Front Page Titles (by Subject) chapter 23: The Courts and the Constitution - The American Commonwealth, vol. 1
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
chapter 23: The Courts and the Constitution - Viscount James Bryce, The American Commonwealth, vol. 1 
The American Commonwealth, with an Introduction by Gary L. McDowell, 2 vols (Indianapolis: Liberty Fund, 1995).
Part of: The American Commonwealth, 2 vols.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
The Courts and the Constitution
No feature in the government of the United States has awakened so much curiosity in the European mind, caused so much discussion, received so much admiration, and been more frequently misunderstood, than the duties assigned to the Supreme Court and the functions which it discharges in guarding the ark of the Constitution. Yet there is really no mystery about the matter. It is not a novel device. It is not a complicated device. It is the simplest thing in the world if approached from the right side.
In England and many other modern states there is no difference in authority between one statute and another. All are made by the legislature; all can be changed by the legislature. What are called in England constitutional statutes, such as Magna Charta, the Bill of Rights, the Act of Settlement, the Acts of Union with Scotland and Ireland, are merely ordinary laws, which could be repealed by Parliament at any moment in exactly the same way as it can repeal a highway act or lower the duty on tobacco.1 The habit has grown up of talking of the British Constitution as if it were a fixed and definite thing. But there is in England no such thing as a constitution apart from the rest of the law: there is merely a mass of law, consisting partly of statutes and partly of decided cases and accepted usages, in conformity with which the government of the country is carried on from day to day, but which is being constantly modified by fresh statutes and cases. The same thing existed in ancient Rome, and everywhere in Europe a century ago. It is, so to speak, the “natural,” and used to be the normal, condition of things in all countries, free or despotic.
The condition of America is wholly different. There the name Constitution designates a particular instrument adopted in 1788, amended in some points since, which is the foundation of the national government. This Constitution was ratified and made binding, not by Congress, but by the people acting through conventions assembled in the thirteen states which then composed the Confederation. It created a legislature of two houses; but that legislature, which we call Congress, has no power to alter it in the smallest particular. That which the people have enacted, the people only can alter or repeal.
Here therefore we observe two capital differences between England and the United States. The former has left the outlines as well as the details of her system of government to be gathered from a multitude of statutes and cases. The latter has drawn them out in one comprehensive fundamental enactment. The former has placed these so-called constitutional laws at the mercy of her legislature, which can abolish when it pleases any institution of the country, the Crown, the House of Lords, the Established Church, the House of Commons, Parliament itself.2 The latter has placed her Constitution altogether out of the reach of Congress, providing a method of amendment whose difficulty is shown by the fact that it has been very sparingly used.
In England Parliament is omnipotent. In America Congress is doubly restricted. It can make laws only for certain purposes specified in the Constitution, and in legislating for these purposes it must not transgress any provision of the Constitution itself. The stream cannot rise above its source.
Suppose, however, that Congress does so transgress, or does overpass the specified purposes. It may do so intentionally; it is likely to do so inadvertently. What happens? If the Constitution is to be respected, there must be some means of securing it against Congress. If a usurpation of power is attempted, how is it to be checked? If a mistake is committed, who sets it right?
The point may be elucidated by referring it to a wider category, familiar to lawyers and easily comprehensible by laymen, that of acts done by an agent for a principal. If a landowner directs his bailiff to collect rents for him, or to pay debts due to tradesmen, the bailiff has evidently no authority to bind his employer by any act beyond the instructions given him, as, for instance, by contracting to buy a field. If a manufacturer directs his foreman to make rules for the hours of work and meals in the factory, and the foreman makes rules not only for those purposes, but also prescribing what clothes the workmen shall wear and what church they shall attend, the latter rules have not the force of the employer’s will behind them, and the workmen are not to be blamed for neglecting them.
The same principle applies to public agents. In every country it happens that acts are directed to be done and rules to be made by bodies which are in the position of agents, i.e., which have received from some superior authority a limited power of acting and of rulemaking, a power to be used only for certain purposes or under certain conditions. Where this power is duly exercised, the act or rule of the subordinate body has all the force of an act done or rule made by the superior authority, and is deemed to be made by it. And if the latter be a lawmaking body, the rule of the subordinate body is therefore also a law. But if the subordinate body attempts to transcend the power committed to it, and makes rules for other purposes or under other conditions than those specified by the superior authority, these rules are not law, but are null and void. Their validity depends on their being within the scope of the lawmaking power conferred by the superior authority, and as they have passed outside that scope they are invalid. They do not justify any act done under them forbidden by the ordinary law. They ought not to be obeyed or in any way regarded by the citizens, because they are not law.
