Fundamental Law and the Supreme Court

• Author: Frank R. Strong
• Pages: 1174-1175

Page 1174

The DECLARATION OF INDEPENDENCE explicitly invoked the concept of natural justice?a HIGHER LAW, timeless and universal?as a defense against tyranny. By the late eighteenth century there had evolved a conviction that the essence of this fundamental law could at one stroke be captured in a document that would endure for ages to come. Of the original state constitutions several were declared in force without constituent ratification and some made no provision for amendment. By the time of the federal CONSTITUTIONAL CONVENTION OF 1787, these extreme forms of immutability had given way. Article V provided a formalized process of constitutional amendment, while Article VII conditioned adoption on ratification by state conventions. But the concept of written constitutions as the embodiment of fundamental law was central to the federal Constitution and to later state constitutions.

The issue whether fundamental law had other appropriate functions in the American constitutional scheme arose early among Justices of the Supreme Court of the United States, and remains critical at the Constitution's bicentenary. Debate opened in CALDER V. BULL (1798). The Connecticut legislature had set aside a court decree refusing to probate a will, granting a new hearing at which

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the will was admitted. Denied relief in the state courts, the disappointed heir appealed to the Supreme Court. Outraged at the destruction of the heir's expectancy, Justice SAMUEL CHASE declared "it is against all reason and justice, for a people to intrust a legislature with such powers, and therefore, it cannot be presumed that they have done it." In Chase's view, the fundamental law could not tolerate "a law that takes property from A and gives it to B," even in the absence of constitutional prohibition. Justice JAMES IREDELL challenged this claim of extraconstitutional power to nullify legislation, insisting that if legislation is within constitutional limits "the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice."

Iredell's logic prevailed in Calder but in the long run could not hold the line. Chief Justice JOHN MARSHALL hedged on the question in FLETCHER V. PECK (1810), declaring that Georgia's attempt to revoke fraudulent land grants was void "either by general principles which are common to our free institutions, or by the particular provisions of the constitution of...