majority of the people, and, in a general way, they are expected to carry out the wishes of their constituents; but the Courts stand in a very different position. They are not in any ordinary sense of the word the representatives of the people, and it is not their mission to enforce the popular will. To some extent, it is true, the opinion has prevailed that the judges, like all other public servants, ought to depend for office upon popular esteem or approval; ind in many States laws have been accordingly passed providing that they shall be elected by the people for limited terms. But, happily, the influence of such ideas appears to be on the wane, for the lengthening of the terms for which judges are chosen, and the provisions forbidding reëlection, seem to indicate a return to a moral rational view of the functions of the judiciary. If, indeed, it were the duty of the courts to give effect to the wishes of the people upon constitutional questions, our government would be a truly absurd one. The judicial body would then be a sort of additional legislature extremely ill-fitted for its task. But, in fact, the duty of the courts is almost the reverse of this, because the popular desire for a law may very well be presumed from the fact
- ↑ This matter is admirably treated in A. V. Dicey’s “Law of the Constitution,” London, 1885.
council composed of his official superiors, or because his acts are cognizable only by special administrative tribunals; and where this is true, it is clear that the judiciary cannot by their decisions bind the other branches of the government. There is, in those countries, one law for the citizen and another for the public servant; and, in fact, the rights and duties of the latter are regulated by a vast body of special law known as the droit administratif, which falls entirely outside the jurisdiction of the ordinary courts. By this means the Executive has been made really independent of the judiciary.[1] But nothing of this kind is true in the United States. There is here only one law, administered by one set of tribunals, to whose jurisdictions every one is subject. It follows that the law administered by the courts is the one law of the land, binding on all persons and all branches of the government. This must of necessity be the case so long as public officers are by law and in fact amenable to the ordinary process of the courts, and it is as true of constitutional as of the common law, so far, at least, as the rights of individuals are concerned. The fact is that a great deal of confusion is introduced into this subject by regarding the provisions of the Constitution as a statement of political maxims, instead of a source of positive law. If it is admitted (what no one now attempts seriously to deny) that the Constitution is in effect a law enacted by a body of higher legislative authority than Congress, the question is really cleared of most of its difficulty, for no one doubts that the Executive is bound by a judicial construction of a statute. The statements in the text must, of course, be understood with the qualification that the courts have authority to determine the limits of the powers granted by the Constitution only when the question is presented in actual litigation. But as there is no question of this sort which may not arise in an actual case, the qualification does not impair the correctness of the statement.