The same principle applies to acts done by an executive officer beyond the scope of his legal authority. In free countries an individual citizen is justified in disobeying the orders of a magistrate if he correctly thinks these orders to be in excess of the magistrate’s legal power, because in that case they are not really the orders of a magistrate, but of a private person affecting to act as a magistrate. In England, for instance, if a secretary of state, or a police constable, does any act which the citizen affected by it rightly deems unwarranted, the citizen may resist, by force if necessary, relying on the ordinary courts of the land to sustain him. This is a consequence of the English doctrine that all executive power is strictly limited by the law, and is indeed a cornerstone of English liberty.3 It is applied even as against the dominant branch of the legislature. If the House of Commons should act in excess of the power which the law and custom of Parliament has secured to it, a private individual may resist the officers of the House and the courts will protect him by directing him to be acquitted if he is prosecuted, or, if he is plaintiff in a civil action, by giving judgment in his favour.
An obvious instance of the way in which rules or laws made by subordinate bodies are treated is afforded by the bye-laws made by an English railway company or municipal corporation under powers conferred by an act of Parliament. So long as these bye-laws are within the scope of the authority which the act of Parliament has given, they are good, i.e., they are laws, just as much as if enacted in the act. If they go beyond it, they are bad, that is to say, they bind nobody and cannot be enforced. If a railway company which has received power to make bye-laws imposing fines up to the amount of forty shillings, makes a bye-law punishing any person who enters or quits a train in motion with a fine of fifty shillings or a week’s imprisonment, that bye-law is invalid, that is to say, it is not law at all, and no magistrate can either imprison or impose a fine of fifty shillings on a person accused of contravening it. If a municipal corporation has been by statute empowered to enter into contracts for the letting of lands vested in it, and directed to make bye-laws, for the purpose of letting, which must provide, among other things, for the advertising of all lands intended to be let, and if it makes a bye-law in which no provision is made for advertising, and under that bye-law contracts for the letting of a piece of land, the letting made in pursuance of this bye-law is void, and conveys no title to the purchaser. All this is obvious to a lay as well as to a legal mind; and it is no less obvious that the question of the validity of the bye-law, and of what has been done under it, is one to be decided not by the municipal corporation or company, but by the courts of justice of the land.
Now, in the United States the position of Congress may for this purpose be compared to that of an English municipal corporation or railway company. The supreme lawmaking power is the people, that is, the qualified voters, acting in a prescribed way. The people have by their supreme law, the Constitution, given to Congress a delegated and limited power of legislation. Every statute passed under that power conformably to the Constitution has all the authority of the Constitution behind it. Any statute passed which goes beyond that power is invalid, and incapable of enforcement. It is in fact not a statute at all, because Congress in passing it was not really a lawmaking body, but a mere group of private persons.
Says Chief Justice Marshall, “The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited and to what purpose is that limitation committed to writing, if those limits may at any time be passed by those intended to be restrained? The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like any other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law. If the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.” There is of course this enormous difference between Congress and any subordinate lawmaking authority in England, that Congress is supreme within its proper sphere, the people having no higher permanent organ to override or repeal such statutes as Congress may pass within that sphere; whereas in England there exists in Parliament a constantly present supervising authority, which may at any moment cancel or modify what any subordinate body may have enacted, whether within or without the scope of its delegated powers. This is a momentous distinction. But it does not affect the special point which I desire to illustrate, viz., that a statute passed by Congress beyond the scope of its powers is of no more effect than a bye-law made ultra vires by an English municipality. There is no mystery so far; there is merely an application of the ordinary principles of the law of agency. But the question remains, How and by whom, in case of dispute, is the validity or invalidity of a statute to be determined?
Such determination is to be effected by setting the statute side by side with the Constitution, and considering whether there is any discrepancy between them. Is the purpose of the statute one of the purposes mentioned or implied in the Constitution? Does it in pursuing that purpose contain anything which violates any clause of the Constitution? Sometimes this is a simple question, which an intelligent layman may answer. More frequently it is a difficult one, which needs not only the subtlety of the trained lawyer, but a knowledge of former cases which have thrown light on the same or a similar point. In any event it is an important question, whose solution ought to proceed from a weighty authority. It is a question of interpretation, that is, of determining the true meaning both of the superior law and of the inferior law, so as to discover whether they are inconsistent.
