The American Commonwealth. Viscount James Bryce

be it a state court of first instance, or the federal court of last instance, finds a law of lower authority clashing with a law of higher authority, it must reject the former, as being really no law, and enforce the latter.

      It is therefore no mere technicality to point out that the American judges do not, as Europeans are apt to say, “control the legislature,” but simply interpret the law. The word “control” is misleading, because it implies that the person or body of whom it is used possesses and exerts discretionary personal will. Now the American judges have no discretionary will in the matter any more than has an English court when it interprets an act ofy Parliament. The will that prevails is the will of the people, expressed in the Constitution which they have enacted. All that the judges have to do is to discover from the enactments before them what the will of the people is, and apply that will to the facts of a given case. The more general or ambiguous the language which the people have used, so much the more difficult is the task of interpretation, so much greater the need for ability and integrity in the judges. But the task is always the same in its nature. The judges have no concern with the motives or the results of an enactment, otherwise than as these may throw light on the sense in which the enacting authority intended it. It would be a breach of duty for them to express, I might almost say a breach of duty to entertain, an opinion on its policy except so far as its policy explains its meaning. They may think a statute excellent in purpose and working, but if they cannot find in the Constitution a power for Congress to pass it, they must brush it aside as invalid. They may deem another statute pernicious, but if it is within the powers of Congress, they must enforce it. To construe the law, that is, to elucidate the will of the people as supreme lawgiver, is the beginning and end of their duty. And if it be suggested that they may overstep their duty, and may, seeking to make themselves not the exponents but the masters of the Constitution, twist and pervert it to suit their own political views, the answer is that such an exercise of judicial will would rouse the distrust and displeasure of the nation, and might, if persisted in, provoke resistance to the law as laid down by the court, possibly an onslaught upon the court itself.

      To insist upon the fact that the judiciary of the United States are not masters of the Constitution but merely its interpreters is not to minimize the importance of their functions, but to indicate their true nature. The importance of those functions can hardly be exaggerated. It arises from two facts. One is that as the Constitution cannot easily be changed, a bad decision on its meaning, i.e., a decision which the general opinion of the profession condemns, may go uncorrected. In England, if a court has construed a statute in a way unintended or unexpected, Parliament can set things right next session by amending the statute, and so prevent future decisions to the same effect. But American history shows only one instance in which an unwelcome decision on the meaning of the Constitution has been thus dealt with, viz., the decision, that a state could be sued by a private citizen,¹¹ which led to the Eleventh Amendment, whereby it was declared that the Constitution should not cover a case which the court had held it did cover.

      The other fact which makes the function of an American judge so momentous is the brevity, the laudable brevity, of the Constitution. The words of that instrument are general, laying down a few large principles. The cases which will arise as to the construction of these general words cannot be foreseen till they arise. When they do arise the generality of the words leaves open to the interpreting judges a far wider field than is afforded by ordinary statutes which, since they treat of one particular subject, contain enactments comparatively minute and precise. Hence, although the duty of a court is only to interpret, the considerations affecting interpretation are more numerous than in the case of ordinary statutes, more delicate, larger in their reach and scope. They sometimes need the exercise not merely of legal acumen and judicial fairness, but of a comprehension of the nature and methods of government which one does not demand from the European judge who walks in the narrow path traced for him by ordinary statutes. It is therefore hardly an exaggeration to say that the American Constitution as it now stands, with the mass of fringing decisions which explain it, is a far more complete and finished instrument than it was when it came fire-new from the hands of the Convention. It is not merely their work but the work of the judges, and most of all of one man, the great Chief Justice Marshall.

      The march of democracy in England has disposed some English political writers of the very school which in the last generation pointed to America as a terrible example, now to discover that her republic possesses elements of stability wanting in the monarchy of the mother country. They lament that England should have no supreme court. Some have even suggested that England should create one. They do not seem to perceive that the dangers they discern arise not from the want of a court but from the omnipotence of the British Parliament. They ask for a court to guard the British Constitution, forgetting that Britain has no constitution, in the American sense, and never had one, except for a short space under Oliver Cromwell. The strongest court that might be set up in England could effect nothing so long as Parliament retains its power to change every part of the law, including all the rules and doctrines that are called constitutional. If Parliament were to lose that power there would be no need to create a supreme court, because the existing judges of the land would necessarily discharge the very functions which American judges now discharge. If Parliament were to be split up into four parliaments for England, Scotland, Ireland, and Wales, and a new federal assembly were to be established with limited legislative powers, powers defined by an instrument which neither the federal assembly nor any of the four parliaments could alter, questions would forthwith arise as to the compatibility both of acts passed by the assembly with the provisions of the instrument, and of acts passed by any of the four parliaments with those passed by the assembly. These questions would come before the courts and be determined by them like any other question of law. The same thing would happen if Britain were to enter into a federal pact with her colonies, creating an imperial council, and giving it powers which, though restricted by the pact to certain purposes, transcended those of the British Parliament. The interpretation of the pact would belong to the courts, and both Parliament and the supposed council would be bound by that interpretation.¹² If a new supreme court were created by Britain, it would be created not because there do not already exist courts capable of entertaining all the questions that could arise, but because the parties to the new constitution enacted for the United Kingdom, or the British Empire (as the case might be), might insist that a tribunal composed of persons chosen by some federal authority would be more certainly impartial. The preliminary therefore to any such “judicial safeguard” as has been suggested is the extinction of the present British Parliament and the erection of a wholly different body or bodies in its room.

      These observations may suffice to show that there is nothing strange or mysterious about the relation of the federal courts to the Constitution. The plan which the Convention of 1787 adopted is simple, useful, and conformable to general legal principles. It is, in the original sense of the word, an elegant plan. But it is not novel, as was indeed observed by Hamilton in the Federalist. It was at work in the states before the Convention of 1787 met. It was at work in the thirteen colonies before they revolted from England. It is an application of old and familiar legal doctrines. Such novelty as there is belongs to the scheme of a supreme or rigid constitution, reserving the ultimate power to the people, and limiting in the same measure the power of the legislature.¹³

      It is nevertheless true that there is no part of the American system which reflects more credit on its authors or has worked better in practice. It has had the advantage of relegating questions not only intricate and delicate, but peculiarly liable to excite political passions, to the cool, dry atmosphere of judicial determination. The relations of the central federal power to the states, and the amount of authority which Congress and the president are respectively entitled to exercise, have been the most permanently grave questions in American history, with which nearly every other political problem has become entangled. If they had been left to be settled by Congress, itself an interested party, or by any dealings between Congress and the state legislatures, the dangers of a conflict would have been extreme, and instead of one civil war there might have been several. But the universal respect felt for the Constitution, a respect which grows the longer it stands, has disposed men to defer to any decision which seems honestly and logically to unfold the meaning of its terms. In obeying such a decision they are obeying, not the judges, but the people who enacted the Constitution. To have foreseen that the power of interpreting