The doctrine that an unconstitutional law is void is often stated as a deduction from the premise that constitutional law is a superior kind of law to which statute law of inferior rank is obliged to yield. Accurately speaking, however, this is not the case, for the unconstitutional statute is not law at all, whatever its form or however solemnly enacted and promulgated.

There are not and cannot be degrees of legal validity. Any given rule of conduct or definition of a right either is or is not numerous bodies of which the legislature is composed, the popular sympathies which it exciter, and its immediate dependence upon the people by means of frequent periodical elections, it follows that the legislative department of the government will have a decided superiority of influence. It is constantly acting upon all the great interests of society, and agitating its hopes and fears. It is liable to be constantly swayed by popular prejudice and passion, and it is difficult to keep it from pressing with injurious weight upon the constitutional rights and privileges of the other departments. An independent judiciary, venerable by its gravity, its dignity and its wisdom, and, deliberating with entire serenity and moderation, is peculiarly fitted for the exalted duty of expounding the Constitution, and taxing the validity of statutes by that standard. It is only by the free exercise of this power that courts of justice are enabled to repel assaults, and to protect every part of the government, and every member of the community, from undue and destructive innovations upon their chartered rights. It has accordingly become a settled principle in the legal polity of this country, that it belongs to the judicial power, as a matter of right and duty, to declare every act of the legislature, made in violation of the Constitution, null and void." commentaries, Lect. XX.

law. When therefore we describe any particular measure as an unconstitutional law, and therefore, of course, void, we are in fact, strictly speaking, guilty of a contradiction of terms, for if it is unconstitutional it is not a law at all; or, if it is a law, it cannot be unconstitutional. Thus when any particular so-called law is declared unconstitutional by a competent court of last resort, the measure in question is not "vetoed" or "annulled," but simply declared never to have been law at all, never to have been, in fact, anything more than a futile attempt at legislation on the part of the legislature enacting it. This is a very important point, for did the decision of the court operate as a veto the effect would be simply to hold that the law should cease to be valid from and after the time such decision was rendered, whereas, in fact, the effect is to declare that the law never having had any legal force no legal rights or liabilities can be founded upon it. In Norton v. Shelby Co.,6 Mr. Justice Field says: "An unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection, it creates nooffice; it is, in legal contemplation, as inoperative as though it had never been passed."

An exception to this doctrine, and, to the author's mind, an illogical and ill-considered one, is that made by the Supreme Court in Gelpeke v. Dubuque7 and the cases affirming it.8 In these cases it has been held that while a decision of the highest court of a State holding void an act of the State because in conflict with the Constitution of that State will be followed by the federal Supreme Court as to all rights of action accruing after the rendition of such decision, it will not be applied to earlier transactions entered into when the law in question had been declared valid by the state courts and these transactions had been entered into in good faith confiding in the decision of the courts upholding the law.9

6 118 U. S. 425; 6 Sup. Ct. Rep. 1121; 30 L. ed. 178.

7 1 Wall. 175; 17 L. ed. 520.

8 See section 517. There are also some other exceptions, among which is the validity given to acts of de facto officers and de facto corporations whose tenure of office or existence is based upon statutes later held unconstitutional.

9 It may also be proper to observe that acts committed by persons exercising in good faith powers conferred by acts later held unconstitutional are sometimes given a certain validity. This, however, is in accordance with a general principle governing de facto officers and is hardly to be treated as an exception to the doctrine stated in the text. In United States v. Realty Co. (163 U. S. 427; 16 Sup. Ct. Rep. 1120; 41 L. ed. 215) it was held that persons acting in good faith under an unconstitutional act of Congress might have an equitable claim against the United States, for the payment of which an appropriation might be made by Congress.

In declaring unconstitutional, and therefore void, the enactment of a legislative body, it has sometimes been argued that a court defeats the will of the .people as whose law-making organ and mouthpiece the legislature acts. In truth, however, what is done is this: The people, acting solemnly and deliberately in their sovereign capacity, declare that certain matters shall be determined in a certain way. These matters, because of their great and fundamental importance, they reduce to definite written form, and declare they shall not be changed except in a particular manner. In addition to this they go on to say, in substance, that so decided is their will, and so maturely formed their judgment, upon these matters, that any act of their own representatives in legislature inconsistent therewith, is not to be taken as expressing their deliberate will. Therefore, when the courts declare void legislative acts inconsistent with constitutional provisions, the judges are giving effect to the real will of the people as they have previously solemnly declared it. Thus, "In exercising this high authority, the judges claim no judicial supremacy; they are only the administrators of the public will. If an act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden by the Constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law." 10

10 Lindsay v. Commissioners, 2 Ray, 3S, 61.