Download Vanhorne`s Lessee v. Dorrance "In England, from whence most of

Vanhorne’s Lessee v. Dorrance
“In England, from whence most of our legal principles and legislative notions are derived, the authority of Parliament . .
. has no bounds.” There are no limits on Parliament’s power to make laws. Certainly, it cannot be questioned by the
courts, which must simply follow the laws. “In England there is no written constitution, no fundamental law, nothing
visible, nothing real, nothing certain, by which a statute can be tested. In America the case is widely different.” Every
state, and the nation itself, has a written constitution.
“What is a constitution? It is the form of government, delineated by the mighty hand of the people, in which certain . . .
fundamental laws are established. The constitution is certain and fixed; it contains the permanent will of the people,
and is the supreme law of the land.” It is above the power of the legislature.
“What are legislatures? Creatures of the constitution, they owe their existence to the constitution; they derive their
powers from the constitution.” First the people establish their will through the Constitution. Only afterward, and in a
lesser way, do the people work their will in laws made by legislatures. The constitution limits the power of the
legislature.
“In short . . . the constitution is the sun of the political system, around which all legislative, executive, and judicial
bodies must revolve.”
What happens if a legislature passes a law that is contrary to or violates a constitutional principle? The law must give
way and be rejected. “In such case, it will be the duty of the court to adhere to the constitution, and to declare the [law]
null and void.”
.
Marbury v. Madison
Can an act that is in violation of (“repugnant to”) the constitution become the law of the land? To answer this, we must
only look at certain well established principles.
First, “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.” This is “the basis on which the whole American fabric has been erected.”
In other words, Americans believe that the people may establish a constitution to lay down the principles of government.
“This original and supreme will organizes the government.”
The constitution lays down limits that the branches of government may not break. “The powers of the legislature are
defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.”
Certainly those people who create written constitutions assume that they form “the fundamental and paramount law of
the nation.” Therefore, “an act of the legislature, repugnant to the constitution, is void. This theory is essentially
attached to a written constitution, and is one of the fundamental principles of our society.”
But even if a law is invalid, must the courts follow it? Do the courts have the responsibility to follow the laws, no
matter what? Certainly, the courts are responsible for saying what the law is. “If two laws conflict with each other, the
courts must decide” how each operates. The same is true “if a law be in opposition to the constitution.” Moreover,
since the constitution comes first, if a law conflicts with the constitution, the court must follow the constitution and
strike down the law. Any other approach would be silly. If the courts do not follow the constitution first, this would
undermine “the very foundation of all written constitutions.”
In sum, “a law repugnant to the constitution is void; and all courts, as well as other [branches of government] are bound
by that instrument [i.e. the constitution].”
Eakin v. Raub [Justice Gibson dissenting]
“The powers of the judiciary are divisible into those that are POLITICAL and those that are purely CIVIL. Every
power by which one [part] of the government [can] control another . . . it is a political power.” The judiciary’s civil
powers are is usual powers of trying cases, etc. “Where the government exists by virtue of a written constitution, the
judiciary does not necessarily derive from that circumstance, any other than its ordinary and appropriate powers.” The
courts do not get any extra power over other branches of the government just because there is a written constitution.
What are the powers of the judiciary ordinarily? Those powers that arise from executing law, administering justice, etc.
The ordinary powers of the judiciary “do not extend to the annulling of an act of the legislature.”
Some people say that the constitution is superior to the law, and “consequently, if it were to come into collision with an
act of the legislature, the latter would have to give way.” I agree with this. But it is not equally clear that the courts
are responsible for deciding whether a law is in collision with the constitution.
Declaring an act “null and void” seems to be taking power away from the legislature. It is not the business of the courts
to interfere in law-making in this way. In fact, the legislature itself is the forum in which the constitutionality of laws
should be judged.
“It may be said, the power of the legislature . . . is limited by . . . rules: it is so. But it is, nevertheless, the power of
the people, and sovereign as far as it extends.” Thus the power of the legislature is the greatest part of government. If
anyone had intended for the judiciary to step in between the people and the laws, it would have been written out
explicitly in the constitution.
Could it not be said that judges themselves violate the constitution if they treat an unconstitutional law as valid? “Not if
the law has been passed according to the forms established in the constitution.”
Ultimately, where should the remedy lie if the legislature violates the constitution? Not in the courts. Not in the
constitution—it is just made of parchment and ink with no special powers. The remedy “rests with the people, in whom
full and absolute sovereign power resides, to correct abuses in legislation, by instructing their representatives to repeal
the obnoxious act.”
Indeed, the judiciary can make mistakes too, and it is difficult to correct an error. “Whereas an error by the legislature
admits of a remedy” simply by voting in the next election.
However, it must be said that if a state assembly passes a law in conflict with the U.S. Constitution, the courts have
been expressly granted power in the constitution to rule on whether those laws are constitutional and to overturn them if
they are not.