788
77/6' Green Bag.
citizens amongst themselves are almost all regulated by the sovereignty of the States. "A second and still greater cause of the preponderance of this court may be ad duced. In -the nations of Europe the courts o* justice are only called upon to try the controversies of private individuals; but the Supreme Court of the United States sum mons sovereign powers to its bar. When the clerk of the court advances on the steps of the tribunal, and simply says, 'The State oí' New York versus the State of Ohio.' it is impossible not to feel that the court which he addresses is no ordinary body." The Supreme Court then first of all owes its paramount importance to the peculiar function of government which the Constitu tion framers purposed it to perform. A con stitutional government, it should be remem bered, although founded on a determinate statement of the law is in no sense neces sarily immutable. The fathers of the repub lic realized that time would bring changes of circumstance, and that the constitution must admit of recognition of such changes. On the other hand the constitution would be the first of all the laws, the source of all lüter legislative inspiration, and as such no law-making body should have the power to modify it. Each act of the legislature must in principle conform to its fundamental pro visions; if there were no conformity, the act could not in reality be law. In other words, the law-making body of this constitutional government could not, as in England, where Parliament was the constitution in itself, be at once the inspiration and the machinery of the law; mere enactment could not ipso facto create; the pronouncements of the legisla ture would or would not be laws according as they did or did not conform to the writ ten constitution. It is a common saying that republics derive their motive power from the enactments of their representative assemblies, the people speaking through their delegates have been substantially the
be-all and the end-all of government; in these United States the truth was that the peoples' representatives were themselves created by a higher power, their voice was not to be the voice of omnipotence, their acts must fall in certain well defined lines. Yet, said the framers, the constitution must not itself be immutable, it must adapt itself to change. So they provided that should the people through their representa tives be thwarted in some desire they might constitutionally and hence lawfully alter the charter of government by amendment. This they would not do until they discovered that their repeatedly expressed desire ran coun ter to the basic principle of government. And this vital question. Was the act of con gress constitutional, what power should de cide? This, said the makers, should be the function of the Supreme Court of the land. The function so given is unique in history. In France the constitution is, or has always been held to lie immutable; no power has the legal right to change it. Hence the tri bunals of France obey the laws as they are made by legislation, and it follows that the legislature, and not the constitution is su preme. If this were not so the judges of France would take the place of the people in America, that is to say, the absolute place, inasmuch as what they pronounced to be in accord with the constitution would be law, nothing else would be, and the consti tution could not be changed. We must then reach this conclusion, that where the consti tution of a country is immutable, the courts must obey the legislative body in its inter pretation; but where the constitution is subject to amendment, the courts may declare the acts of legislatures invalid as contrarv to the fundamental law of the land. Where. as in England, Parliament is itself the con stitution, the question never arises which way the courts shall look: whatever Parlia ment enacts is part and parcel of the consti tution.
