Page images

the law is enforced in his case. On the other hand, if the final and authoritative determination is postponed until the question arises in the course of a judicial controversy respecting some right or duty or power of an individual who is to be affected by the law, or who acts under it, the question itself is propounded not in the abstract, but in the concrete; not in reference to the bearing of the law upon all possible cases, but to its bearing upon the facts of a single case. In this aspect, the question is of necessity strictly judicial. To withhold from the citizen a right to be heard upon the question which in our jurisprudence is called the constitutionality of a law, when that law is supposed to govern his rights or prescribe his duties, would be as unjust as it would be to deprive him of the right to be heard upon the construction of the law, or upon any other legal question that arises in the cause. The citizen lives under the protection, and is subject to the requirements, of a written fundamental law. No department of the national, or of any State government, can lawfully act otherwise than according to the powers conferred or the restrictions imposed by that instrument. If the citizen believe himself to be aggrieved by some action of either government which he supposes to be in violation of the Constitution, and his complaint admit of judicial investigation, he must be heard upon that question, and it must be adjudicated, or there can be no administration of the laws worthy of the name of justice.

It is interesting, therefore, to observe how this

function of the judicial power gives to the operation of the government a comparatively high degree of simplicity, exactness, and directness, notwithstanding the refined and complex character of the system which its framers were obliged to establish. To judge of the merits of that system, in this particular, it is necessary to recur again to those alternative measures, to which I have frequently referred, and which lay directly in their path. One of these measures was that of a council of revision, to be charged with the duty of arresting improper laws. Besides the objection which has been already alluded to, that the question of the conformity of a law to the Constitution would have thus been finally passed upon in the abstract,—such an institution, although theoretically confined to this inquiry, would have become practically a third legislative chamber; for it would inevitably have happened that considerations of expediency would also have found their way into the deliberations of a numerous body appointed to exercise a revisory power over all acts of legislation. There is no mode in which the question of constitutional power to enact a law can be determined, without the influence of considerations of policy or expediency, so effectually, as by confining the final determination to the special operation of the law upon the facts of an individual case. When the tribunal that is to decide this question is, by the very form in which it is required to act, limited to the bearing of the law upon some right or duty of an individual placed in judgment by a record, it is

at once relieved of the responsibility, and in a great degree freed from the temptation, of considering the policy of the legislation. If, therefore, it be conceded as every one will concede that, whatever public body is specially instituted for the purpose of submitting the acts of the legislature to the test of the Constitution, it should neither possess the power, nor be exposed to the danger, of invading the legislative province, by acting upon motives of expediency, it must be allowed that the framers of the Constitution did wisely in rejecting the artificial, cumbrous, and hazardous project of a council of revision. The plan of such a council was, it is true, much favored, and indeed insisted upon, by some of the wisest men in the Convention. But it was urged at a time when the negative that was to be given to the President had not been settled, and when he had not been made sufficiently independent of the legislature to insure his unfettered employment of the negative that might be given to him. The purpose of the proposed council of revision was to strengthen his hands, by uniting the judges with him in the exercise of the "veto." This would have given to the judges a control both over the question of constitutional power and the question of legislative policy. As to the latter, it became unnecessary, as well as inexpedient,- to unite the judges with the President, after he had been clothed with a suitable negative, and after his election had been taken from the legislature; and as to the former question, the final arrangement of the judicial power

made it equally unnecessary to form the judges into a council of revision, since, if the President should fail to arrest an unconstitutional law, when presented for his approval, it could be tested in the ordinary course of judicial proceedings after it had gone into operation.

But the conformity of laws of Congress to the Constitution was not all that was to be secured. Some prudent and effectual means were to be devised, by which the acts of the State governments could be subjected to the same test. The project of submitting the laws of the States to some department of the general government, while they were in the process of being enacted, or before they could have the form of law, was full of inconvenience and hazard. It could not have been attempted without an injury to State pride, that would have aroused an inextinguishable opposition to the national authority, even if the plan could once have been assented to. Yet there was no other alternative, unless the judicial power of the general government should be so constructed as to enable it to take the same cognizance of a constitutional question, when arising upon the law of a State, that it was to take of such a question when arising upon an act of Congress. The same necessity would exist in the one case, as in the other, for a power within the general government to give practical effect to that supremacy which the Constitution was to claim for itself, for treaties, and for the laws passed in pursuance of its provisions. All the restrictions which the Constitution was to lay upon

the powers of the States would be nugatory, if the States themselves were to be the final judges of their meaning and operation. This transcendent power of interpretation and application, so logically necessary, and yet so certain to wound and irritate, if exercised by direct interference, could be wielded, without injurious results, through the agency of judicial forms, by a judicial investigation into personal rights, when affected by the action of a State government, just as it could be in reference to the acts of any department of the national government that could be made the subject of proceedings in a court of justice.

The relation of the judicial power to the execution of treaties rests upon the same grounds of paramount necessity. It is not merely for the sake of uniformity of interpretation, that the national judiciary is authorized to decide finally all cases arising under treaties, although uniformity of interpretation is essential to the preservation of the public faith; but it is in order that the treaty shall be executed, by being placed beyond the hazards both of wrong construction and of interested opposition. The memorable instance of the Treaty of Peace, the absolute failure of which in point of execution, before the adoption of the Constitution, has been described in the first volume of this work, presents the great illustration, in our constitutional history, of the only mode in which the supremacy of treaty stipulations as law can be maintained in our system of govern"The United States in Congress assembled,"


« EelmineJätka »