Congress enacts legislation. The president approves it. The people apparently want it. The Supreme court determines that it is unconstitutional and void. Thus the will of the people is defeated–or is it.
A great deal of important emergency legislation has been voided by the Supreme court, not infrequently by a vote of 5 to 4. Much of this has involved social and economic reform and experimentation. The majorities in congress favoring the controversial measures have been imposing. the hue and cry has gone forth that 5 of 9 old men are subverting the will of the people, hindering economic recovery and social betterment, and exercising more influence than the whole legislative and executive branches of the government. But what are the fundamental principles involved?
The government of the United States is one in which the sovereign power rests with the people. It does not rest with the government or with any department of it. The people are the rulers.
The federal Constitution is the document by which the sovereign people delegate to the national government the right and power to perform certain functions for and on behalf of the people. The national government is thus one of limited powers. It can act only in those matters on which prior authorization has been received from the people by means of a written constitution.
Not only did the people exercise extreme care in choosing the limited powers they delegated to the government, but they went further and expressly reserved to themselves all other powers, and plainly said to their government, “Thou shalt not exercise these.” This then is the nature of government under a written constitution.
In England the Parliament holds the sovereignty and is supreme. There is no written constitution by which the people limit parliamentary powers. It has been said that the Parliament can do anything but turn a man into a woman and a woman into a men. Our Congress is not so; it is limited in the powers it can exercise, and the limitation is imposed by the people by means of the Constitution. Thus anything that parliament does is right, constitutionally speaking, but anything that the Congress does is right constitutionally speaking, only if it falls within its delegation of authority to act.
It is the function of all courts to adjudicate the rights of individuals when those rights are brought before them in proper cases. If, in the course of determining what those rights are, it is found that there are two different legislative enactments involved, and these are in conflict with each other, it then becomes the duty of the court to determine which law shall apply and which shall be discarded.
For instance, if one law was enacted on one day and another on a subsequent day, and these two laws contradict each other, then the courts have generally determined that the law last passed will be the one to govern. This is simply a matter of choosing what law will govern in a particular case, and the fact that one of them is thus incidentally determined to be void is immaterial. It was the legislature that declared it void by passing a subsequent law in conflict with it. The courts are by such acts upholding the laws and honoring them. They are preserving the supreme law in preference to a lesser law.
The Constitution is the supreme law of the land. It was enacted by the people themselves and can only be changed or amended by them. It is the permanent expressed will of the people of the United States. Any acts of a legislature or of a Congress express merely the opinion of a majority of the representatives of the people at a given time. These representatives are acting with limited and delegated powers. The people acted with all sovereign powers when they ordained and established the Constitution.
Congress may enact a law which is in conflict with the permanent will of the people, with the supreme law of the land as expressed in the Constitution. If this occurs and a proper case comes before the court, a choice must be made between the higher law and the lesser. The effect of this choice is to declare the act of Congress void, or, as is commonly said, unconstitutional.
This is the natural function of courts. If this country is to have a written Constitution, then the courts cannot be denied this power. Otherwise there would be nothing to uphold the supreme law of the land as against any lesser law, and the Congress would become supreme and have all sovereignty.
Our form of government can only be preserved if this power of the courts is upheld. courts are truly the guardians of the Constitution.
which appeared on the editorial page (page 4) of
The Deseret News, 19 March 1945 through 10 April 1945.