one of the organs or branches of a government holds omnipotent power, that government may be called almost anything you will, except a democracy.

But cannot the representatives of the people be trusted to respect the Constitution and keep within the limits it has assigned for them? The unimpassioned voice of history replies that they cannot. Again and again have our legislative bodies, both state and national, grossly violated the constitutions and forced upon the courts the unwelcome task of pronouncing their enactments void. And it should be remarked that there is altogether too much of a disposition on the part of legislatures to enact statutes in spite of their own grave doubts of the constitutional validity of what they do. Let it appear that there is an insistent popular demand for legislation on a given subject, though the substance of it may hang balanced on the edge of unconstitutionality, and legislators are very prone to try the experiment of enacting it and of "putting it up to the courts" to say whether it is valid. This tendency is perfectly illustrated by the following extract from a speech delivered in the House of Representatives by a once prominent member from New York: "Our first step must be in the direction of legislation. The only way we can ascertain definitely whether a law which we believe will prove effective is constitutional or unconstitutional is not by abandoning ourselves to a maelstrom of speculation about what the court may hold, or has held on subjects more or less kindred, but to legislate, and thus to take the judgment of the court on that specific proposal. We can tell

whether it is constitutional or unconstitutional when the court pronounces upon it, and not before." And so again, in the recent debates in the Senate on the child-labor bill. Senator H. declared that the measure was unconstitutional, and recalled the fact that Senator G. had said so some months before. To this Senator G. replied that the people of the country wanted the bill passed, and that he still had doubts about its constitutionality, but was willing to vote for it and leave that question to the courts.

"The duty of the judiciary to declare unconstitutional laws void, and the conscientious firmness with which that duty usually been performed," says an eminent authority, "have led to some curious and unexpected results, not the least remarkable of which is the manner in which the legislature is sometimes disposed to cast the responsibility which properly belongs to it upon the courts. It must and will often happen that the popular clamor will call for doubtful legislation, and men who depend upon the popular voice for their positions do not always care to take the consequences of an unpopular discharge of duty, and are therefore easily induced to assent to legislation which their judgment assures them will be void, when they know that behind them are the courts which will refuse to enforce it. That this is a plain and most reprehensible evasion of duty there can be no question, and the consequences are more serious in many cases than might readily be supposed. For in every instance in which an enactment is pronounced unconstitutional, there is an apparent con

flict between the legislative and judicial departments of the government; and as the public have a right to suppose that each has given to the subject its best judgment, the fact that the legislative conclusion is one way and the judicial the other must necessarily lower in some degree the respect which the public would be inclined to have for the latter, and the confidence with which they would otherwise rely upon it. But every good citizen is interested in giving to a just and fearless discharge of judicial authority a free and liberal support, and whatever tends to lessen the hold of the judiciary on the public confidence, in the like degree diminishes its ability to perform its functions effectually, and tends to produce disorder in the commonwealth. An injury to good government is consequently done in every instance when legislators adopt a statute which they believe to be unconstitutional, since in so doing they not only evade a plain duty, but they also require of the courts the performance of an obnoxious and unpopular task which ought not to be cast upon them, and which is rendered doubly unpleasant by the apparent conflict of opinion between the two departments." (Thomas M. Cooley, in a note to Story on the Constitution, vol. 2, sec. 1576.)

But if a law-maker will thus tamper with his conscience and thus lightly regard his oath to support the constitution, what assurance can there be that he would rigorously obey the letter of the fundamental law if no court had power to test and try the lawfulness of his acts?

