DEWITT.23
This was a prosecution in the United States Circuit Court for
the Eastern District of Michigan for a violation of section 29 of
the Internal Revenue Act 24 of March 2, 1867, making it a misdemeanor
to mix for sale naptha and illuminating oils, or to sell or
keep or offer for sale such mixture, or to sell or offer for sale oil
made from petroleum for illuminating purposes, inflammable at
less temperature or fire test than 110 degrees Fahrenheit. Dewitt
had offered for sale in Detroit oil of the description specified.
There was a demurrer to the indictment and the case was taken
to the Supreme Court on a certificate of division of opinion of the
judges of the circuit court on the question of the constitutionality
of the act. The Supreme Court, without dissent, held the act
unconstitutional as being a mere police regulation of the internal
trade of the states, and beyond the power of Congress to enact
except as to territory exclusively within the legislative jurisdiction
of Congress, as, for example, in the District of Columbia.
The opinion was delivered by Chief Justice Chase.
8. JUSTICES v. MURRAY.25
This case arose under the “Act relating to Habeas Corpus and
regulating Judicial Proceedings in Certain Cases” passed March
3, 1863.26 This statute provided for the removal to the United
States circuit court of suits in state courts brought against any
federal officers for arrest or imprisonment made under the authority of the President, this legislation being an incident of the Civil War. The statute provided that upon such removal the
circuit court should proceed to try and determine “the facts and
the law” in the case in the same manner as if the suit had been
originally commenced in such court, the judgment of the state
court notwithstanding. In this case suit was brought in a court
of New York state against certain federal officers for arrest and
imprisonment by order of the President. The case was tried in
the state court by a jury and resulted in a verdict for the plaintiff.
Thereupon it was removed to the United States circuit
court under the above statute. The Supreme Court held, without
dissent, that the statute authorizing such removal was unconstitutional
because it violated the Seventh Amendment providing
that “No fact tried by a jury shall be otherwise
reexamined in any court of the United States than according to
the common law.” The opinion was delivered by Justice Nelson.
9. COLLECTOR v. DAY.27
This was a suit brought by Day to recover back taxes paid
under protest to the United States collector of internal revenue,
the taxes being assessed under the income tax statutes passed
(luring and immediately following the Civil War. The plaintiff
was a judge of the state of Massachusetts and claimed that the
United States could not lawfully tax his income as a judicial officer
of the state. The Supreme Court sustained him in this contention
and held that Congress could not, under the Constitution,
impose a tax upon the salary of a state judge. Justice Nelson
delivered the opinion of the court. Justice Bradley dissented in
a separate opinion. It will be observed that in this case the court
did not hold the income tax laws void, but only that they could
not constitutionally be applied to the income of a state judicial officer. Later, in Springer v. United States,28 the income tax
laws were sustained as applied to the income of a private individual.
In 1895, however, a similar statute was held void in the
famous Income Tax Case.
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