Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Sunday, April 27, 2014

"Providence never can intend to promote the prosperity of any country by bad means"

Calder v. Bull was the first case in which the Supreme Court of the United States granted a writ of error to review a state-court decision on the constitutionality of state legislation. See Daniel A. Degnan, S.J., William Paterson, in Seriatim: The Supreme Court Before John Marshall (Scott Douglas Gerber, ed.); see also Judiciary Act of 1789, Section 25. But the decision is not typically studied now for what it reveals about the Supreme Court's appellate jurisdiction in relation to state courts. More typically, first-year law students encounter excerpts from the opinions of Justice Chase and Justice Iredell regarding the relationships among natural principles of justice, state and federal legislative power, and federal judicial power. 

The opinion of Justice Iredell is usually noted for his denial of Supreme Court authority to pronounce void a federal or state legislative act that is contrary to principles of natural justice but not contrary to any provision of the Constitution:

If, then, a government, composed of Legislative, Executive and Judicial departments, were established, by a Constitution, which imposed no limits on the legislative power, the consequence would inevitably be, that whatever the legislative power chose to enact, would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true, that some speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I cannot think that, under such a government, any Court of Justice would possess a power to declare it so. Sir William Blackstone, having put the strong case of an act of Parliament, which authorise a man to try his own cause, explicitly adds, that even in that case, "there is no court that has power to defeat the intent of the Legislature, when couched in such evident and express words, as leave no doubt whether it was the intent of the Legislature, or no." 1 Bl. Com. 91.

In order, therefore, to guard against so great an evil, it has been the policy of all the American states, which have, individually, framed their state constitutions since the revolution, and of the people of the United States, when they framed the Federal Constitution, to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case. If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice. There are then but two lights, in which the subject can be viewed: 1st. If the Legislature pursue the authority delegated to them, their acts are valid. 2d. If they transgress the boundaries of that authority, their acts are invalid. In the former case, they exercise the discretion vested in them by the people, to whom alone they are responsible for the faithful discharge of their trust: but in the latter case, they violate a fundamental law, which must be our guide, whenever we are called upon as judges to determine the validity of a legislative act.

Calder v. Bull, 3 U.S. 386, 398-99 (1798) (Iredell, J.)

Whether the federal judicial power includes the authority to declare void legislative acts that violate principles of natural justice is a question of obvious interest. But rather than enter into that debate here, I thought I would highlight an aside at the end of Iredell's opinion that refers to Providence in a discussion of the use of a bad means to accomplish a good end:

Upon the whole, though there cannot be a case, in which an ex post facto law in criminal matters is requisite, or justifiable (for Providence never can intend to promote the prosperity of any country by bad means) yet, in the present instance the objection does not arise: Because, 1st. if the act of the Legislature of Connecticut was a judicial act, it is not within the words of the Constitution; and 2d. even if it was a legislative act, it is not within the meaning of the prohibition.

Id. at 400.



Walsh, Kevin | Permalink