The American Commonwealth. Viscount James Bryce

were settled, controversy often raged round the courts, because the decision of contested points lay in their hands. When Charles I could not induce Parliament to admit the right of levying contributions which he claimed, and Parliament relied on the power of the purse as its defence against Charles I, the question whether ship money could lawfully be levied was vital to both parties, and the judges held the balance of power in their hands. At that moment the law could not be changed, because the houses and the king stood opposed: hence everything turned on the interpretation of the existing law. In America the Constitution is at all times very hard to change; much more then must political issues turn on its interpretation. And if this be so, must not the interpreting court be led to assume a control over the executive and legislative branches of the government, since it has the power of declaring their acts illegal?

      There is ground for these criticisms. The evil they point to has occurred and may recur. But it occurs very rarely, and may be averted by the same prudence which the courts have hitherto generally shown. The causes which have enabled the federal courts to avoid it, and to maintain their dignity and influence almost unshaken, are the following:

      

      I. The Supreme Court—I speak of the Supreme Court because its conduct has governed that of inferior federal courts—has always declared that it is not concerned with purely political questions. Whenever it finds any discretion given to the president, any executive duty imposed on him, it considers the manner in which he exercises his discretion and discharges the duty to be beyond its province. Whenever the Constitution has conferred upon Congress a power of legislating, the court declines to inquire whether the use of the power was in the case of a particular statute passed by Congress either necessary or desirable, or whether it was exerted in a prudent manner, for it holds all such matters to be within the exclusive province of Congress.

      “In measures exclusively of a political, legislative, or executive character, it is plain that as the supreme authority as to these questions belongs to the legislative and executive departments, they cannot be re-examined elsewhere. Thus Congress, having the power to declare war, to levy taxes, to appropriate money, to regulate intercourse and commerce with foreign nations, their mode of executing these powers can never become the subject of re-examination in any other tribunal. So the power to make treaties being confided to the President and Senate, when a treaty is properly ratified, it becomes the law of the land, and no other tribunal can gainsay its stipulations. Yet cases may readily be imagined in which a tax may be laid, or a treaty made upon motives and grounds wholly beside the intention of the Constitution. The remedy, however, in such cases is solely by an appeal to the people at the elections, or by the salutary power of amendment provided by the Constitution itself.” ¹

      Adherence to this principle has enabled the court to avoid an immixture in political strife which must have destroyed its credit, has deterred it from entering the political arena, where it would have been weak, and enabled it to act without fear in the sphere of pure law, where it is strong. Occasionally, however, as I shall explain presently, the court has come into collision with the executive. Occasionally it has been required to give decisions which have worked with tremendous force on politics. The most famous of these was the Dred Scott case,² in which the Supreme Court, on an action by a Negro for assault and battery against the person claiming to be his master, declared that a slave taken temporarily to a free state and to a territory in which Congress had forbidden slavery, and afterwards returning into a slave state and resuming residence there, was not a citizen capable of suing in the federal courts if by the law of the slave state he was still a slave. This was the point which actually called for decision; but the majority of the court, for there was a dissentient minority, went further, and delivered a variety of dicta on various other points touching the legal status of Negroes and the constitutional view of slavery. This judgment, since the language used in it seemed to cut off the hope of a settlement by the authority of Congress of the then (1857) pending disputes over slavery and its extension, did much to precipitate the Civil War.

      Some questions, and among them many which involve political issues, can never come before the federal courts, because they are not such as are raisable in an action between parties. Of those which might be raised, some never happen to arise, while others do not present themselves in an action till some time after the statute has been passed or act done on which the court is called to pronounce. By that time it may happen that the warmth of feeling which expressed itself during debate in Congress or in the country has passed away, while the judgment of the nation at large has been practically pronounced upon the issue.

      II. Looking upon itself as a pure organ of the law, commissioned to do justice between man and man, but to do nothing more, the Supreme Court has steadily refused to decide abstract questions, or to give opinions in advance by way of advice to the executive. When, in 1793, President Washington requested its opinion on the construction of the treaty of 1788 with France, the judges declined to comply.

      This restriction of the Court’s duty to the determination of concrete cases arising in suits has excited so much admiration from Tocqueville and other writers, that the corresponding disadvantages must be stated. They are these:

      To settle at once and forever a disputed point of constitutional law would often be a gain both to private citizens and to the organs of the government. Under the present system there is no certainty when, if ever, such a point will be settled. Nobody may care to incur the trouble and expense of taking it before the court. A suit which raises it may be compromised or dropped.

      When such a question, after perhaps the lapse of years, comes before the Supreme Court and is determined, the determination may be different from what the legal profession has expected, may alter that which has been believed to be the law, may shake or overthrow private interests based upon views now declared to be erroneous.³ These are, no doubt, drawbacks incident to every system in which the decisions of courts play a great part. There are many points in the law of England which are uncertain even now, because they have never come before a court of high authority, or, having been decided in different ways by coordinate courts, have not been carried to the final court of appeal. But in England the inconvenience, should it be great, can be removed by an act of Parliament; and it can hardly be so great as it may be in America, where, since the doubtful point may be the true construction of the fundamental law of the Union, the president and Congress may be left in uncertainty as to how they shall shape their course. With the best wish in the world to act conformably to the Constitution, these authorities have no means of ascertaining before they act what, in the view of its authorized interpreters, the true meaning of the Constitution is. Moved by this consideration, seven states of the Union have by their constitutions empowered the governor or legislature to require the written opinions of the judges of the highest state court on points submitted to them.⁴ But the president of the United States can only consult his attorney general,⁵ and the houses of Congress have no legal adviser, though to be sure they are apt to receive a profusion of advice from their own legal members.⁶

      III. Other causes which have sustained the authority of the court by saving it from immersion in the turbid pool of politics, are the strength of professional feeling among American lawyers, the relation of the bench to the bar, the power of the legal profession in the country. The keen interest which the profession takes in the law secures an unusually large number of acute and competent critics of the interpretation put upon the law by the judges. Such men form a tribunal to whose opinion the judges are sensitive, and all the more sensitive because the judges, like those of England, but unlike those of continental Europe, have been themselves practising counsel. The better lawyers of the United States do not sink their professional sentiment and opinion in their party sympathies. They know good law even when it goes against themselves, and privately condemn as bad law a decision none the less because it benefits their party or their client. The federal judge who has recently quitted the ranks of the bar remains in sympathy with it, respects its views, desires its approbation. Both his inbred professional habits, and his respect for those traditions which the bar prizes, restrain him from prostituting his office to party objects. Though he has usually been a politician, and owes his promotion to his party, his political trappings drop off him when he mounts the supreme bench. He has now nothing to fear from party displeasure, because he is irremovable (except by impeachment), nothing to hope