The American Commonwealth. Viscount James Bryce

acts are directed to be done and rules to be made by bodies which are in the position of agents, i.e., which have received from some superior authority a limited power of acting and of rulemaking, a power to be used only for certain purposes or under certain conditions. Where this power is duly exercised, the act or rule of the subordinate body has all the force of an act done or rule made by the superior authority, and is deemed to be made by it. And if the latter be a lawmaking body, the rule of the subordinate body is therefore also a law. But if the subordinate body attempts to transcend the power committed to it, and makes rules for other purposes or under other conditions than those specified by the superior authority, these rules are not law, but are null and void. Their validity depends on their being within the scope of the lawmaking power conferred by the superior authority, and as they have passed outside that scope they are invalid. They do not justify any act done under them forbidden by the ordinary law. They ought not to be obeyed or in any way regarded by the citizens, because they are not law.

      The same principle applies to acts done by an executive officer beyond the scope of his legal authority. In free countries an individual citizen is justified in disobeying the orders of a magistrate if he correctly thinks these orders to be in excess of the magistrate’s legal power, because in that case they are not really the orders of a magistrate, but of a private person affecting to act as a magistrate. In England, for instance, if a secretary of state, or a police constable, does any act which the citizen affected by it rightly deems unwarranted, the citizen may resist, by force if necessary, relying on the ordinary courts of the land to sustain him. This is a consequence of the English doctrine that all executive power is strictly limited by the law, and is indeed a cornerstone of English liberty.³ It is applied even as against the dominant branch of the legislature. If the House of Commons should act in excess of the power which the law and custom of Parliament has secured to it, a private individual may resist the officers of the House and the courts will protect him by directing him to be acquitted if he is prosecuted, or, if he is plaintiff in a civil action, by giving judgment in his favour.

      An obvious instance of the way in which rules or laws made by subordinate bodies are treated is afforded by the bye-laws made by an English railway company or municipal corporation under powers conferred by an act of Parliament. So long as these bye-laws are within the scope of the authority which the act of Parliament has given, they are good, i.e., they are laws, just as much as if enacted in the act. If they go beyond it, they are bad, that is to say, they bind nobody and cannot be enforced. If a railway company which has received power to make bye-laws imposing fines up to the amount of forty shillings, makes a bye-law punishing any person who enters or quits a train in motion with a fine of fifty shillings or a week’s imprisonment, that bye-law is invalid, that is to say, it is not law at all, and no magistrate can either imprison or impose a fine of fifty shillings on a person accused of contravening it. If a municipal corporation has been by statute empowered to enter into contracts for the letting of lands vested in it, and directed to make bye-laws, for the purpose of letting, which must provide, among other things, for the advertising of all lands intended to be let, and if it makes a bye-law in which no provision is made for advertising, and under that bye-law contracts for the letting of a piece of land, the letting made in pursuance of this bye-law is void, and conveys no title to the purchaser. All this is obvious to a lay as well as to a legal mind; and it is no less obvious that the question of the validity of the bye-law, and of what has been done under it, is one to be decided not by the municipal corporation or company, but by the courts of justice of the land.

      Now, in the United States the position of Congress may for this purpose be compared to that of an English municipal corporation or railway company. The supreme lawmaking power is the people, that is, the qualified voters, acting in a prescribed way. The people have by their supreme law, the Constitution, given to Congress a delegated and limited power of legislation. Every statute passed under that power conformably to the Constitution has all the authority of the Constitution behind it. Any statute passed which goes beyond that power is invalid, and incapable of enforcement. It is in fact not a statute at all, because Congress in passing it was not really a lawmaking body, but a mere group of private persons.

      Says Chief Justice Marshall, “The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited and to what purpose is that limitation committed to writing, if those limits may at any time be passed by those intended to be restrained? The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like any other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law. If the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.” There is of course this enormous difference between Congress and any subordinate lawmaking authority in England, that Congress is supreme within its proper sphere, the people having no higher permanent organ to override or repeal such statutes as Congress may pass within that sphere; whereas in England there exists in Parliament a constantly present supervising authority, which may at any moment cancel or modify what any subordinate body may have enacted, whether within or without the scope of its delegated powers. This is a momentous distinction. But it does not affect the special point which I desire to illustrate, viz., that a statute passed by Congress beyond the scope of its powers is of no more effect than a bye-law made ultra vires by an English municipality. There is no mystery so far; there is merely an application of the ordinary principles of the law of agency. But the question remains, How and by whom, in case of dispute, is the validity or invalidity of a statute to be determined?

      Such determination is to be effected by setting the statute side by side with the Constitution, and considering whether there is any discrepancy between them. Is the purpose of the statute one of the purposes mentioned or implied in the Constitution? Does it in pursuing that purpose contain anything which violates any clause of the Constitution? Sometimes this is a simple question, which an intelligent layman may answer. More frequently it is a difficult one, which needs not only the subtlety of the trained lawyer, but a knowledge of former cases which have thrown light on the same or a similar point. In any event it is an important question, whose solution ought to proceed from a weighty authority. It is a question of interpretation, that is, of determining the true meaning both of the superior law and of the inferior law, so as to discover whether they are inconsistent.

      Now the interpretation of laws belongs to courts of justice. A law implies a tribunal, not only in order to direct its enforcement against individuals, but to adjust it to the facts, i.e., to determine its precise meaning and apply that meaning to the circumstances of the particular case. The legislature, which can only speak generally, makes every law in reliance on this power of interpretation. It is therefore obvious that the question, whether a congressional statute offends against the Constitution, must be determined by the courts, not merely because it is a question of legal construction, but because there is nobody else to determine it. Congress cannot do so, because Congress is a party interested. If such a body as Congress were permitted to decide whether the acts it had passed were constitutional, it would of course decide in its own favour, and to allow it to decide would be to put the Constitution at its mercy. The president cannot, because he is not a lawyer, and he also may be personally interested. There remain only the courts, and these must be the national or federal courts, because no other courts can be relied on in such cases. So far again there is no mystery about the matter.

      Now, however, we arrive at a feature which complicates the facts, although it introduces no new principle. The United States is a federation of commonwealths, each of which has its own constitution and laws. The federal Constitution not only gives certain powers to Congress, as the national legislature, but recognizes certain powers in the states, in virtue whereof their respective peoples have enacted fundamental state laws (the state constitutions) and have enabled their respective legislatures to pass state statutes. However, as the nation takes precedence of the states, the federal Constitution, which is the supreme law of the land everywhere, and the statutes duly made by Congress under it, are preferred to all state constitutions and statutes; and if any conflict arise between them, the latter must give way. The same phenomenon therefore occurs as in the case of an inconsistency between the Constitution