The American Commonwealth. Viscount James Bryce

statute. Where it is shown that a state constitution or statute infringes either the federal Constitution or a federal (i.e., congressional) statute, the state constitution or statute must be held and declared invalid. And this declaration must, of course, proceed from the courts, nor solely from the federal courts; because when a state court decides against its own statutes or constitution in favour of a federal law, its decision is final.

      It will be observed that in all this there is no conflict between the law courts and any legislative body. The conflict is between different kinds of laws. The duty of the judges is as strictly confined to the interpretation of the laws cited to them as it is in England or France; and the only difference is that in America there are laws of four different degrees of authority, whereas in England all laws (excluding mere bye-laws, Privy Council ordinances, etc.) are equal because all proceed from Parliament. These four kinds of American laws are:

      

      I. The Federal Constitution

      II. Federal statutes

      III. State constitutions

      IV. State statutes⁴

      The American law court therefore does not itself enter on any conflict with the legislature. It merely secures to each kind of law its due authority. It does not even preside over a conflict and decide it, for the relative strength of each kind of law has been settled already. All the court does is to point out that a conflict exists between two laws of different degrees of authority. Then the question is at an end, for the weaker law is extinct, or, to put the point more exactly, a flaw has been indicated which makes the world see that if the view of the court be correct, the law is in fact null. The court decides nothing but the case before it; and anyone may, if he thinks the court wrong, bring up a fresh case raising again the question whether the law is valid.⁵

      This is the abstract statement of the matter; but there is also an historical one. Many of the American colonies received charters from the British Crown, which created or recognized colonial assemblies, and endowed these with certain powers of making laws for the colony. Such powers were of course limited, partly by the charter, partly by usage, and were subject to the superior authority of the Crown or of the British Parliament. Questions sometimes arose in colonial days whether the statutes made by these assemblies were in excess of the powers conferred by the charter; and if the statutes were found to be in excess, they were held invalid by the courts, that is to say, in the first instance, by the colonial courts, or, if the matter was carried to England, by the Privy Council.⁶

      

      When the thirteen American colonies asserted their independence in 1776, they replaced these old charters by new constitutions,⁷ and by these constitutions entrusted their respective legislative assemblies with certain specified and limited legislative powers. The same question was then liable to recur with regard to a statute passed by one of these assemblies. If such a statute was in excess of the power which the state constitution conferred on the state legislature, or in any way transgressed the provisions of that constitution, it was invalid, and acts done under it were void. The question, like any other question of law, came for decision before the courts of the state. Thus, in 1786, the supreme court of Rhode Island held that a statute of the legislature which purported to make a penalty collectible on summary conviction, without trial by jury, gave the court no jurisdiction, i.e., was invalid, the colonial charter, which was then still in force as the constitution of the state, having secured the right of trial by jury in all cases.⁸ When the Constitution of the United States came into operation in 1789, and was declared to be paramount to all state constitutions and state statutes, no new principle was introduced; there was merely a new application, as between the nation and the states, of the old doctrine that a subordinate and limited legislature cannot pass beyond the limits fixed for it. It was clear, on general principles, that a state law incompatible with a federal law must give way; the only question was: What courts are to pronounce upon the question whether such incompatibility exists? Who is to decide whether or not the authority given to Congress has been exceeded, and whether or not the state law contravenes the federal Constitution or a federal statute?

      In 1787 the only then-existing courts were the state courts. If a case coming before them raised the point whether a state constitution or statute was inconsistent with the federal Constitution or a statute of Congress, it was their duty to decide it, like any other point of law. But their decision could not safely be accepted as final, because, being themselves the offspring of, and amenable to, the state governments, they would naturally tend to uphold state laws against the federal Constitution or statutes. Hence it became necessary to set up courts created by the central federal authority and coextensive with it—that is to say, those federal courts which have been already described. The matter seems complicated, because we have to consider not only the superiority of the federal Constitution to the federal legislature, but also the superiority of both the federal Constitution and federal statutes to all state laws. But the principle is the same and equally simple in both sets of cases. Both are merely instances of the doctrine, that a lawmaking body must not exceed its powers, and that when it has attempted to exceed its powers, its so-called statutes are not laws at all, and cannot be enforced.

      In America the supreme lawmaking power resides in the people. Whatever they enact is universally binding. All other lawmaking bodies are subordinate, and the enactments of such bodies must conform to the supreme law, else they will perish at its touch, as a fishing smack goes down before an ocean steamer. And these subordinate enactments, if at variance with the supreme law, are invalid from the first, although their invalidity may remain for years unnoticed or unproved. It can be proved only by the decision of a court in a case which raises the point for determination. The phenomenon cannot arise in a country whose legislature is omnipotent, but naturally⁹ arises wherever we find a legislature limited by a superior authority, such as a constitution which the legislature cannot alter.

      In England the judges interpret acts of Parliament exactly as American judges interpret statutes coming before them. If they find an act conflicting with a decided case, they prefer the act to the case, as being of higher authority. As between two apparently conflicting acts, they prefer the later, because it is the last expression of the mind of Parliament. If they misinterpret the mind of Parliament, i.e., if they construe an act in a sense which Parliament may not have intended, their decision is nevertheless valid, and will be followed by other courts of the same rank until Parliament speaks its mind again by another act. The only difference between their position and that of their American brethren is that they have never to distinguish between the authority of one enactment and of another, otherwise than by looking to the date, and that they therefore need never to inquire whether an act of Parliament was invalid when first passed. Invalid it could not have been, because Parliament is omnipotent, and Parliament is omnipotent because Parliament is deemed to be the people. Parliament is not a body with delegated or limited authority. The whole fulness of popular power dwells in it. The whole nation is supposed to be present within its walls.¹⁰ Its will is law; or, as Dante says in a famous line, “its will is power.”

      There is a story told of an intelligent Englishman who, having heard that the Supreme Federal Court was created to protect the Constitution, and had authority given it to annul bad laws, spent two days in hunting up and down the federal Constitution for the provisions he had been told to admire. No wonder he did not find them, for there is not a word in the Constitution on the subject. The powers of the federal courts are the same as those of all other courts in civilized countries, or rather they differ from those of other courts by defect and not by excess, being limited to certain classes of cases. The so-called “power of annulling an unconstitutional statute” is a duty rather than a power, and a duty incumbent on the humblest state court when a case raising the point comes before it no less than on the Supreme Federal Court at Washington. When therefore people talk, as they sometimes do, even in the United States, of the Supreme Court as “the guardian of the Constitution,” they mean nothing more than that it is the final court of appeal, before which suits involving constitutional questions may be brought up by the parties for decision. In so far the phrase is legitimate. But the functions of the Supreme Court are the same in kind as those of all other courts, state as well as federal. Its duty and theirs is simply to declare and apply the law; and where