Page:Origin and Scope of the American Doctrine of Constitutional Law.djvu/14

 think I rendered a more important service to my country than in dis- charging the ordinary duties of my office for many years.... But while I assert this power and insist on its great value to the country, I am not insensible of the high deference due to legislative authority. It is supreme in all cases where it is not restrained by the constitution; and as it is the duty of legislators as well as judges to consult this and conform their acts to it, so it should be presumed that all their acts do conform to it unless the contrary is manifest. This confidence is necessary to insure due obedience to its autlhority. If this be frequently questioned, it must tend to diminish the reverence for the laws which is essential to the public safety and happiness. I am not, therefore, disposed to examine with scrupulous exactness the validity of a law. It would be unwise on another account. The interference of the judiciary with legislative Acts, if frequent or on dubious grouinds, might occasion so great a jealousy of this power and so general a prejudice against it as to lead to nmeasures ending in the total overthrow of the independence of the judges, and so of the best preservative of the constitution. The validity of tlle law ought not then to be questioned unless it is so obviously repugnant to the constitution that when pointed out by the judges, all men of sense and reflection in the community may perceive the repugnancy. By such a cautious exercise of this judicial check, no jealousy of it will be excited, the public confidence in it will be promoted, and its salutary effects be justly and fully appreciated." This well-known rule is laid down by Cooley (Const. Lim., 6th ed., 216), and supported by emphatic judicial declarations and by a long list of citations from all parts of the country. In Ogden v. Saunders, 12 Wheat. 213 (1827), Mr. Justice Washington, after remarking that the question was a doubtful one, said: " If I could rest my opinion in favor of the constitutioiiality of the law. . . on no other ground than this doubt, so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due to the. . . legislative body by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt. This has always been the language of this court when that subject has called for its decision; and I know it expresses the honest sentiments of each and every member of this bench.' In the Sinking Fund Cases, 99 U. S. 700 (1878), Chief Justice Waite, for the court, said: "This declaration [that an Act of, Congress is unconstitutional] should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule." In Wellington et al., Petitioners, 16 Pick. 87 (1834), Chief justice Shaw, for the court, remarked that it was proper " to repeat what has been so often suggested by courts of justice, that when calle upon to pronounce the invalidity of an Act of legislation [they will] never doclare a statute void unless the nullity and invalidity of the Act are placed, in their judgment, beyond reasonable doubt." In Com. v. Five Cents Sav. Bk., 5 Allen, 428 (1862), Chief justice Bigelow, for the court, said: " It may be well to repeat the rule of exposition which has been often enunciated by this court, that where' a statute has been passed