LECTURE VIII. - The Duty of the Judiciary to declare an Unconstitutional Statute invalid. - Effect on the Popular Mind. - - The People of the United States Constitutionalists.-The Sovereignty of the American People limited. - Political Questions beyond the Scope of Judicial Power. - Whether a State Government is Legitimate and Republican must be determined by the Congress and President. The Legislative and Executive Departments of the State and National Governments cannot be restrained by an Injunction. - Protective Tariff. - The Courts cannot redress an Abuse of the Power of Taxation. - English Courts may declare an Act done by the King or the House of Commons, invalid. — The American Courts have a like Power as to Acts done by the Government as a whole. The King can do no Wrong, but his Ministers may be held responsible as Trespassers for obeying his Commands. — Application of this Principle to the Officers and Agents of the State and National Governments. - No such Redress can be obtained in France. French Droit Administratif. — Tendency to adopt it here. Ir is the exalted function of the Supreme Court of the United States to compose the differences arising out of the complex relations of the States and the General Government, and define how far the powers of each extend and what is the measure of their authority over the people. Although this feature of our government was in great measure new, it has more than any other fulfilled the expectations of the statesmen who devised the entire plan. Viewed with a jealous eye by the party which soon became predominant and maintained its ascendency for more than fifty years, thwarted and superciliously regarded by Jackson, and brought into conflict with the State tribunals whose decisions were overruled, it yet acquired a hold on the confidence and affection of the people which remains unshaken, and drew forth the encomiums of De Tocqueville in his admirable treatise on Democracy in the United States.1 1 La Démocratie en Amérique, vol. i. ch. vi. pp. 167, 171, 172 (Paris, 1836). Here, as elsewhere, we should not forget that the success. of our institutions was largely due, in the earlier stages of our national existence, to the men by whom the various. departments of the government were administered. ChiefJustice Marshall brought to the discharge of his high office moderation, sagacity, firmness, a large experience of men and things, a clear view of what is practicable as well as of what is theoretically desirable and just, -in short, the qualities of the statesman not less than those of the judge, —and had, moreover, the judicial eloquence which gives abstract principles. form and brings them home to the common mind. Thrown into the crucible of his capacious mind, the numerous and intricate problems growing out of the new order of things were cleared from the fumes and dross of party politics, and resolved in judgments lucid as Mansfield's, but having a wider range, and rising to the height of political considerations which may be discussed in Parliament, but are seldom open to an English court. Like all that is truly great, their greatness became more apparent as time silenced the passions and prejudices of the hour, and disclosed their true proportions; and they are landmarks for the public men of the present and future generations. The civil war set its seal on their truth as parts of our political system by manifesting the resolve of the American people to carry them into effect at whatever cost of blood and treasure; and they will not again be controverted while the Republic endures. Erecting the judiciary into a department of the govern ment which is the sole judge of the extent of its powers, while authorized to declare the acts of the other departments invalid, has been criticised as without a precedent in public law, and harmful in imposing an undue restraint on legislation; but it will appear on examination to be a necessary result of the application of established principles to a written Constitution like that of the United States.1 When two different and inconsistent statutes bear on the same subject-matter, the courts must necessarily decide which shall prevail; and although the preference is ordinarily given 1 Dicey, Law of the Constitution, 145 (London, 1885). UNCONSTITUTIONAL STATUTE INVALID. 121 to the last, as the conclusion finally reached by the legisla ture, the rule does not apply when the first in date proceeds from a superior power, and the second from one of lower grade. To cite an analogy which comes near home, had an issue been joined between a colonial statute and an anterior act of Parliament in force on this side of the Atlantic, the decision must obviously have been in favor of the latter. Now, the relation of the Constitution is that of such a statute, as being the standing exponent of the national will, which in creating the government set bounds to its powers that cannot legally be overpassed. It is as much a part of every statute as a letter-of-attorney is of the deed executed under the authority which it confers, and cannot be overlooked by the judges consistently with the plain intent of the instrument and the doctrines of the common law.1 That no such power can be exercised in England, arises not from a difference of principle, but from the structure of a government which is in this regard unlike our own. The function of the judiciary is every where to interpret or apply, and not to make the law; and if the customary or common law is plastic, and may be moulded to the needs of an advancing civilization, the courts cannot question or set aside an act of Parliament as contrary to the principles of a Constitution which has in a great measure been formed by Parliament, and may be altered if it thinks proper.2 It has been said that a sovereign cannot by any act or declaration part irrevocably with his powers or render them less effectual as a means of government. If this were true generally, it would not hold good in this country, where power is distributed among the United States, the several States, and the people. Government under our system is not absolute, but a delegation or agency created for certain purposes, and must keep within the limits of the grant. As Mr. Webster observed in arguing the case of Luther v. 1 Dicey, Law of the Constitution, 146; 5 Elliott's Madison, 355, 356, (Phila., 1876); 4 Id. 19, 100, 208, 214. 