Page:Harvard Law Review Volume 9.djvu/306

27S HARVARD LAW REVIEW. appropriate powers, the power to pass upon the constitutionality of legislative acts, that is, a power distinctly political. The burden of proof is obviously on those who make this assertion. The main argument in support of the claim is this : the Constitution is the supreme law of the land ; it is the peculiar function of the judiciary to interpret the law ; therefore, in case of a conflict between the supreme law and a law passed by the legislature, the latter must be declared void. It is of course essential to the cognizance and decision of such a conflict that the judiciary have the right to interpret the Constitution; but to say that the Constitution is the supreme law is not necessarily to say that it is law which the judiciary may interpret. What is really meant by the phrase, the Constitution is the supreme law, is that the Constitu- tion is a set of rules binding on the several departments of government. Can it be said to follow that one department has the power to declare the meaning of the rules addressed to the other departments? Each depirtment, according to the natural impUcation, should look to those rales addressed to itself, and determine their meaning. Because these rules are not binding if not enforced, is no reason that one department shouM deduce the power to enforce upon another department its intt-r- pretauon ot rules not addressed to itself. Rather it would seem to follow that the people who have formulated these rules, and have not expressly delegated the power to interpret and to enforce ihem, have reserved that power to themselves, in case the departments overstep their constitutional limits. This view of the Constitution, that each department has a right to interpret those rules addressed to itself, and demand acquiescence in the interpretation from the other departments, is, it is true, a concep- tion of the Constitution as directory rather than as mandatory and unyielding. Yet to-day, with the power of the judiciary in this country to declare acts of the legislature unconstitutional and void firmly established, much of the Constitution remains to all purposes directory. Many violations of its rules on the part of the legislature are not open to judicial cognizance. Two classes of violations are sufficient examples : one, a refusal to legislate though required to do so by the Constitu- tion ; the other, the enactment and enforcement of laws which, though plainly inconsistent with constitutional provisions, have not been brought up in judicial form for the consideration of the courts, and which there- fore, in spite of obvious unconstitutionality, may be operative and bind- ing on the people for years. The check on unconstitutional legislation exercised by our courts is one of the weakest and most remote in our scheme of government. Those who assert that it will lead to utter confusion to allow the vaTious departments to define the limits of their respective powers overlook the relative unimportance of the judicial check in comparison with other checks provided for in written Constitutions : the restrain- ing influence of public sentiment; and above all the actual experience of those countries whose Legislation is free from judicial check. The constitutions of France and Switzerland ex^iressly declare that the courts shall be bound by all the acts of the legislature. It may be true, as Prof. Burrage says, that illustrious European jurists and publicists are urging: that the power of declaring legislative acts void for unconstitu- tionality be exercised by the Continental courts : yet as a matter of fact the German courts," free from the influence of precedents peculiar in