If we are still in doubt upon this subject, let us hear what some of the defenders of the judiciary have had to say, and especially let us get beyond the limits of our own country. A recent writer correctly observes that "there is no feature of the American government which has been so generally admired abroad, nor which is now undergoing such drastic criticism at home, as the federal judiciary." (Young, "The New American Government," p. 275.) Former President Taft has said: "The greatest advantage of our plan of government over every other is the character of the judicial power vested in the Supreme Court. The statesmen and historians of Europe look upon it with wonder and amazement, speak of it with profound approval, and regard it as the chief instrument in the maintenance of that self-restraint which the people of the United States have placed upon themselves and which has made this government the admiration of intelligent critics the world over." Francis Lieber said that the functioning of our courts of justice in this respect is "one of the most interesting and important evolutions of the government of law, and one of the greatest protections of the citizen. It may well be called a very jewel of Anglican liberty. one of the best fruits of our political civilization." ("Civil Liberty and SelfGovernment," p. 162.) So also Lord Bryce. "The Supreme Court is the living voice of the Constitution, that is, of the will of the people expressed in the fundamental law they have enacted. It is therefore, as some one has said, the conscience of the people, who have resolved to restrain themselves from

hasty or unjust action by placing their representatives under the restriction of a permanent law. It is the guarantee of the majority, who, when threatened by the impatient vehemence of a majority, can appeal to this permanent law, finding the interpreter and enforcer thereof in a court set high above the assaults of faction." ("The American Commonwealth," vol. 1, p. 266.) And Sir Henry Maine has told us that the success of this experiment has blinded men to its novelty. "There is no exact precedent for it either in the ancient or in the modern world. The builders of constitutions have of course foreseen the violation of constitutional rules, but they have generally sought for an exclusive remedy, not in the civil, but in the criminal law, through the impeachment of the offender. And in popular governments, fear or jealousy of an authority not directly delegated by the people has too often caused the difficulty to be left for settlement to chance or to the arbitrament

of arms." ("Popular Government," p. 218.) So it has been remarked by Sedgwick that "the federal judiciary as a matter of fact has played for more than a century exactly the part assigned to it by the framers of the Constitution. It has been powerful by weight of reasoning, it has been independent in the exercise of power, and it has been uncorrupted. It has vindicated the Constitution, and been a wonderful proof of what human contrivance and forethought can do in directing the operation of government through the play of ordinary motive in such a way that it shall prove responsible to the people for the efficient performance of

the work assigned to it." ("The Democratic Mistake," p. 106.)

And again, in this as in other respects, our federal Constitution has received the tribute of "the sincerest form of flattery." The power and duty to adjudge laws void if contrary to the Constitution are vested in the supreme judicial tribunals of Argentina, Brazil, Colombia, Cuba, Mexico, Nicaraugua, Peru, Uruguay, and Venezuela. And if a final word of testimony be needed, one of the most advanced advocates of a thoroughgoing democracy has remarked that much of the current criticism of the courts "is more vigorous than illuminating. It is a matter of common knowledge that the people resort to the courts for protection against the tyranny or folly of the legislative body quite as often as the reactionary interests resort to them for protection against the demands of political and social progress. When a fleeting majority in the legislature attempts to intrench itself in power by obnoxious legislation or to barter away. the people's inheritance or to misapply public funds, there is great satisfaction to the public in being able to apply to the courts for protection against the violation of constitutional guarantees." (Delos F. Wilcox, "Government by All the People,” p. 74.)

Many people of average intelligence but defective education are now declaiming bitterly against the courts as committed to policies of obstruction or as opponents of progress. They err greatly in representing the judges as a sort of third party in legislation, whose permission must be obtained before the will of the people, enacted into a stat

ute, can be done, and who put the "judicial veto" upon any law which they, for any reason whatever, dislike. Of course this is pure nonsense. There is no such thing as a judicial veto. But on the contrary, when the courts are asked by litigants to pronounce a statute unconstitutional, they proceed according to certain well-settled rules, which are never departed from, and which are familiar to all lawyers, though naturally not so much so to men of other professions. A technical discussion or illustration of these rules would not be appropriate in this connection, but they may here be stated briefly and categorically.

