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ties to the constitutional compact. It is an "agent," as the champions of the doctrine of state sovereignty, in opposition to their own theory of "parties," call it, but it is not, as they affirm, an agent of the states, but an agent of the people of the United States, and their exclusive agency for all their affairs as a commonwealth. It is as little master as it is servant of the states; but, as the general delegate of the master of the commonwealth for the commonwealth, it alone has authority within the sphere allotted to it. The Union is through the constitution a legal state. If the constituent members of a state had each for itself the power of ultimate decision as to what is law, this would be a negation in principle of the idea of a legal state. The commonwealth has given to the federal government its own sphere, and, therefore, the parts of the commonwealth cannot be judges as to whether it has overstepped its limits.1 The opinion of the commonwealth can find lawful expression only in the manner provided by the constitution, i. e., through the constitutional organs of the commonwealth in the discharge of their constitutional functions.

On the other hand, it has been claimed that the federal government could break through the paper barriers of the constitution at every point and make itself absolute master, if it alone must decide upon the constitutionality of its acts. In theory, this conclusion cannot be questioned, but in practice it is, in substance, an utterly false conclusion. The constitution avoids this danger in a practical way by the organization of that whole apparatus

1 Story, I., p. 256, in his discussion of this question, recalls the fact that even under the articles of confederation, according to an unanimous vote of congress, the states were not authorized to put their own construction upon treaties, because treaties were made not by them but by congress.

of government which the Americans ordinarily call "a system of checks and balances." The law-making power of congress is under the direct control of the conditional. veto right of the president. The members of both houses of congress are directly or indirectly elected by the people, and not at long intervals. The people are therefore always able to prevent an unconstitutional misuse of the law-making power by intrusting it to persons who will, with greater faith, fulfill their first duty of keeping the constitution in view, in their law-making, as the supreme and absolutely binding law of the land. Intentional and preconcerted usurpations are therefore possible only with the actual sanction of the people from the very beginning. This, however, does not give a sufficient protection against systematic oppression of minorities, and still less does it ensure to individuals that their constitutional rights shall not be interfered with and trenched upon in good faith through unconstitutional laws or acts of the federal powers. But the framers of the constitution intended to transform the old Union, not only into a state capable of life, but into such a state founded upon law, and they therefore could not forget to endow it expressly with the majesty of law, and that in such a way that the law should be as fully protected under all circumstances as it can be in the nature of man and of human institutions.

The third article relates to the "judicial power,” i. e., to the judicial majesty of the United States, creates the supreme court of the United States as the highest organ of this power, authorizes congress to create other federal courts, and declares that "the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority," that is, under

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.1 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

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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

1Thus, 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

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, İV., 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,

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