Now the interpretation of laws belongs to courts of justice. A law implies a tribunal, not only in order to direct its enforcement against individuals, but to adjust it to the facts, i.e., to determine its precise meaning and apply that meaning to the circumstances of the particular case. The legislature, which can only speak generally, makes every law in reliance on this power of interpretation. It is therefore obvious that the question, whether a congressional statute offends against the Constitution, must be determined by the courts, not merely because it is a question of legal construction, but because there is nobody else to determine it. Congress cannot do so, because Congress is a party interested. If such a body as Congress were permitted to decide whether the acts it had passed were constitutional, it would of course decide in its own favour, and to allow it to decide would be to put the Constitution at its mercy. The president cannot, because he is not a lawyer, and he also may be personally interested. There remain only the courts, and these must be the national or federal courts, because no other courts can be relied on in such cases. So far again there is no mystery about the matter.
Now, however, we arrive at a feature which complicates the facts, although it introduces no new principle. The United States is a federation of commonwealths, each of which has its own constitution and laws. The federal Constitution not only gives certain powers to Congress, as the national legislature, but recognizes certain powers in the states, in virtue whereof their respective peoples have enacted fundamental state laws (the state constitutions) and have enabled their respective legislatures to pass state statutes. However, as the nation takes precedence of the states, the federal Constitution, which is the supreme law of the land everywhere, and the statutes duly made by Congress under it, are preferred to all state constitutions and statutes; and if any conflict arise between them, the latter must give way. The same phenomenon therefore occurs as in the case of an inconsistency between the Constitution and a congressional statute. Where it is shown that a state constitution or statute infringes either the federal Constitution or a federal (i.e., congressional) statute, the state constitution or statute must be held and declared invalid. And this declaration must, of course, proceed from the courts, nor solely from the federal courts; because when a state court decides against its own statutes or constitution in favour of a federal law, its decision is final.
It will be observed that in all this there is no conflict between the law courts and any legislative body. The conflict is between different kinds of laws. The duty of the judges is as strictly confined to the interpretation of the laws cited to them as it is in England or France; and the only difference is that in America there are laws of four different degrees of authority, whereas in England all laws (excluding mere bye-laws, Privy Council ordinances, etc.) are equal because all proceed from Parliament. These four kinds of American laws are:
The American law court therefore does not itself enter on any conflict with the legislature. It merely secures to each kind of law its due authority. It does not even preside over a conflict and decide it, for the relative strength of each kind of law has been settled already. All the court does is to point out that a conflict exists between two laws of different degrees of authority. Then the question is at an end, for the weaker law is extinct, or, to put the point more exactly, a flaw has been indicated which makes the world see that if the view of the court be correct, the law is in fact null. The court decides nothing but the case before it; and anyone may, if he thinks the court wrong, bring up a fresh case raising again the question whether the law is valid.5
This is the abstract statement of the matter; but there is also an historical one. Many of the American colonies received charters from the British Crown, which created or recognized colonial assemblies, and endowed these with certain powers of making laws for the colony. Such powers were of course limited, partly by the charter, partly by usage, and were subject to the superior authority of the Crown or of the British Parliament. Questions sometimes arose in colonial days whether the statutes made by these assemblies were in excess of the powers conferred by the charter; and if the statutes were found to be in excess, they were held invalid by the courts, that is to say, in the first instance, by the colonial courts, or, if the matter was carried to England, by the Privy Council.6
When the thirteen American colonies asserted their independence in 1776, they replaced these old charters by new constitutions,7 and by these constitutions entrusted their respective legislative assemblies with certain specified and limited legislative powers. The same question was then liable to recur with regard to a statute passed by one of these assemblies. If such a statute was in excess of the power which the state constitution conferred on the state legislature, or in any way transgressed the provisions of that constitution, it was invalid, and acts done under it were void. The question, like any other question of law, came for decision before the courts of the state. Thus, in 1786, the supreme court of Rhode Island held that a statute of the legislature which purported to make a penalty collectible on summary conviction, without trial by jury, gave the court no jurisdiction, i.e., was invalid, the colonial charter, which was then still in force as the constitution of the state, having secured the right of trial by jury in all cases.8 When the Constitution of the United States came into operation in 1789, and was declared to be paramount to all state constitutions and state statutes, no new principle was introduced; there was merely a new application, as between the nation and the states, of the old doctrine that a subordinate and limited legislature cannot pass beyond the limits fixed for it. It was clear, on general principles, that a state law incompatible with a federal law must give way; the only question was: What courts are to pronounce upon the question whether such incompatibility exists? Who is to decide whether or not the authority given to Congress has been exceeded, and whether or not the state law contravenes the federal Constitution or a federal statute?
