WOE UNTO YOU, LAWYERS!

amend or rewrite the statute with the fervent hope that maybe this time the words
used will mean the same thing to the Supreme Court that they mean to Congress.
But in the third kind of case that takes up the time of the Supreme Court, there
is no getting around, afterward, what the Court has decided. There is no getting
around these decisions, that is, short of amending the Constitution, changing the
judges who make up the Court, or, most difficult of all, changing the judges’ minds.
The third kind of case – the most important of all – includes all those disputes in
which someone claims that a state law or a federal law – or some action taken under
such a law – “offends” the U.S. Constitution. Here the Supreme Court has the final
word. What it decides and what it says in these cases make up that holy hunk of The
Law known as Constitutional Law.
From the practical or non-legal viewpoint, Constitutional Law adds up,
simply, to a list of all those instances where the Supreme Court as said to Congress
or to a state legislature, “You mayn’t enforce that statute,” – or where it has said to a
federal or state executive officer or administrative board, “You mayn’t carry out that
ruling.” The instances where the Court has said, “You may” don’t count – from a
practical viewpoint. There, the situation would have remained exactly the same if
the Supreme Court had never said anything.
And it is worth noticing that only governments, or people who are performing
government jobs, ever get spanked by the Court for being unconstitutional. The
Constitution protects, within certain limits, free speech; but a man who holds his
hand over another man’s mouth to keep him quiet, though he may get hauled into
court for minor assault and battery, will never get charged with violation of the
Constitution. Thus, what Constitutional Law deals with is the restrictions on certain
forms of government action which are laid down, in the name of the Constitution, by
the Supreme Court, which is – although many people are prone to forget this, -- no
more than one branch of the federal government itself. And all that Constitutional
Law, taking it in the more legal sense, amounts to is the cumulative efforts of the
Supreme Court to explain, justify, or excuse the restrictions it lays down.
Now the basic theory of all Constitutional Law is both simple and sensible. It
is that if Congress or any state or city or village enacts a law that is forbidden by the
Constitution, that law might just as well never have been enacted. It can be ignored;
it is no good; it is unconstitutional. But the fireworks start when it comes down to a
question of who is going to tell whether laws are unconstitutional – and how.
For the Constitution itself, as is little realized, nowhere gives that right to the
Supreme Court. The Supreme Court early assumed that right, so far as state laws
were concerned, and nobody objected much because neither Congress nor the
President wanted to bother to check up on state laws. But the Supreme Court was
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