The American Commonwealth. Viscount James Bryce

corporations generally; regulations as to the salaries of officials, the quorum of courts sitting in banco, the length of time for appealing, the method of changing the venue, the publication of judicial reports; detailed arrangements for school boards and school taxation (with rules regarding the separation of white and black children in schools), for a department of agriculture, a canal board, or a labour bureau; we find a prohibition of lotteries, of polygamy, of bribery, of lobbying, of the granting of liquor licenses, of usurious interest on money, an abolition of the distinction between sealed and unsealed instruments, a declaration of the extent of a mechanic’s lien for work done. We even find the method prescribed in which stationery and coals for the use of the legislature shall be contracted for, and provisions for fixing the rates which may be charged for the storage of corn in warehouses. The framers of these more recent constitutions have in fact neither wished nor cared to draw a line of distinction between what is proper for a constitution and what ought to be left to be dealt with by the state legislature. And, in the case of three-fourths at least of the states, no such distinction now, in fact, exists.

      How is this confusion to be explained? Four reasons may be suggested.

      The Americans, like the English, have no love for scientific arrangement. Although the constitutions have been drafted by lawyers, and sometimes by the best lawyers of each state, logical classification and discrimination have not been sought after.

      The people found the enactment of a new constitution a convenient opportunity for enunciating doctrines they valued and carrying through reforms they desired. It was a simpler and quicker method than waiting for legislative action, so, when there was a popular demand for the establishment of an institution, or for some legal change, this was shovelled into the new constitution and enacted accordingly.

      The peoples of the states have come to distrust their respective legislatures. Hence they desire not only to do a thing forthwith and in their own way rather than leave it to the chance of legislative action, but to narrow as far as they conveniently can (and sometimes farther) the sphere of the legislature.

      There is an unmistakable wish in the minds of the people to act directly rather than through their representatives in legislation. The same conscious relish for power which leads some democracies to make their representatives mere delegates, finds a further development in passing by the representatives, and setting the people itself to make and repeal laws.

      Those who have read the chapters describing the growth and expansion of the federal Constitution, will naturally ask how far the remarks there made apply to the constitutions of the several states.

      These instruments have less capacity for expansion, whether by interpretation or by usage, than the Constitution of the United States: first, because they are more easily, and therefore more frequently, amended or recast; secondly, because they are far longer, and go into much more minute detail. The federal Constitution is so brief and general that custom must fill up what it has left untouched, and judicial construction evolve the application of its terms to cases they do not expressly deal with. But the later state constitutions are so full and precise that they need little in the way of expansive construction, and leave comparatively little room for the action of custom.

      The rules of interpretation are in the main the same as those applied to the federal Constitution. One important difference must, however, be noted, springing from the different character of the two governments. The national government is an artificial creation, with no powers except those conferred by the instrument which created it. A state government is a natural growth, which prima facie possesses all the powers incident to any government whatever. Hence, if the question arises whether a state legislature can pass a law on a given subject, the presumption is that it can do so: and positive grounds must be adduced to prove that it cannot. It may be restrained by some inhibition either in the federal Constitution, or in the constitution of its own state. But such inhibition must be affirmatively shown to have been imposed, or, to put the same point in other words, a state constitution is held to be, not a document conferring defined and specified powers on the legislature, but one regulating and limiting that general authority which the representatives of the people enjoy ipso jure by their organization into a legislative body.

      “It has never been questioned that the American legislatures have the same unlimited power in regard to legislation which resides in the British Parliament, except where they are restrained by written Constitutions. That must be conceded to be a fundamental principle in the political organization of the American States. We cannot well comprehend how, upon principle, it could be otherwise. The people must, of course, possess all legislative power originally. They have committed this in the most general and unlimited manner to the several State legislatures, saving only such restrictions as are imposed by the Constitution of the United States or of the particular State in question.” ²⁴

      “The people, in framing the Constitution, committed to the legislature the whole law-making powers of the State which they did not expressly or impliedly withhold. Plenary power in the legislature, for all purposes of civil government, is the rule. A prohibition to exercise a particular power is an exception.” ²⁵

      It must not, however, be supposed from these dicta that even if the states were independent commonwealths, the federal government having disappeared, their legislatures would enjoy anything approaching the omnipotence of the British Parliament, “whose power and jurisdiction is,” says Sir Edward Coke, “so transcendent and absolute that it cannot be confined, either for persons or causes, within any bounds.” “All mischiefs and grievances,” adds Blackstone, “operations and remedies that transcend the ordinary course of the laws are within the reach of this extraordinary tribunal.” Parliament being absolutely sovereign, can command, or extinguish and swallow up the executive and the judiciary, appropriating to itself their functions. But in America, a legislature is a legislature and nothing more. The same instrument which creates it creates also the executive governor and the judges. They hold by a title as good as its own. If the legislature should pass a law depriving the governor of an executive function conferred by the constitution, that law would be void. If the legislature attempted to interfere with the jurisdiction of the courts, their action would be even more palpably illegal and ineffectual.²⁶

      The executive and legislative departments of a state government have of course the right and duty of acting in the first instance on their view of the meaning of the constitution. But the ultimate expounder of that meaning is the judiciary; and when the courts of a state have solemnly declared the true construction of any provision of the constitution, all persons are bound to regulate their conduct accordingly. As was observed in considering the functions of the federal judiciary (Chapter 23), this authority of the American courts is not in the nature of a political or discretionary power vested in them; it is a necessary consequence of the existence of a fundamental law superior to any statute which the legislature may enact, or to any right which a governor may conceive himself to possess.²⁷ To quote the words of an American decision:

      “In exercising this high authority the judges claim no judicial supremacy; they are only the administrators of the public will. If an Act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the Act is forbidden by the Constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law.”

      It is a well-established rule that the judges will always lean in favour of the validity of a legislative act; that if there be a reasonable doubt as to the constitutionality of a statute they will solve that doubt in favour of the statute; that where the legislature has been left a discretion they will assume the discretion to have been wisely exercised; that where the construction of a statute is doubtful, they will adopt such construction as will harmonize with the constitution, and enable it to take effect. So it has been well observed that a man might with perfect consistency argue as a member of a legislature against a bill on the ground that it is unconstitutional, and after having been appointed a judge, might in his judicial capacity sustain its constitutionality. Judges must not inquire into the motives of the legislature, nor refuse to apply an act because they may suspect that it was obtained by fraud or corruption, still less because they hold it to be opposed to justice and sound policy. “A court cannot declare a statute