Constitutional law

“ 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 is constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. ”

“ It will not, I think, be denied that acts of congress passed in pursuance of the constitution, when in conflict with state laws, must prevail. It has never been doubted that the law under consideration is constitutional. ”

“ Now and then an extraordinary case may turn up, but constitutional law, like other mortal contrivances, has to take some chances, and in the great majority of instances, no doubt, justice will be done. ”

“ There is no mode in which the question of constitutional power to enact a law can be determined, without the influence of considerations of policy or expediency, so effectually, as by confining the final determination to the special operation of the law upon the facts of an individual case. ”

“ Although in general a substantive constitutional law matter refers broadly to a matter pertaining, inclusively, to the organization and structure of the nation, the constitution and the authority of the national organizations and institutions, or the status of the individuals in relation to state power, the constitutional custom pertains to such matters especially fundamental and pivotal to the state among general constitutional law matters, which are not adequately regulated by the statutes. ”

“ The government of the United States, as also that of each State, is a government of limited powers. In our day we speak of either government as one of limitations; in the eighteenth century the equivalent expression was “checks and balances.”352 Fundamentally, American constitutional law is the law of constitutional limitations. ”

“ This exercise of power by Congress is essentially political, and Congress alone is judge of “the choice of means and is empowered to use any means which27 are in fact conducive to the exercise of a power granted by the Constitution.”56 This conclusion is inevitable. A legislative body could exist on no other principle. Thus it follows that necessity is supremacy, in the case of congressional legislation. To any understanding of American constitutional law, comprehension of this principle is fundamental. ”

“ The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution. ”

“ While the limitations thus far cited are specific and expressed, they go less to the fundamentals of government and civil rights than do other limitations expressed in the Constitution, and notably in the Amendments.375
It is not unusual that a State constitution declares that to guard against transgressions of the high powers of government delegated by the people through them, everything in the article, commonly known as the Bill of Rights, is excepted out of the general powers of government, and shall forever remain inviolate. ”

“ Certainly all those who have framed written constitutions contemplate them as forming a fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the Legislature repugnant to the constitution is void.... 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. ”

“ If an issue arises under an act of Congress, there must ever be the fundamental question of authority for the act. This question of authority once settled, the act, by the terms of the Constitution itself, is a part of the supreme law.34 Rarely is an act of Congress declared unconstitutional. ”

“ The Federalist remains the classic contemporaneous interpretation of the Constitution.
The issue involved is, fundamentally, one of functions, and is viewed at different times with different understandings. As a practical question, it is one of jurisdiction as legally understood, but as a question of service as politically understood. Here enter many and diverse factors as morals, industry, communal interest, public safety, social needs, and the like. Questions growing out of these are not and cannot be decided finally by any generation. Each generation interprets these factors. ”

“ The Convention that frames a constitution is an agent of sovereignty; the Congress or State Legislature that enacts a law is an agent of that sovereignty, and that sovereignty prescribes through its agents the method of ratifying and administering that law. Through other agents, e. g., the judiciary, that sovereignty interprets constitutions and laws.3 Legislative, executive,4 judicial, and administrative officials constitute the governmental group, the public servants to whom, for a term, the sovereign delegates some of its powers. ”

“ The States comprising the Union possess equal powers and are subject to the same limitations. This means, in brief, that they have, respectively, the same jurisdiction. The sovereignty of one State is equal to the sovereignty of another. Because of this equality, they are all subject to the same rules of State comity. The aspects of this mutual equality are numerous and are the subject of provisions of the Constitution.304
In so far as a State possesses jurisdiction it may exercise authority.305 This rule is fundamental in American constitutional law. ”

“ The Civil Rights Bill and the Freedmen's Bureau Bill and the proposed constitutional amendments, with the amendment already adopted and recognized as the law of the land, do not reach the difficulty, and cannot, unless the whole structure of the government is changed from a government by States to something like a despotic central government, with power to control even the municipal regulations of States, and to make them conform to its own despotic will. ”

