Some obscurity has been thrown over the question,
by confounding it with the respect due from one legislature to
laws passed by preceding legislatures. But the two cases are essentially
different. A Constitution, being derived from a superior authority,
is to be expounded and obeyed, not controlled or varied by the
subordinate authority of a legislature. A law, on the other hand,
resting on no higher authority than that possessed by every successive
legislature, its expediency, as well as its meaning, is within
the scope of the latter.
The case in question has its true analogy in
the obligation arising from judicial expositions of the law on
succeeding judges, the Constitution being a law to the legislator,
as the law is a rule of decision to the judge.
And why are judicial precedents, when formed
on due discussion and consideration, and deliberately sanctioned
by reviews and repetitions, regarded as of binding influence,
or rather of authoritative force, in settling the meaning of a
law? It must be answered, 1. Because it is a reasonable and established
axiom, that the good of society requires that the rules of conduct
of its members should be certain and known; which would not be
the case if any judges, disregarding the decisions of his predecessors
should vary the rule of law according to his individual interpretation
of it. Misera est servilus ubi jus est aut vagrum aut incognitum.
2. Because an exposition of the law publicly made and repeatedly
confirmed by the constituted authority, carries with it, by fair
inference, the sanction of those who, having made the law through
their legislative organ, appear, under such circumstances, to
have determined its meaning through their judiciary organ.
Can it be of less consequence that the meaning
of a Constitution should be fixed and known, than that the meaning
of a law should be so? Can, indeed, a law be fixed in its meaning
and operation, unless the Constitution be so? On the contrary,
if a particular legislature, differing, in the construction of
the Constitution, from a series at preceding constructions, proceed
to act on that difference; they not only introduce uncertainty
and instability in the Constitution, but in the laws themselves;
inasmuch as all laws preceding the new construction, and inconsistent
with it, are not only annulled for the future, but virtually pronounced
nullities from the beginning.
But it is said that the legislator, having sworn
to support the Constitution, must support it in his own construction
of it, however different from that put on it by his predecessors,
or whatever be the consequences of the construction. And is not
the judge under the same oath to support the law? Yet has it ever
been supposed that he was required, or at liberty, to disregard
all precedents, however solemnly repeated and regularly observed,
and, by giving effect to his own abstract and individual opinions,
to disturb the established course of practice in the business
of the community? Has the wisest and most conscientious judge
ever scrupled to acquiesce in decisions in which he has been overruled
by the matured opinions of the majority of his colleagues, and
subsequently to conform himself thereto, as to authoritative expositions
of the law? And is it not reasonable that the same view of the
official oath should be taken by a legislator, acting under the
Constitution, which is his guide, as is taken by a judge, acting
under the law, which is his?
There is, in fact, and in common understanding,
a necessity of regarding a course of practice, as above characterized,
in the light of a legal rule of interpreting a law; and there
is a like necessity of considering it a constitutional rule of
interpreting a constitution.
That there may be extraordinary and peculiar
circumstances controlling the rule in both cases, may be admitted;
but with such exceptions, the rule will force itself on the practical
judgment of the most ardent theorist. He will find it impossible
to adhere to, and act officially upon, his solitary opinions,
as to the meaning of the law or Constitution, in opposition to
a construction reduced to practice during a reasonable period
of time; more especially where no prospect existed of a change
of construction by the public or its agents. And if a reasonable
period of time, marked with the usual sanctions, would not bar
the individual prerogative, there could be no limitation to its
exercise, although the danger of error most increase with the
increasing oblivion of explanatory circumstances, and with the
continued changes in the import of words and phrases.
Let it, then, be left to the decision of every
intelligent and candid judge, which, on the whole, is most to
be relied on for the true and safe construction of the Constitution:--that
which has the uniform sanction of successive legislative bodies
through a period of years, and under the varied ascendency of
parties; not that which depends upon the opinions of every new
legislature, heated as it may be by the spirit of party, eager
in the pursuit of some favorite object, or led away by the eloquence
and address of popular statesmen, themselves, perhaps, under the
influence of the same misleading causes.
It was in conformity with the view here taken
of the respect due to deliberate and reiterated precedent, that
the Bank of the United States, though on the original question
held to be unconstitutional, received the executive signature
in the year 1817. The act originally establishing a bank had undergone
ample discussions in its passage through the several branches
of the government. It had been carried into execution through
a period of twenty years, with annual legislative recognition,--in
one instance, indeed, with a positive ramification of it into
a new state,--and with the entire acquiescence of all the local
authorities, as well as of the nation at large; to all of which
maybe added, a decreasing prospect of any change in the public
opinion adverse to the constitutionality of such an institution.
A veto from the executive, under these circumstances, with an
admission of the expediency, and almost necessity, of the measure,
would have been a defiance of all the obligations derived from
a course of precedents amounting to the requisite evidence of
the national judgment and intentions.
It has been contended that the authority of precedents
was, in that case, invalidated by the consideration, that they
proved only a respect for the stipulated duration of the bank,
with a toleration of it until the law should expire, and by the
casting vote given in the Senate by the Vice-President, in the
year 1811, against a bill for establishing a national bank, the
vote being expressly given on the ground of unconstitutionality.
But if the law itself was unconstitutional, the stipulation was
void, and could not be constitutionally fulfilled or tolerated.
And as to the negative of the Senate by the casting vote of the
presiding officer, it is a fact, well understood at the time,
that it resulted, not from an equality of opinions in that assembly
on the power of Congress to establish a bank, but from a junction
of those who admitted the power, but disapproved the plan, with
those who denied the power. On a simple question of constitutionality
there was a decided majority in favor of it.
Letter to Mr. [Jared] Ingersoll, June 25,
1831, with the introductory paragraph omitted. (Madison,
1865, IV, pages 183-187).
