tion is in America confided not only to the Supreme Court, but to every judge throughout the land."

"The power, moreover, of the courts which maintains the articles of the Constitution as the law of the land," quoting Dicey further, "and thereby keeps each authority within its proper sphere, is exerted with an ease and regularity which has astounded and perplexed Continental critics. The explanation is that while the judges of the United States control the action of the Constitution, they nevertheless perform purely judicial functions, since they never decide anything but the cases before them."

That is, they do not have the initiative to interfere. 1 A "case" must be brought before they can act. All the decisions of the courts have disposed, not of theoretic or academic questions, but of actual and weighty controversies between men with respect to life, liberty, or property. One party has claimed a right under the Constitution, or under an act of Congress, or under a treaty. The other party has contested the claim. The court has decided the contention. Except where a case is thus brought for judgment before a court by contesting parties, the judiciary has no power to render any decision or to make any pronouncement whatsoever. Both the Legislative Department and the Executive Department have vast initiative—the Judicial Department has none at all.

The Constitution of Australia is declared, like ours, to be the supreme law of the land, and that "it shall be binding on the courts, judges, and the peoples of every State and of every part of the Commonwealth, notwithstanding anything in the law of any State." The High Court of Australia, like our Supreme Court, and like the Supreme Court of Canada, declares invalid a legislative act in conflict with the Constitution.

The Senators and Representatives before mentioned, and the Members of the several State Legis

latures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by. Oath or Affirmation, to support this Constitution; 135

135 In the oath taken by a State officer he first swears to uphold and defend the Constitution and the laws of the United States, and next he swears to support those of his State.

The first oath prescribed by Congress (June 1, 1789) was simply to support the Constitution, and it contained no invocation to God. During the Civil War (July 2, 1862) the oath was changed by Congress to what was called the "iron-clad oath", and the affiant was required. to say that he had not borne arms against the United States or given aid or encouragement to hostile forces, or held office under hostile authority; and he was made to declare that he would support and defend the Constitution against all enemies, that he took the oath without mental reservation or evasion, and that he would faithfully discharge the duties of the office, "so help me God." So far as this Act prevented a man from resuming his practice as an attorney before the Supreme Court after he had been pardoned by the President for holding office under the Confederate States it was held to be unconstitutional because ex post facto, imposing a punishment which was not prescribed at the time of the misconduct. It is operated as a bill of attainder because a person was, without trial, adjudged guilty of a crime and sentenced to exclusion from civil rights. In 1868 Congress made a modification of the foregoing oath for those who had "participated in the late rebellion and from whom all legal disabilities" had been "removed by Act of Congress.' "This is the last and closing clause of the Constitution," said the Supreme Court (1858), disposing of a case in which the Supreme Court of a State had undertaken to

release a man in the custody of a United States marshal who was holding him under a warrant issued by a United States District Court in pursuance of an act of Congress, "and inserted when the whole frame of government, with the powers hereinbefore specified, had been adopted by the Convention; and it was in that form, and with these powers, that the Constitution was submitted to the people of the several States, for their consideration and decision. . . . In the emphatic language of the pledge required, it is to support this Constitution. And no power is more clearly conferred by the Constitution and laws of the United States than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws."

Writing of the approaching civil war between Charles I and Parliament, in which the House of Lords would probably favor the King, the historian Green ("English People," Sec. 1036) portrayed in a sentence the dire consequences of a lack of clearly defined powers of government and of the binding of all officers of government to follow absolutely the written charter:

"The legal antiquarians of the older constitutional school stood helpless before such a conflict of coördinate powers, a conflict for which no provision had been made by the law, and on which precedents threw only a doubtful and conflicting light."

but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.136

136 By the oaths prescribed by some of the States the person entering office was required to express belief in "one God, the creator of the universe, the rewarder of the good and the punisher of the wicked"; or to declare belief in the "divine inspiration" of the Scriptures, or "faith in God the Father and in Jesus Christ, His only Son", and

so on. Such oaths excluded from office those whose belief prevented them from so swearing, and they were consequently the "religious test" forbidden by this clause of the Constitution. This clause was added by motion in the Constitutional Convention to the language requiring an oath by all officials, both National and State, and its adoption was unanimous. The clause, however, is not a prohibition upon the States. But most if not all of the constitutions of the States have a like provision.

This subject comes up again in another form in the First Amendment, which forbids (Note 141) Congress (not the States) to make any "law respecting an establishment of religion or prohibiting the free exercise thereof." The First Amendment also, or the substance of it, is in the constitutions of the States, though some were slow in adopting it.

ARTICLE VII

The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.137

137 As the Articles of Confederation (Art. XIII) provided that no alteration should ever be made in them unless "agreed to in a Congress of the United States and be afterwards confirmed by the legislature of every State", this complete superseding of the Articles by the action, not of "a congress", but of a Constitutional Convention, and the ratifying of that action by nine States instead of every one of the thirteen, has been described as revolutionary. However, the people ratified the Constitution as prepared, and it was within their power to make any change that seemed desirable. It has been seen (Note 129) that the provision requiring unanimity of State action was in practice destructive of government. It was the belief in the Constitutional Convention that the new instrument could not at first secure the approval of every State. That was correct. The Constitution went into operation with George Washington as President and a Congress of two Houses sitting before North Carolina and Rhode Island ratified it. "To have required the unanimous ratification of the thirteen States," wrote Madison in “The Federalist", . . . "would have marked a want of foresight in the Convention which our own experience would have rendered inexcusable." There was much debate over a proposal that the Constitution be submitted for ratification to the legislatures of the States instead of to "conventions", but the proposal was rejected. Some feared that