In 1787 the only then-existing courts were the state courts. If a case coming before them raised the point whether a state constitution or statute was inconsistent with the federal Constitution or a statute of Congress, it was their duty to decide it, like any other point of law. But their decision could not safely be accepted as final, because, being themselves the offspring of, and amenable to, the state governments, they would naturally tend to uphold state laws against the federal Constitution or statutes. Hence it became necessary to set up courts created by the central federal authority and coextensive with it—that is to say, those federal courts which have been already described. The matter seems complicated, because we have to consider not only the superiority of the federal Constitution to the federal legislature, but also the superiority of both the federal Constitution and federal statutes to all state laws. But the principle is the same and equally simple in both sets of cases. Both are merely instances of the doctrine, that a lawmaking body must not exceed its powers, and that when it has attempted to exceed its powers, its so-called statutes are not laws at all, and cannot be enforced.
In America the supreme lawmaking power resides in the people. Whatever they enact is universally binding. All other lawmaking bodies are subordinate, and the enactments of such bodies must conform to the supreme law, else they will perish at its touch, as a fishing smack goes down before an ocean steamer. And these subordinate enactments, if at variance with the supreme law, are invalid from the first, although their invalidity may remain for years unnoticed or unproved. It can be proved only by the decision of a court in a case which raises the point for determination. The phenomenon cannot arise in a country whose legislature is omnipotent, but naturally9 arises wherever we find a legislature limited by a superior authority, such as a constitution which the legislature cannot alter.
In England the judges interpret acts of Parliament exactly as American judges interpret statutes coming before them. If they find an act conflicting with a decided case, they prefer the act to the case, as being of higher authority. As between two apparently conflicting acts, they prefer the later, because it is the last expression of the mind of Parliament. If they misinterpret the mind of Parliament, i.e., if they construe an act in a sense which Parliament may not have intended, their decision is nevertheless valid, and will be followed by other courts of the same rank until Parliament speaks its mind again by another act. The only difference between their position and that of their American brethren is that they have never to distinguish between the authority of one enactment and of another, otherwise than by looking to the date, and that they therefore need never to inquire whether an act of Parliament was invalid when first passed. Invalid it could not have been, because Parliament is omnipotent, and Parliament is omnipotent because Parliament is deemed to be the people. Parliament is not a body with delegated or limited authority. The whole fulness of popular power dwells in it. The whole nation is supposed to be present within its walls.10 Its will is law; or, as Dante says in a famous line, “its will is power.”
There is a story told of an intelligent Englishman who, having heard that the Supreme Federal Court was created to protect the Constitution, and had authority given it to annul bad laws, spent two days in hunting up and down the federal Constitution for the provisions he had been told to admire. No wonder he did not find them, for there is not a word in the Constitution on the subject. The powers of the federal courts are the same as those of all other courts in civilized countries, or rather they differ from those of other courts by defect and not by excess, being limited to certain classes of cases. The so-called “power of annulling an unconstitutional statute” is a duty rather than a power, and a duty incumbent on the humblest state court when a case raising the point comes before it no less than on the Supreme Federal Court at Washington. When therefore people talk, as they sometimes do, even in the United States, of the Supreme Court as “the guardian of the Constitution,” they mean nothing more than that it is the final court of appeal, before which suits involving constitutional questions may be brought up by the parties for decision. In so far the phrase is legitimate. But the functions of the Supreme Court are the same in kind as those of all other courts, state as well as federal. Its duty and theirs is simply to declare and apply the law; and where any court, be it a state court of first instance, or the federal court of last instance, finds a law of lower authority clashing with a law of higher authority, it must reject the former, as being really no law, and enforce the latter.
