that which it afterwards designates as the supreme law of the land. It could not be more clearly stated that nowhere and nohow outside of the federal government are single parts of the commonwealth and of the whole people to decide in the last instance, but that a factor of the federal government, created for this purpose, is to decide, in a way binding upon all, what the law is, according to the constitution and the federal laws, provided the questions in dispute come in form and substance within the scope of this provision. There is not the slightest support in the constitution for the assertion of the state's-rights school that this can never be the case in disputes about the respective authority of the federal government and the sovereign states. This assertion rests only upon a general abstract argument from the alleged nature of the Union as a league of states. On the other hand, it has never been questioned that this clause does not cover all the disputed questions of constitutional law, and that even questions of the relative authority of the federal government and of the states cannot always be brought within it. In the first

1 Even Madison could bring forward no other argument when he, well-called the father of the constitution, was driven by the stream of events into the front rank of the state's-rights school. He said, in 1800, in the Virginia report, "in relation to the rights of the parties to the constitutional compact," that the federal courts could not possibly decide in the last instance, because, " on any other hypothesis, the delegation of judicial power would annul the authority delegating it." The Federalist, No. 39, had expressly stated that the supreme court" in controversies between the two jurisdictions," that is, of the states and of the Union, "is ultimately to decide." In 1810, Pennsylvania proposed to create, by an amendment to the constitution, another tribunal for the decision of such questions. Nine states, among them six slave states, with Virginia at their head, rejected this upon the ground that the supreme court was already entrusted with this task. Not one state voted for the amendment.

place, the controversy must have assumed the form of an actual law-suit in order to come before the courts at all. If it has been brought before them in this form, yet they never sit as courts to decide directly upon the constitutionality of laws, or of other acts of the government. They decide constitutional questions in a given case only by stating the reasons for their judgment. Strictly speaking, it is only the case which is decided, and therefore their judgment is absolutely binding on all individuals and on all political powers only so far as this case is concerned. But since it is fair to assume that in all analogous cases the same decision would be given, the reasons for a judgment upon the constitutionality of the law usually amount to an actual decision of the question of constitutionality. But that these questions cannot be decided, in a proper sense of the word, is clear from the fact that the supreme court can change its opinion, and has changed it, in constitutional questions of the highest significance after the lapse of a comparatively short time.' It sometimes only needs the introduction of a single

1 Thus, for example, in the so-called legal tender cases in 1870, by five to three votes, the court denied congress the power to make the paper money of the United States legal tender for debts contracted previously. In the following year, this decision was reversed. The reversal was brought about by adding one judge to the supreme court, and by notifying the president that the senate would make its approval of the nomination of the new judge, as well as of one to fill a vacancy which had meanwhile occurred, dependent upon the position of the candidates on this question. President Grant responded to the wish of his party and the previous majority became a minority. See the article entitled "The Session," in The North American Review, CXI., pp. 48, 49. The new decision based the power upon the war power. Now, in 1884, the authority has been again recognized, but inasmuch as, in this case, an appeal to the war power was not possible, it has been deduced from the right to borrow money. The majority of 1871 declared that this had nothing to do with the matter, and therefore based it upon the war power.

new judge to transform the minority into a majority. Moreover, the supreme court is not superior, but equal, to the two other factors of the federal government. Within the sphere of their authority, the latter are not only authorized but directed to judge with entire independence of the constitutionality of their acts. While the supreme court has always given its opinion in the last instance in regard to disputed questions of constitutional law which belonged to its forum, and were brought before it in a constitutional way,' it has also repeatedly declared that it was neither directed nor permitted to concern itself with the political duties of the president, and especially was not authorized to interfere with them upon the assumption that he was about to carry out an unconstitutional law. And it is even more certain that it does not belong to the supreme court to make rules for the exercise by congress of its legislative powers. The task of the court is to say what is law under the constitution, the federal laws and treaties. The task of congress, on the other hand, is to decide what shall be law under the constitution. Thus, for example, not the court, but congress

3

1 See Martin vs. Hunter, Wheaton, I., 304; McCulloch vs. Maryland, Ibid., IV., 316; Cohens vs. Virginia, Ibid., VI., 264; Gibbons vs. Ogden, Ibid., IX., 210; Bank of Hamilton vs. Dudley, Peters, II., 524; Chisholm vs. Georgia, Dallas, II., 419; Ware vs. Hilton, Ibid., III., 199.