And first, no court is at liberty to pronounce a statute unconstitutional unless the fact that it is repugnant to some particular designated clause or portion of the constitution is distinctly alleged and clearly shown, or unless it is made indubitably to appear that the statute is contrary to some one or more of the implied limitations and restrictions upon the power of the legislature. Nor can the spirit of the Constitution or its supposed general purposes be invoked, apart from the words of the instrument, to invalidate a statute. For this reason, United States District Judge Hough, in speaking of certain provisions of the immigration law, refused to adjudge it unconstitutional, although he said: "For some years I have regarded it as harshly opposed to the spirit of the Constitution, and perhaps capable of use in derogation of earlier treaty rights of citizens of friendly nations, yet entirely within the congressional power of regulating

foreign commerce." (155 Federal Reporter, 428.)

In the next place, to induce a court to pass upon the constitutionality of a statute, the question must arise in the course of an actual and genuine litigation. No one can get the opinion of the court on such a question by making up a friendly issue with a pretended adversary. Of course a "test case" may be presented, but it must be a real suit between real antagonists. And as a corollary to this rule, a statute will not be declared invalid on the application of a mere volunteer. The attack must be made by some person whose rights or interests are directly affected by it. This is more fully explained in a recent decision of the Supreme Court, in which it was remarked by Mr. Justice Holmes that "there is a point beyond which this court does not consider arguments of this kind for the purpose of invalidating the tax laws of a state on constitutional grounds. This limit has been fixed in many cases. It is that, unless the party setting up the unconstitutionality of the state law belongs to the class for whose sake the constitutional protection is given, or the class primarily protected, this court does not listen to his objections, and will not go into imaginary cases, notwithstanding the seeming logic of the position that it must do so because if, for any reason or as against any class embraced, the law is unconstitutional, it is void as to all. If the law is valid when confined to the class of the party before the court, it may be more or less of a speculation to inquire what exceptions the state court might read into general

words, or how far it may sustain an act that partially fails." (204 U. S., 152.)

Again, the question may be raised after the act is passed, not before. In a few of the states, it is true, the constitutions permit the legislature or executive department to take the opinion of the supreme court upon the validity of a proposed or pending measure. But the court does not answer as a court, but as a constitutional adviser. Its opinion is always designated as "the opinion of the justices," not of "the court." The distinction is important, because it follows that an opinion so given is not conclusive of the rights of individuals, nor binding on the court itself, as a precedent, in subsequent litigation. But even this is not permitted under the federal system. It has not been attempted since 1793, when Washington asked the advice of the Supreme Court on certain questions of law, which the court respectfully declined to give.

Another rule is that the question of constitutionality will not be decided where it is only of academic interest in the case, but only where its solution is imperatively necessary to the right disposition of the controversy. The decision will be rested on grounds which do not involve a determination as to the validity of the statute, if there be any such in the case. It is only when the question of the constitutional authority of the legislature to enact the statute is the very gist and marrow of the case that the court will give its judgment on this point.

So also, a decision against the validity of the statute will be avoided, if it

is possible, by putting such a construction upon it as will make it conform to the Constitution. To this end, the court will even disregard the natural and usual import of the words used if it is possible to adopt another construction sustaining the statute, which shall not be strained or fantastic. "It is elementary," says Chief Justice White, "when the constitutionality of a statute is assailed, if the statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that construction which will save the statute from constitutional infirmity." And: "Where a statute is susceptible of two constructions by one of which grave and doubtful constitutional questions arise, and by the other of which such questions are avoided, our duty is to adopt the latter." (213 U. S., 366.)

Every presumption is in favor of the constitutionality of an act of the legislature. Every reasonable doubt must be resolved in favor of the statute, not against it, and the courts will not adjudge it invalid unless its violation of the Constitution is, in their judgment, clear, complete, and unmistakable. "It is not enough that a statute goes to the verge of constitutional power. We must be able to see clearly that it goes beyond that power. In case of real doubt, a law must be sustained." (Justice Holmes, in 207 U. S., 79.) "The legislature or local assembly acting under its authority is the governing body of the state or that portion thereof. It is its primary duty to determine what the public welfare demands, and every presumption must be indulged in its