The American Commonwealth. Viscount James Bryce
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Constitution and statutes, and of determining whether or not state constitutions and statutes transgress federal provisions, would be sufficient to prevent struggles between the national government and the state governments, required great insight and great faith in the soundness and power of a principle. While the Constitution was being framed the suggestion was made, and for a time seemed likely to be adopted, that a veto on the acts of state legislatures should be conferred upon the federal Congress. Discussion revealed the objections to such a plan. Its introduction would have offended the sentiment of the states, always jealous of their autonomy; its exercise would have provoked collisions with them. The disallowance of a state statute, even if it did really offend against the federal Constitution, would have seemed a political move, to be resented by a political countermove. And the veto would often have been pronounced before it could have been ascertained exactly how the state statute would work, sometimes, perhaps, pronounced in cases where the statute was neither pernicious in itself nor opposed to the federal Constitution. But by the action of the courts the self-love of the state is not wounded, and the decision declaring one of their laws invalid is nothing but a tribute to the higher authority of that supreme enactment to which they were themselves parties, and which they may themselves desire to see enforced against another state on some not remote occasion. However, the idea of a veto by Congress was most effectively demolished in the Convention by Roger Sherman, who acutely remarked that a veto would seem to recognize as valid the state statute objected to, whereas if inconsistent with the Constitution it was really invalid already and needed no veto.
By leaving constitutional questions to be settled by the courts of law another advantage was incidentally secured. The court does not go to meet the question; it waits for the question to come to it. When the court acts it acts at the instance of a party. Sometimes the plaintiff or the defendant may be the national government or a state government, but far more frequently both are private persons, seeking to enforce or defend their private rights. For instance, in the famous case14 which established the doctrine that a statute passed by a state repealing a grant of land to an individual made on certain terms by a previous statute is a law “impairing the obligation of a contract,” and therefore invalid, under art. I, § 10 of the federal Constitution; the question came before the court on an action by one Fletcher against one Peck on a covenant contained in a deed made by the latter; and to do justice between plaintiff and defendant it was necessary to examine the validity of a statute passed by the legislature of Georgia. This method has the merit of not hurrying a question on, but leaving it to arise of itself. Full legal argument on both sides is secured by the private interests which the parties have in setting forth their contentions; and the decision when pronounced, since it appears to be, as in fact it is, primarily a decision upon private rights, obtains that respect and moral support which a private plaintiff or defendant establishing his legal right is entitled to from law-abiding citizens. A state might be provoked to resistance if it saw, as soon as it had passed a statute, the federal government inviting the Supreme Court to declare that statute invalid. But when the federal authority stands silent, and a year after in an ordinary action between Smith and Jones the court decides in favour of Jones, who argued that the statute on which the plaintiff relied was invalid because it transgressed some provision of the Constitution, everybody feels that Jones was justified in so arguing, and that since judgment was given in his favour he must be allowed to retain the money which the court has found to be his, and the statute which violated his private right must fall to the ground.
This feature has particularly excited the admiration of Continental critics. To an Englishman it seems perfectly natural, because it is exactly in this way that much of English constitutional law has been built up. The English courts had indeed no rigid documentary constitution by which to test the ordinances or the executive acts of the Crown, and their decisions on constitutional points have often been pronounced in proceedings to which the Crown or its ministers were parties. But they have repeatedly established principles of the greatest moment by judgments delivered in cases where a private interest was involved, grounding themselves either on a statute which they interpreted or on some earlier decision.15 Lord Mansfield’s famous declaration that slavery was legally impossible in England was pronounced in such a private case. Stockdale v. Hansard, in which the law regarding the publishing of debates in Parliament was settled, was an action by a private person against printers. The American method of settling constitutional questions, like all other legal questions, in actions between private parties, is therefore no new device, but a part of that priceless heritage of the English common law which the colonists carried with them across the sea, and which they have preserved and developed in a manner worthy of its own free spirit and lofty traditions.
Those err who suppose that the functions above described as pertaining to the American courts are peculiar to and essential to a federal government. These functions are not peculiar to a federation, because the distinction of fundamental laws and inferior laws may exist equally well in a unified government, did exist in each of the thirteen colonies up till 1776, did exist in each of the thirteen states from 1776 till 1789, does exist in every one of the forty-eight states now. Nor are they essential, because a federation may be imagined in which the central or national legislature should be theoretically sovereign in the same sense and to the same full extent as is the British Parliament.16 The component parts of any confederacy will no doubt be generally disposed to place their respective states’ rights under the protection of a compact unchangeable by the national legislature. But they need not do so, for they may rely on the command which as electors they have over that legislature, and may prefer the greater energy which a sovereign legislature promises to the greater security for states’ rights which a limited legislature implies. In the particular case of America it is abundantly clear that if there had been in 1787 no states jealous of their powers, but an united nation creating for itself an improved frame of government, the organs of that government would have been limited by a fundamental law just as they have in fact been, because the nation, fearing and distrusting the agents it was creating, was resolved to fetter them by reserving to itself the ultimate and overriding sovereignty.
The case of Switzerland shows that the American plan is not the only one possible to a federation. The Swiss Federal Court, while instituted in imitation of the American, is not the only authority competent to determine whether a cantonal law is void because inconsistent with the federal Constitution, for in some cases recourse must be had not to the Court but to the Federal Council, which is a sort of executive cabinet of the Confederation. And the Federal Court is bound to enforce every law passed by the federal legislature, even if it appear to conflict with the Constitution. In other words, the Swiss Constitution has reserved some points of cantonal law for an authority not judicial but political, and has made the federal legislature the sole judge of its own powers, the authorized interpreter of the Constitution, and an interpreter not likely to proceed on purely legal grounds.17 To an English or American lawyer the Swiss copy seems neither so consistent with sound theory nor so safe in practice as the American original. But the statesmen of Switzerland felt that a method fit for America might be ill-fitted for their own country, where the latitude given to the executive is greater; and the Swiss habit of constantly recurring to popular vote makes it less necessary to restrain the legislature by a permanently enacted instrument. The political traditions of the European continent differ widely from those of England and America; and the federal judicature is not the only Anglo-American institution which might fail to thrive anywhere but in its native soil.
Those readers who have followed thus far the account given of the federal courts have probably asked themselves how judicial authorities can sustain the functions which America requires them to discharge. It is plain that judges, when sucked into the vortex of politics, must lose dignity, impartiality, and influence. But how can judges keep out of politics, when political issues raising party passions come before them? Must not constitutional questions, questions as to the rights under the Constitution of the federal government against the states, and of the branches of the federal government against one another, frequently involve momentous political issues? In the troublous times during which the outlines of the