on which the framers of the Constitution laid great stress. The functions of the legislature are more easily distinguished from those of the judiciary than from those of the executive. The legislature makes the law, the judiciary applies it to particular cases by investigating the facts and, when these have been ascertained, by declaring what rule of law governs them. Nevertheless, there are certain points in which the functions of the two departments touch, certain ground debatable between the judiciary on the one hand and the legislature on the other. In most countries the courts have grown out of the legislature; or rather, the sovereign body, which, like Parliament, was originally both a law court and a legislature, has delivered over the bulk of its judicial duties to other persons, while retaining some few to be still exercised by itself.
America has in general followed the principles and practice of England. Like England, she creates no separate administrative tribunals such as exist in the states of the European continent, but allows officials to be sued in or indicted before the ordinary courts. Like England, she has given the judges (i.e., the federal judges) a position secured against the caprice of the legislature or executive. Like England, she recognizes judicial decisions as law until some statute has set them aside. In one respect she has improved on England—viz., in forbidding the legislature to exercise the powers of a criminal court, by passing acts of attainder or of pains and penalties, measures still legal, though virtually obsolete, in England.20 In others, she diverges from England. England has practically ceased to use one branch of her Parliament as a court for the trial of impeachments. America still occasionally throws upon one house of Congress this function; which though it is ill suited to an ordinary court of justice, is scarcely better discharged by a political assembly. England has remitted to the courts of law the trial of disputed parliamentary elections; America still reserves these for Congress, and allows them to be disposed of by partisan votes, often with little regard to the merits. Special and local bills which vest in private hands certain rights of the state, such as public franchises, or the power of taking private property against the owner’s will, are, though in form exercises of legislative power, really fitter to be examined and settled by judicial methods than by the loose opinion, the private motives, the lobbying, which determine legislative decisions where the control of public opinion is insufficiently provided for. England accordingly, though she refers such bills to committees of Parliament, directs these committees to apply a quasi-judicial procedure, and to decide according to the evidence tendered. America takes no such securities, but handles these bills like any others. Here therefore we see three pieces of ground debatable between the legislature and the judiciary. All of them originally belonged to the legislature. All in America still belong to it. England, however, has abandoned the first, has delivered over the second to the judges, and treats the third as matter to be dealt with by judicial rather than legislative methods. Such points of difference are worth noting, because the impression has prevailed in Europe that America is the country in which the province of the judiciary has been most widely extended.
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
