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 judg ment 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.

them cannot, whether states or individuals, obtain justice through the courts. When the wrongs suffered are political in their origin, the remedies must be sought in a political way. Of course, they can frequently be obtained only indirectly, and can simply prevent further injustice. They cannot give satisfaction for the wrong already done. Yet it does not by any means follow from this that the sovereign states are authorized "to interpose," as the state's-rights school phrases it. In these cases the different factors of the federal government must themselves decide ultimately upon the extent of their constitutional powers. If each state had the right, so far as its interests were in question, to decide on such a point, the federal government would cease to be a government, and anarchy would become the supreme law of the Union. And so the argument that the president, and especially congress, if withdrawn from judicial control, can bend the constitution to their usurping wills, is of no avail. It is a fundamental principle, not only of politics, but of constitutional law, that the possibility of the misuse of a power is not a proof of the non-existence of the power.

1 So far as the supreme court is concerned, it is a significant fact that it can be appealed to only in certain cases specified in the constitution, but congress is to decide in which of these cases there shall be a right to appeal. In one case, in which the question of the constitutionality of the reconstruction laws could be raised only by an appeal, congress took away from the supreme court the right to take cognizance of the case, and this, too, after the appeal had already been taken. The reason for this was, of course, that congress thought it undesirable to have a decision of the supreme court. See McCardle's Case, Wallace, VII., 506.

ORGANIZATION OF THE FEDERAL GOVERNMENT.

The articles of con

20. THE THREE DEPARTMENTS. federation preserved the actual condition of affairs brought about by the Revolution, and entrusted the entire business of the federation to one single organ. On the other hand, the constitution established three departments. These together constitute the government. In spoken and written discussions of this change, Montesquieu's doctrine of the division of powers was mainly relied upon. But the type presented by the English constitution had already had much greater influence. Yet the lessons derived from the country's own sad experience were decisive. And therefore the authors of the constitution did not seek to copy the English pattern exactly. Much less did they pursue the principle they recognized with stubborn doctrinairism and short-sightedness to its logical consequences. The three governmental factors were congress, the president, and the supreme court. They were endowed with the legislative, executive and judicial powers. But while their respective jurisdictions are sufficiently defined as between themselves, these jurisdictions by no means completely coincide with these three forms of political action. They intersect each other in manifold ways, and often the authoritative will works its ends only by their co-operation. The three departments stand side by side, but are not, as is frequently asserted, independent of one another. This is so little the case that Pomeroy (p. 89) rightly says: "Each is so completely dependent on the others that without them it could do practically nothing." That this was so arranged with full intention appears from the Federalist (No. 48): "Unless these departments be so far connected and blended as to give to each a constitutional control over

the others, the degree of separation which the maxim requires as essential to a free government can never, in practice, be duly maintained." In the organization of the government each department was given a constitutional control of the other two. Hence there can be no superiority or inferiority among them. It is, moreover, a fundamental principle of the constitution that the three factors of government are in complete co-ordination,- co-ordinate, but not of equal power. In this respect the constitution put them on an entirely different footing, and the actual development of circumstances has very considerably increased this original difference. For that difference has its only source in the nature of things, i. e., in the nature of the functions with which they are entrusted. In the political contests of the past-sometimes impliedly, sometimes expressly-congress has repeatedly claimed, and at least once the president' has claimed, a certain superior authority. Both rested the claim upon being in a higher degree than the other the representative of the "people," the source of all power. Of such a difference the constitution knows naught. Even though it existed, the co-ordination of the governmental factors would be absolutely untouched, as each of them indubitably possesses only the powers delegated to it by the constitution. Apart from this, moreover, the claim would be untenable, because the condition precedent of the argument in support of the claim does not exist. The people of the United States, as a unified, organized body, never appear in the arena of political action. Even where the people act most directly, they always do so through their state organizations. None of the factors of government is, therefore, called into life in such a way as to justify it in designating itself as a direct representative

1 Andrew Jackson.