Why do any judges wonder whether they have authority to rule a statute unconstitutional?

Aug 26, 2009 Why do any judges wonder whether they have authority to rule a statute unconstitutional?

Over a year ago, I argued to a Virginia District Court judge that a statutory sentencing provision was unconstitutional. He thought about it, and then said that he had concluded that my Constitutional argument had to be argued in the Circuit Court through a de novo appeal. In Virginia and Maryland, the District Court sentence provides no cap on the sentence in Circuit Court if the de novo appeal results in a conviction, which can make the stakes high sometimes to proceed with such an appeal.

I have heard some prosecutors in Maryland also argue in court that the District Court judge has no authority to decide whether a law is unconstitutional. In those instances, the judge denied my objection without saying whether they thought they had no such jurisdiction.

Many things that prosecutors and police do make me displeased about paying taxes that pay the salaries of some of them. Prosecutors who make the foregoing arguments fall in that category.

The foregoing issue was discussed recently on a criminal defense lawyers listserv. One of the listserv members gave an opinion that when the state legislature gives a court subject matter jurisdiction over a proceeding or subject, the Supremacy Clause of the United States Constitution empowers the court to rule that a law violates the U.S. Constitution. That makes sense, and I hope that judges will so agree, whether they happen to be federal, state or municipal judges. Of course, a deeper debate might be involved about the power of administrative law judges to rule statutes and regulations unconstitutional, but administrative law judges are not real judges, but instead are part of the executive branch of government, at least where I practice law.

Following is critical language from [William] Marbury v. [James] Madison, 5 U.S. 137, 178-79 (1803) that underscores that judges are empowered to rule on the Constitutionality of a statute or regulation:

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions — a written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the Constitution.

Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

Marbury v. Madison, 5 U.S. at 178-79.

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