“ In all other respects the States are necessarily foreign to and independent of each other,—their constitutions and forms of government being, although republican, altogether different, as are their laws and institutions.313 In government, jurisdiction is co-extensive with sovereignty. Faith, credit, public acts, records, or judicial proceedings that are valid in a State are, when149 proved, valid in every other State, and Congress possesses the power to prescribe by general laws the manner and the effect of proof. ”

“ The reason the framers of the constitution set forth a far more rigid procedure for the revision of the constitution than the general statute is, to deter arbitrary changes of the substance of the constitutional text, which is an express representation of the will of the sovereign. On the contrary, changes in the constitutional law matters that are not contained in the constitution or the unwritten constitution do not constitute constitutional revision, and may be handled by the general procedure of representative democracy established by our constitution, that is, the enactment of statute. ”

“ All legislative, executive, and judicial officers both of the United States and of the several States are bound by oath or affirmation to support the Constitution, and in our actual government, every administrative official, State or national, is bound in like manner.1 Aliens becoming American citizens by naturalization,—by which they disavow allegiance to any other sovereignty,—solemnly bind themselves, by oath or affirmation, to support the Constitution. Every2 citizen is impliedly under oath to support the Constitution. ”

“ No higher duty, no more solemn responsibility, rests upon this Court, than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution-of whatever race, creed or persuasion. ”

“ The principle here is that the sovereign may assent to being sued by its own citizens,—an assent declared by the State constitution, but available by the citizen only according to acts of the Legislature. ”

“ In order for the establishment of a customary constitutional law, first, the matter concerning the custom which has been formed should be a constitutionally significant and fundamental matter to the extent that it may not be regulated merely by statute, yet should instead necessarily be regulated by the constitution to have superiority over statute in its legal force. ”

“ So too does that history largely explain the legislation enacted by Congress by authority of these amendments.58
23. The essential fact as to the powers of Congress30 is of their limitation. Turning to the Constitution itself, one will find that it devotes nearly three times as much matter to legislative as to executive power; and nearly eight times as much matter to legislative as to judicial power. Doubtless this spatial distribution of powers (or limitation of powers) tells the whole story. Government is largely an affair of legislation. ”

“ The characteristic of the written constitution is, inter alia, its retention of the strong power binding all state powers as the supreme legal norm, which is rendered possible by convergence of express intent of the people's sovereignty through specific constitutional establishment procedure. As custom alone may not retain such supreme power that characterizes the constitution, the rationale of the majority opinion that the written constitution and the customary constitutional law have the identical force lacks constitutional ground. ”

“ For me the only correct meaning of that phrase is that our Government must proceed according to the 'law of the land'-that is, according to written constitutional and statutory provisions as interpreted by court decisions. ”

“ As far as they are concerned, the State, as a party to the constitutional compact, has the right to decide, in the last resort — and, acting in the same character in which it ratified the constitution, to determine to what limits its powers extend, and how far they are bound to respect and obey it, and the acts made under its authority. ”

“ To me, therefore, it is a marvel that in this country, under a Constitution ordained by men who were conversant with the principles of Magna Charta, and claimed them as their birthright, a Constitution which declares in its preamble that it is established 'to secure the blessings of liberty to ourselves and posterity,'-it could ever be contended that an order of the Executive, issued at his will for the arrest and imprisonment of a citizen, where the courts are open and in the full exercise of their jurisdiction, is due process of law, or could ever be made such by an act of Congress. ”

“ In laws, we are obliged to act without ourselves determining, or promising any thing at all." [41] It is a rule prescribed; that is, it is laid down, promulgated, and established. It is prescribed by the supreme power in a state, that is, among us, by the people, or a majority of them in their original sovereign capacity. Like the ordinary municipal laws, it may be founded upon our consent, or that of our representatives; but it derives its ultimate obligatory force, as a law, and not as a compact. ”

“ The national will is the supreme law of the Republic, and on all subjects within the limits of his constitutional powers should be faithfully obeyed by the public servant. ”

“ But where a constitution asserts a certain right, or lays down a certain principle of law or procedure, it speaks for the entire people as their supreme law, and is full authority for all that is done in pursuance of its provision. ”