Because an act of Congress is the declaration of a co-ordinate branch of the National Government, the courts have established for themselves certain more or less definite rules governing the conditions under which they will undertake to pass upon the constitutionality of federal statutes. These rules are self-established, under a sense of propriety and expediency, and are not created by any constitutional necessity.1

1. Courts of first instance will not hold an act unconstitutional except in clear cases, but will leave this to the final judgment of the higher courts. Inferior courts hold themselves bound by the prior decisions of superior courts as to the validity of an act, even though new reasons, pro or contra, are raised. The presumption is that all possible arguments were in fact considered by the superior courts.

2. The Supreme Court has held that, ordinarily, it will not hold a law void except by a majority of the full bench. Thus, in 1825, the Court of Appeals of Kentucky refused to follow a decision of the Supreme Court of the United States, which had held a law of Kentucky void as contrary to the federal Constitution, stating as a reason that the decision had not been concurred in by a majority of the entire court.2 After this occurrence the Supreme Court adopted the rule as stated above. In New York v. Miln,3 decided in 1834, Marshall said: "The practice of this court is not (except in cases of absolute necessity) to deliver any judgment in cases where constitutional questions are involved, unless four justices [the court.then consisted of seven] concur in the opinion, thus making the decision that of a majority of the whole court In the present cases four justices do not concur in opinion as to the constitutional questions which have been argued. The court therefore direct these cases to be reargued at the next term, under the expectation that a larger number of the judges may then be present."

1 Cf. the enumeration of these rules by Cooley in his Const. Lim,, Chap. VII.

2 Bodley v. Gaither, 3 Monroe, 57.

3 8 Pet. 120; 8 L. ed. 888.

3. The courts will not pass upon the constitutionality of a law except in suits duly brought before them at the instance of parties whose material interests are involved.4

4 Advisory Opinions: The following data regarding Advisory Opinions is largely taken from Thayer, Cases on Constitutional Law, I, 175.

The constitutions of four of the States (Massachusetts, Maine, New Hampshire, Rhode Island) provide that upon request by the executive or legislature, the judges of the highest courts shall render an opinion upon the constitutionality of a proposed measure submitted to them. And six States (Colorado, Florida, Idaho, Illinois, Nebraska, Washington) provide that judges may suggest improvements in the law for legislative action. (Dealey, Our State Constitutions, p. 10, Annals of the American Academy of Political and Social Science. Supplement, March, 1907.)

In general it may be said that these opinions thus obtained are purely advisory in character, and that they do not even constitute judicial precedents to control the future judgments of the courts that render them. This has been definitely declared in Massachusetts, New Hampshire, Rhode Island, Missouri (where the practice existed from 18G5 to 1875) and Florida. In Maine and Colorado, however, these decisions have been held binding. (12 Col. Rept. 466. 70 Maine, p. 503). The Maine court said: "Various questions involving the true construction of the Constitution and statutes . . . arose, and the Governor called upon this court for its opinion on the questions propounded. The court was required by the Constitution to expound and construe the provisions of the Constitution and statutes involved. It gave full answers. The opinion of the court was thus obtained in one of the modes provided in the Constitution for an authoritative determination of 'important questions of law.' The law thus determined is the conclusive guide of the Governor and Council in the performance of their ministerial duties. Any action on their part ... in violation of the Constitution and law thus declared is a usurpation of authority and must be held void."

Despite Maine and Colorado, the weight cf precedent, as well as the better reason and wisdom, is in favor of holding such opinions advisory merely. Such decisions do not arise out of or relate to any particular facts or particular purpose which might explain or limit the generality of their statements. The judges have not had the benefit of the hearing of counsel, and there has been no argument before them.

The opinions of the Attorney-General of the United States resemble in their advisory character these opinions of judges.

4. The court will not pass adversely upon the validity of an act of Congress unless it is absolutely necessary for it to do so in order to decide the question at issue. This principle has been so often declared that the citation of authorities is not necessary.5

A number of instances have occurred in which justices in States, whose Constitutions did not give the legislature or executive this power to call for their opinions, have refused to give them when called upon to do so. Especially in Minnesota (10 Minn. 78, 1865) the court held unconstitutional an act which provided that "either house may by resolution require the opinion of the Supreme Court or any one or more of the judges thereof upon a given subject, and it shall be the duty of such court, or judges thereof, when so requested respectively to give such opinions in writing."

The Pennsylvania court, however, in a similar case, gave the desired opinion without comment. (3 Binney, 595.)

In several cases, justices have refused, even in those States where the power to call for an opinion is in the Constitution, to give an opinion upon questions which it was possible might afterward come before them for adjudication. Instances of this occurred several times in Missouri and once in Maine.