It is therefore no mere technicality to point out that the American judges do not, as Europeans are apt to say, “control the legislature,” but simply interpret the law. The word “control” is misleading, because it implies that the person or body of whom it is used possesses and exerts discretionary personal will. Now the American judges have no discretionary will in the matter any more than has an English court when it interprets an act ofy Parliament. The will that prevails is the will of the people, expressed in the Constitution which they have enacted. All that the judges have to do is to discover from the enactments before them what the will of the people is, and apply that will to the facts of a given case. The more general or ambiguous the language which the people have used, so much the more difficult is the task of interpretation, so much greater the need for ability and integrity in the judges. But the task is always the same in its nature. The judges have no concern with the motives or the results of an enactment, otherwise than as these may throw light on the sense in which the enacting authority intended it. It would be a breach of duty for them to express, I might almost say a breach of duty to entertain, an opinion on its policy except so far as its policy explains its meaning. They may think a statute excellent in purpose and working, but if they cannot find in the Constitution a power for Congress to pass it, they must brush it aside as invalid. They may deem another statute pernicious, but if it is within the powers of Congress, they must enforce it. To construe the law, that is, to elucidate the will of the people as supreme lawgiver, is the beginning and end of their duty. And if it be suggested that they may overstep their duty, and may, seeking to make themselves not the exponents but the masters of the Constitution, twist and pervert it to suit their own political views, the answer is that such an exercise of judicial will would rouse the distrust and displeasure of the nation, and might, if persisted in, provoke resistance to the law as laid down by the court, possibly an onslaught upon the court itself.
To insist upon the fact that the judiciary of the United States are not masters of the Constitution but merely its interpreters is not to minimize the importance of their functions, but to indicate their true nature. The importance of those functions can hardly be exaggerated. It arises from two facts. One is that as the Constitution cannot easily be changed, a bad decision on its meaning, i.e., a decision which the general opinion of the profession condemns, may go uncorrected. In England, if a court has construed a statute in a way unintended or unexpected, Parliament can set things right next session by amending the statute, and so prevent future decisions to the same effect. But American history shows only one instance in which an unwelcome decision on the meaning of the Constitution has been thus dealt with, viz., the decision, that a state could be sued by a private citizen,11 which led to the Eleventh Amendment, whereby it was declared that the Constitution should not cover a case which the court had held it did cover.
The other fact which makes the function of an American judge so momentous is the brevity, the laudable brevity, of the Constitution. The words of that instrument are general, laying down a few large principles. The cases which will arise as to the construction of these general words cannot be foreseen till they arise. When they do arise the generality of the words leaves open to the interpreting judges a far wider field than is afforded by ordinary statutes which, since they treat of one particular subject, contain enactments comparatively minute and precise. Hence, although the duty of a court is only to interpret, the considerations affecting interpretation are more numerous than in the case of ordinary statutes, more delicate, larger in their reach and scope. They sometimes need the exercise not merely of legal acumen and judicial fairness, but of a comprehension of the nature and methods of government which one does not demand from the European judge who walks in the narrow path traced for him by ordinary statutes. It is therefore hardly an exaggeration to say that the American Constitution as it now stands, with the mass of fringing decisions which explain it, is a far more complete and finished instrument than it was when it came fire-new from the hands of the Convention. It is not merely their work but the work of the judges, and most of all of one man, the great Chief Justice Marshall.
The march of democracy in England has disposed some English political writers of the very school which in the last generation pointed to America as a terrible example, now to discover that her republic possesses elements of stability wanting in the monarchy of the mother country. They lament that England should have no supreme court. Some have even suggested that England should create one. They do not seem to perceive that the dangers they discern arise not from the want of a court but from the omnipotence of the British Parliament. They ask for a court to guard the British Constitution, forgetting that Britain has no constitution, in the American sense, and never had one, except for a short space under Oliver Cromwell. The strongest court that might be set up in England could effect nothing so long as Parliament retains its power to change every part of the law, including all the rules and doctrines that are called constitutional. If Parliament were to lose that power there would be no need to create a supreme court, because the existing judges of the land would necessarily discharge the very functions which American judges now discharge. If Parliament were to be split up into four parliaments for England, Scotland, Ireland, and Wales, and a new federal assembly were to be established with limited legislative powers, powers defined by an instrument which neither the federal assembly nor any of the four parliaments could alter, questions would forthwith arise as to the compatibility both of acts passed by the assembly with the provisions of the instrument, and of acts passed by any of the four parliaments with those passed by the assembly. These questions would come before the courts and be determined by them like any other question of law. The same thing would happen if Britain were to enter into a federal pact with her colonies, creating an imperial council, and giving it powers which, though restricted by the pact to certain purposes, transcended those of the British Parliament. The interpretation of the pact would belong to the courts, and both Parliament and the supposed council would be bound by that interpretation.12 If a new supreme court were created by Britain, it would be created not because there do not already exist courts capable of entertaining all the questions that could arise, but because the parties to the new constitution enacted for the United Kingdom, or the British Empire (as the case might be), might insist that a tribunal composed of persons chosen by some federal authority would be more certainly impartial. The preliminary therefore to any such “judicial safeguard” as has been suggested is the extinction of the present British Parliament and the erection of a wholly different body or bodies in its room.