2 De Tocqueville, Democracy in America, 126 (Cambridge, 1862). Borden: "The people may not only limit their government, they may and often do limit themselves; they secure themselves against sudden changes by mere majorities. The fifth article of the Constitution of the United States is a clear proof of this." Mr. Whipple remarked in the same case that under this article, as population was then distributed, "sixteen millions of people in the larger States might be in favor of amending the Constitution, but their will might be thwarted by four millions in the smaller States. What then becomes of the alleged American doctrine of popular sovereignty acting by majorities?" Whatever may be the inconvenience of placing the legislature under the tutelage of the judiciary, as regards the extent and nature of their powers, it has the merit of inculcating a respect for law in a sense in which it was never taught before. Law has generally been regarded as a rule laid down for the guidance of the subject; and that, from the nature of the case, cannot be binding on the departments of the government which are the source of law and may alter or dispense with it at pleasure. The persistent and successful efforts of the English people to check the power of the Crown ended in establishing the supremacy of Parliament, which, though till recently conservative, is rapidly becoming a merely popular assembly, and may deal with the ownership of land in England as it has done in Ireland, impair the obligation of contracts, or carry the theory of the socialist into practice in defiance of political ecomony. Such absolute power cannot safely be lodged in a single hand; but it is easier to limit the authority of a king than to set bounds to the sovereignty of the people or of a government acting in their name. The founders of the State and federal governments met the difficulty by reducing the principles of Magna Charta and the Petition of Right to rules which were embodied in the Constitution and became a restraint alike on the legislature and on the executive, and unalterable even by a majority of the people, unless three fourths of the States concur. The effect was to subordinate 17 Howard, 131. 66 AMERICAN PEOPLE CONSTITUTIONALISTS." 123 the popular will, as declared or perverted by the legislature, to the settled national purpose that life, liberty, and property shall be as secure from deprivation by Congress, the State legislatures, or the people of the several States acting through conventions, as they are in England against the king. Statutes enacted by the States or passed by Congress may accordingly be subjected to a judicial scrutiny at the suit of an individual, and set aside if found to be at variance with the higher and organic law. The conviction that power is subordinate to right, is thus brought home to the popular heart with an assurance that could be given in no other way, and a lesson taught which is of the utmost value in the political education of the American people. To it and to the long training of our forefathers in the jury-box we may ascribe the judicial temper that renders it possible for the people of the United States to be sovereign, and yet not despotic.1 "The main reason why the United States have carried out the federal system with unequalled success is that the people of the Union are more thoroughly imbued with Constitutional ideas than any other existing nation. Constitutional questions arising out of either the Constitutions of the several States or the articles of the Federal Constitution are of daily occurrence, and constantly occupy the courts. Hence the citizens become a people of constitutionalists; and matters which excite the strongest possible feeling, as, for instance, the right of Chinese to settle in the country, are determined by the Judicial Bench, and the decision of the Bench is acquiesced in by the people. This acquiescence or submission is due to the Americans inheriting the legal notions of the common law; that is, of the most legal system of law, if the expression may be allowed, in the world." Dicey, Law of the Constitution, 166. If this remark be just, what madness it is to believe that the immigration of millions of Chinese who have had no such training, and whose traditions moreover are of an opposite kind, is compatible with the harmonious and successful working of the most complicated federal system that the world has known! The weight of these considerations is increased if, as was asserted by the House Committee for Foreign Affairs in 1884, "the notorious capabilities of the lower classes of Chinese for perjury has flooded the Federal courts with cases which, being quasi-criminal, are entitled to precedence over more important business; and we agree with Mr. Justice Field that the Chinese cannot assimilate with our people, but must continue a distinct race amongst us, with institutions, customs, and laws entirely variant from our own.'" Chew Heong v. The United States, 112 U. S. |