CHIEF JUSTICE LATHAM.
[a] pretended law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it. Naturally he will feel safer if he has a decision of a court in his favour –– but such a decision is not an element which produces invalidity in any law. The law is not valid until a court pronounces against it –– and thereafter invalid. If it is beyond power it is invalid ab initio.
The void ab initio doctrine sets out the orthodox view of the consequences of constitutional invalidity.3
Despite the theoretical appeal of the void ab initio doctrine, it is clear that it can cause immense inconvenience, especially in the context of an unconstitutional statute that has facilitated a vast number of governmental acts and private transactions. When such a statute is declared invalid, the void ab initio doctrine holds that all public and private acts performed in reliance on that statute have no legal foundation. In a pen-stroke, governments and private individuals can be exposed to potentially enormous liability. Indeed, this may be a context in which it is timely to recall that ‘a written constitution is not a suicide pact’.4