These observations may suffice to show that there is nothing strange or mysterious about the relation of the federal courts to the Constitution. The plan which the Convention of 1787 adopted is simple, useful, and conformable to general legal principles. It is, in the original sense of the word, an elegant plan. But it is not novel, as was indeed observed by Hamilton in the Federalist. It was at work in the states before the Convention of 1787 met. It was at work in the thirteen colonies before they revolted from England. It is an application of old and familiar legal doctrines. Such novelty as there is belongs to the scheme of a supreme or rigid constitution, reserving the ultimate power to the people, and limiting in the same measure the power of the legislature.13
It is nevertheless true that there is no part of the American system which reflects more credit on its authors or has worked better in practice. It has had the advantage of relegating questions not only intricate and delicate, but peculiarly liable to excite political passions, to the cool, dry atmosphere of judicial determination. The relations of the central federal power to the states, and the amount of authority which Congress and the president are respectively entitled to exercise, have been the most permanently grave questions in American history, with which nearly every other political problem has become entangled. If they had been left to be settled by Congress, itself an interested party, or by any dealings between Congress and the state legislatures, the dangers of a conflict would have been extreme, and instead of one civil war there might have been several. But the universal respect felt for the Constitution, a respect which grows the longer it stands, has disposed men to defer to any decision which seems honestly and logically to unfold the meaning of its terms. In obeying such a decision they are obeying, not the judges, but the people who enacted the Constitution. To have foreseen that the power of interpreting the federal Constitution and statutes, and of determining whether or not state constitutions and statutes transgress federal provisions, would be sufficient to prevent struggles between the national government and the state governments, required great insight and great faith in the soundness and power of a principle. While the Constitution was being framed the suggestion was made, and for a time seemed likely to be adopted, that a veto on the acts of state legislatures should be conferred upon the federal Congress. Discussion revealed the objections to such a plan. Its introduction would have offended the sentiment of the states, always jealous of their autonomy; its exercise would have provoked collisions with them. The disallowance of a state statute, even if it did really offend against the federal Constitution, would have seemed a political move, to be resented by a political countermove. And the veto would often have been pronounced before it could have been ascertained exactly how the state statute would work, sometimes, perhaps, pronounced in cases where the statute was neither pernicious in itself nor opposed to the federal Constitution. But by the action of the courts the self-love of the state is not wounded, and the decision declaring one of their laws invalid is nothing but a tribute to the higher authority of that supreme enactment to which they were themselves parties, and which they may themselves desire to see enforced against another state on some not remote occasion. However, the idea of a veto by Congress was most effectively demolished in the Convention by Roger Sherman, who acutely remarked that a veto would seem to recognize as valid the state statute objected to, whereas if inconsistent with the Constitution it was really invalid already and needed no veto.
By leaving constitutional questions to be settled by the courts of law another advantage was incidentally secured. The court does not go to meet the question; it waits for the question to come to it. When the court acts it acts at the instance of a party. Sometimes the plaintiff or the defendant may be the national government or a state government, but far more frequently both are private persons, seeking to enforce or defend their private rights. For instance, in the famous case14 which established the doctrine that a statute passed by a state repealing a grant of land to an individual made on certain terms by a previous statute is a law “impairing the obligation of a contract,” and therefore invalid, under art. I, § 10 of the federal Constitution; the question came before the court on an action by one Fletcher against one Peck on a covenant contained in a deed made by the latter; and to do justice between plaintiff and defendant it was necessary to examine the validity of a statute passed by the legislature of Georgia. This method has the merit of not hurrying a question on, but leaving it to arise of itself. Full legal argument on both sides is secured by the private interests which the parties have in setting forth their contentions; and the decision when pronounced, since it appears to be, as in fact it is, primarily a decision upon private rights, obtains that respect and moral support which a private plaintiff or defendant establishing his legal right is entitled to from law-abiding citizens. A state might be provoked to resistance if it saw, as soon as it had passed a statute, the federal government inviting the Supreme Court to declare that statute invalid. But when the federal authority stands silent, and a year after in an ordinary action between Smith and Jones the court decides in favour of Jones, who argued that the statute on which the plaintiff relied was invalid because it transgressed some provision of the Constitution, everybody feels that Jones was justified in so arguing, and that since judgment was given in his favour he must be allowed to retain the money which the court has found to be his, and the statute which violated his private right must fall to the ground.