2 See Mississippi vs. Johnson, Wallace, IV., 475, and Georgia vs. Stanton, Ibid., VI., 51.

3 That the courts actually take part in the formation of law cannot be questioned. They cannot, however, on this account, lay claim, as Pomeroy (pp. 66, 67) would have them do, to a share of the law-making power. The constitution expressly entrusts congress with "all" the law-making powers delegated in it and by it, and there can be no constitutional law-making power which is not created by the constitution. The judges are never authorized, where they find a gap in constitutional law, in customary law, or in statute law,

alone, must decide whether the means chosen by congress for the exercise of a constitutional power are "necessary and proper." The court has simply to decide in a given case whether the power which is claimed is constitutional, and whether the choice of the means selected is not denied by the constitution. In a word, the domain of the court is not politics but law, and this must control it in deciding questions of law. The other federal powers must, as Lincoln said in his inaugural address, give great moral weight to the court's decisions upon the constitutionality of laws and other governmental acts, so far as these decisions are not dicta. But except in the particular case at issue, the decisions have no political control of the coordinate powers. If this were granted, the people would have abdicated and have placed their fate in the hands of the court.

This has two consequences of far-reaching significance. In the first place, sufficient time may elapse before disputed questions of constitutional law come before the supreme court in such a way that it can deliver a judgment upon them, so that, meanwhile, the action of the other factors of the national government may create such a state of facts as to make it, from a political, and often even from a legal, standpoint, a very serious matter to declare the laws or actions in question to be unconstitutional. The supreme court would, in such a case, come to such a conclusion with the more difficulty, because to decide according to their own free will, i. e., to decide, as lawmakers, what the law shall be. Wherever, in such a case, they do by their judgments aid in the formation of law, it happens only in this way that they follow to their logical conclusion, and apply to the given case, provisions of constitutional, customary or statute law. The formation of law is therefore, in such a case, not to be considered as the creation of a new law. The law is already in existence, but it first assumes fixed form upon its application to a concrete case.

from the beginning it has made it a maxim that no law should be declared unconstitutional simply because there were arguments of a certain weight against its constitutionality, i. e., that the presumption should always be for instead of against the constitutionality of the acts of the other factors of the government.' But besides this, there are other disputed constitutional questions which, in their nature, can never be brought before the supreme court or decided by it. Moreover, violations of the constitution may happen, and those who are injured by

1 See Cooley, Constitutional Limitations, pp. 182-185, where the judicial decisions setting forth this principle are collected. The sentence quoted from a decision by Justice Washington is especially noteworthy. In the Sinking Fund Cases (99 U. S., Otto, IX., 7-18), it is said: "This declaration should never be made except in a clear case. Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule." James B. Thayer thinks that the whole emphasis should be laid upon the word "rational," and goes on to say: "But in determining the constitutionality of legislative action, a court is called upon to consider what, under the constitution, is the admissible view, rather than what is the right view of legislative power." The Nation, April 10, 1884. Upon the question of the unconstitutionality of laws, the following statements are of great significance: "The same statute may be in part constitutional, and in part unconstitutional, and if the parts are wholly independent of each other, that which is constitutional may stand, while that which is unconstitutional will be rejected. But if they are so mutually connected with, and dependent upon, each other as conditions, considerations, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all of the provisions which are thus dependent, conditional or connected, must fall with them." Hammond, I., 22, $63, where the judicial decisions upon this question are cited.