This feature has particularly excited the admiration of Continental critics. To an Englishman it seems perfectly natural, because it is exactly in this way that much of English constitutional law has been built up. The English courts had indeed no rigid documentary constitution by which to test the ordinances or the executive acts of the Crown, and their decisions on constitutional points have often been pronounced in proceedings to which the Crown or its ministers were parties. But they have repeatedly established principles of the greatest moment by judgments delivered in cases where a private interest was involved, grounding themselves either on a statute which they interpreted or on some earlier decision.15 Lord Mansfield’s famous declaration that slavery was legally impossible in England was pronounced in such a private case. Stockdale v. Hansard, in which the law regarding the publishing of debates in Parliament was settled, was an action by a private person against printers. The American method of settling constitutional questions, like all other legal questions, in actions between private parties, is therefore no new device, but a part of that priceless heritage of the English common law which the colonists carried with them across the sea, and which they have preserved and developed in a manner worthy of its own free spirit and lofty traditions.
Those err who suppose that the functions above described as pertaining to the American courts are peculiar to and essential to a federal government. These functions are not peculiar to a federation, because the distinction of fundamental laws and inferior laws may exist equally well in a unified government, did exist in each of the thirteen colonies up till 1776, did exist in each of the thirteen states from 1776 till 1789, does exist in every one of the forty-eight states now. Nor are they essential, because a federation may be imagined in which the central or national legislature should be theoretically sovereign in the same sense and to the same full extent as is the British Parliament.16 The component parts of any confederacy will no doubt be generally disposed to place their respective states’ rights under the protection of a compact unchangeable by the national legislature. But they need not do so, for they may rely on the command which as electors they have over that legislature, and may prefer the greater energy which a sovereign legislature promises to the greater security for states’ rights which a limited legislature implies. In the particular case of America it is abundantly clear that if there had been in 1787 no states jealous of their powers, but an united nation creating for itself an improved frame of government, the organs of that government would have been limited by a fundamental law just as they have in fact been, because the nation, fearing and distrusting the agents it was creating, was resolved to fetter them by reserving to itself the ultimate and overriding sovereignty.
The case of Switzerland shows that the American plan is not the only one possible to a federation. The Swiss Federal Court, while instituted in imitation of the American, is not the only authority competent to determine whether a cantonal law is void because inconsistent with the federal Constitution, for in some cases recourse must be had not to the Court but to the Federal Council, which is a sort of executive cabinet of the Confederation. And the Federal Court is bound to enforce every law passed by the federal legislature, even if it appear to conflict with the Constitution. In other words, the Swiss Constitution has reserved some points of cantonal law for an authority not judicial but political, and has made the federal legislature the sole judge of its own powers, the authorized interpreter of the Constitution, and an interpreter not likely to proceed on purely legal grounds.17 To an English or American lawyer the Swiss copy seems neither so consistent with sound theory nor so safe in practice as the American original. But the statesmen of Switzerland felt that a method fit for America might be ill-fitted for their own country, where the latitude given to the executive is greater; and the Swiss habit of constantly recurring to popular vote makes it less necessary to restrain the legislature by a permanently enacted instrument. The political traditions of the European continent differ widely from those of England and America; and the federal judicature is not the only Anglo-American institution which might fail to thrive anywhere but in its native soil.
 This doctrine, although long since well settled, would not have been generally accepted in the beginning of the seventeenth century. As Sir Thomas More had maintained that an act of Parliament could not make the king supreme head of the Church, so Coke held that the common law controlled acts of parliament and adjudged them void when against common right.
 Parliament of course cannot restrict its own powers by any particular act, because that act might be repealed in a subsequent session, and indeed any subsequent act inconsistent with any of its provisions repeals ipso facto that provision. (For instance, the Act of Union with Scotland [6 Anne, c. 11] declared certain provisions of the Union, for the establishment of Presbyterian church government in Scotland, to be “essential and fundamental parts of the Union,” but some of these provisions have been altered by subsequent statutes.) Parliament, could, however, extinguish itself by formally dissolving itself, leaving no legal means whereby a subsequent Parliament could be summoned.
 See as to the different doctrine and practice of the European continent, and particularly as to the “administrative law” of France, the instructive remarks of Mr. Dicey in his Law of the Constitution.
 Of these, the federal Constitution prevails against all other laws. Federal statutes, if made in pursuance of and conformably to the Constitution, prevail against III and IV. If in excess of the powers granted by the Constitution, they are wholly invalid. A state constitution yields to I and II, but prevails against the statutes of the state.
Treaties have the same authority as federal statutes (they may be altered by statute). It need hardly be said that executive or departmental orders made under powers conferred by a statute have statutory force.
 This happened in the legal tender question (see next chapter). But in ninety-nine instances out of a hundred, the legal profession and the public admit the correctness, and therewith the authority, of the view which the court has taken. The court has itself declared that its declaration of the unconstitutionality of a statute must nowise be taken as amounting to a repeal of that statute. See In re Rahrer, 140 U.S. Rep. p. 545.
 The same thing happens even now as regards the British colonies. The question was lately argued before the Privy Council whether the legislature of the Dominion of Canada, created by the British North America Act of 1867 (an imperial statute), had power to extinguish the right of appeal from the supreme court of Canada to the British queen in council.
 Connecticut and Rhode Island, however, went on under the old charters, with which they were well content. See as to this whole subject, Chapter 37, on state constitutions.
 In the case of Trevett v. Weedon, the first case of importance in which a legislative act was held unconstitutional for incompatibility with a state constitution, although the doctrine seems to have been laid down by the supreme court of New Jersey in Holmes v. Walton (1780), as well as in Virginia in 1782, and in New York in 1784. See Judge Elliott’s article in Political Science Quarterly for June 1890, p. 233.
 I do not say “necessarily,” because there are countries on the European continent where, although there exists a constitution superior to the legislature, the courts are not allowed to hold a legislative act invalid, because the legislature is deemed to have the right of taking its own view of the constitution. This seems to be the case both in France and in Switzerland. So in the German Empire the Reichskammergericht cannot question an act of the imperial legislature; and in Belgium, though it has been thought that the courts possess such a power, it is now held that they do not possess it.
 The old writers say that the reason why an act of Parliament requires no public notification in the country is because it is deemed to be made by the whole nation, so that every person is present at the making of it. It is certainly true that the orthodox legal view of Parliament never regards it as exercising powers that can in any sense be called delegated. A remarkable example of the power which Parliament can exert as an ultimately and completely sovereign body is afforded by the Septennial Act (I Geo. I. st. 2, cap. 38). By this statute a Parliament in which the House of Commons had been elected for three years only, under the Triennial Act then in force, prolonged not only the possible duration of future Parliaments but its own term to seven years, taking to itself four years of power which the electors had not given it.
 See the last preceding chapter. The doctrine of the Dred Scott case (of which more anon) was set aside by the Fourteenth Amendment, but that amendment was intended to effect much more than merely to correct the court.
 Assuming of course that the power of altering the pact was reserved to some authority superior to either the council or Parliament.
 So Mr. Wilson observed (speaking of the state constitutions) in the Pennsylvania Convention of 1787: “Perhaps some politician who has not considered with sufficient accuracy our political systems would observe that in our governments the supreme power was vested in the constitutions. This opinion approaches the truth, but does not reach it. The truth is that in our governments the supreme, absolute, and uncontrollable power remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions.” —Elliot’s Debates, vol. ii, 432.
Mr. M’Kean, speaking in the same convention, quoted Locke’s Civil Government (c. 2, § 140, and c. 13, § 152) as an authority for the proposition that the powers of Congress could be no greater than the positive grant might convey.
As to rigid constitutions, see Chapter 31 post; and, for a fuller treatment, an essay in my Studies in History and Jurisprudence.
Fletcher v. Peck, 6 Cranch, p. 87.
 The independence of the English judges (since the Revolution) and of the American federal judges has of course largely contributed to make them trusted, and to make them act worthily of the trust reposed in them.
 It would appear that in the Achæan League the Assembly (which voted by cities) was sovereign, and could by its vote vary the terms of the federal arrangements between the cities forming the federation; although the scantiness of our data and what may be called the want of legal-mindedness among the Greeks make this and similar questions not easy of determination.
 See upon this fascinating subject, the provisions of the Swiss Federal Constitution of 1874, arts. 102, 110, and 114; also Dubs, Das öffentliche Recht der Schweizerischen Eidgenossenschaft, and a valuable pamphlet by M. Ch. Soldan, entitled Du recours de Droit Public au Tribunal Fédéral; Bâle, 1886. Dr. Dubs was himself the author of the plan whereby the federal legislature is made the arbiter of its own constitutional powers.