obliged to content ourselves with the description with which we started, namely, that it embraces all those rules and principles which determine the form of governmental organization of a State, and allot to its several organs or departments their respective powers.

This, for the purpose of general political theory, is a correct definition of constitutional law. But it is not a definition which is adequate for a nation, such as the United States, living under written Constitutions which give to the courts their final interpretation, and which obligates them, in cases of conflict between these written constitutional provisions and ordinary statutory laws, to give precedence to the former. Under this system constitutional law must be said to embrace all law that, irrespective of its substance, is contained within the four corners of written instruments of government denominated Constitutions. Were these constitutions wholly devoted to the creation of governmental machinery and the allotment of powers to its constituent parts, the law embraced within this formal definition would substantially coincide Iwith that included within the definition stated above as satisfactory to the political theorist. But, in fact, many of our State Constitutions go far beyond this and include provisions which, viewed with regard to the matters to which they relate, properly belong within the field of private statutory law.

The Federal Constitution has of course a double function to perform. It has not only to provide for a governmental machinery for the Union, and to distribute its powers, but to delimit the respective competencies of the Nation and of the individual States. Regarded as an instrument for this second purpose it is a grant of power giving to the United States those powers which it is to possess, and leaving with the States, with but a few enumerated exceptions, those powers which are not so granted.

The State Constitutions are, upon the contrary, primarily instruments of limitation. In so far as they are not devoted to providing machineries of government, they have for their end and aim the placing of limitations upon the governments which they create, which governments are held to possess all powers not denied to them by the Federal Constitution or specifically withdrawn from them by the respective Constitutions to which they owe their origin. These State constitutional limitations are for the most part upon the legislatures, and the increase in their number which the more recently adopted Constitutions have shown has evinced a growing distrust upon the part of the people of their legislative representatives. This distrust has also been shown in some instances by the insertion of provisions for the referendum and the popular initiation of laws. But not a few of these added constitutional clauses have been due to a distrust of the courts, the aim being so explicitly to authorize legislation as to render it practically impossible for the courts to interpose the objection of unconstitutionality as tested by the State Constitutions.4

The American doctrine of the supremacy of the Constitution It has already been indicated that in the United States

4 This, however, still leaves it possible for the State courts to hold State statutes void upon the ground that they are in conflict with the Federal Constitution, and especially with that clause of the Fourteenth Amendment which declares that "no State shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." In those cases in which its courts so hold, there is, under existing statutes, no right of appeal by writ of error to the Supreme Court of the United States, for, by the twenty-fifth section of the judiciary act, which is still in force, that tribunal is given jurisdiction to review decrees of the State courts, by writs of error, only in those cases in which a Federal right, privilege, or immunity has been claimed and denied.

the courts are the final interpreters of the constitutional powers not only of executive and administrative officers but of the legislatures themselves. Independently of express statement to this effect in the Constitution it has become an established principle that no statute is valid if inconsistent with the provisions of the Constitution from which the enacting legislature derives its powers. So, similarly, no act or order of an executive official is legal for the performance or issuance of which a constitutional authorization cannot be shown. A State statute inconsistent with the Constitution of that State is, therefore, invalid, and an act of Congress not warranted by the provisions of the Federal Constitution is similarly void. In addition to being subordinate to the provisions of the State Constitution, every act of a State official or organ must conform to the requirements of the Federal Constitution, and this applies as well to the provisions of the Constitution of the State as to the statutes of its legislature.

This principle that statutory law in order to be valid must be in conformity with constitutional requirements is a product of American jurisprudence, and peculiar to it. In this country alone is the written constitutional law not only morally, but legally restrictive of the lawmaking branch of the government, and the final interpretation of these restrictions, express and implied, vested in the judicial department.5

'Professor A. V. Dicey in his well-known treatise, The Law of the Constitution (7th ed., 1908, note vii, Appendix), calls attention to the three different meanings of the phrase "unconstitutional law" as employed in England, France, and the United States. In England it means simply that, in the opinion of the person using it, the measure is opposed to the spirit of the unwritten principles of constitutional practice, but not that it is, for that reason, void of legal force. In France the term means that the act is contrary to the provisions of the written Constitution, but not that the courts

One further point with reference to the nature of the power exercised by courts when passing upon the constitutional validity of laws requires mention. This is that the point at issue between the legislature and the courts, or between an appellate tribunal and the courts whose decrees it reviews, is often a question not as to the meaning to be given to constitutional provisions, but as to the correctness of certain findings of fact. Thus, to illustrate, a State legislature having prescribed a maximum rate which railroads may charge, or established a rule as a proper police regulation, it may become necessary for the court to determine whether in fact the prescribed rate is so low as to be confiscatory and therefore to amount to a taking of property without due process of law, or whether the police regulation is in fact, all the circumstances involved being considered, a reasonable one and the consequent limitation upon the private rights of property or freedom of contract justified as such. Here there is no dispute as to the meaning of the constitutional provision with reference to the taking of property without due process of law, nor any denial of the right of the Federal Supreme Court to hold void State laws which violate this provision. The only dispute or question involved is whether in fact the given rate is confiscatory, or whether the police regulation is justified as a legitimate exercise of the so-called "Police Power."

This American doctrine as to the invalidity of unconstitutional legislative acts had received a certain degree will refuse to recognize its legal validity. The word "unconstitutional," says Dicey, "would probably though not of necessity be, when employed by a Frenchman, a term of censure.' In the United States an unconstitutional measure is one not warranted by the written instruments of government of the States or of the United States, and, as such, is held not to be a law at all. It is an ultra vires measure, and at most only a vain attempt upon the part of the enacting body to create a law.

of acceptance, though not without protest, in the courts of the States prior to 1803, but it was first in that year

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in the great case of Marbury v. Madison that the Supreme Court of the United States by its acceptance of it, and Chief Justice Marshall by the opinion which he rendered in support of it, finally established the doctrine as a fundamental principle of American constitutional jurisprudence. It is true that Marshall's reasoning is defective in so far as it is based on the idea that this judicial power necessarily exists in a government organized under a written Constitution, but he is upon firm ground when he points out that the Federal judicial power is extended to "all cases, in law or equity, arising under the Constitution," and that, in the exercise of this jurisdiction, thus specifically given, it is necessary that in cases involving conflicts between statutory and constitutional provisions, the courts should give effect to the Constitution under which they are organized.

Constitutionality of State laws

When it is said that the power vested in the courts of this country to hold void measures enacted by the lawmaking branch of the governments of which they themselves constitute the judicial branch, is a unique one, no reference is had to the authority of our judicial tribunals to refuse to recognize the validity of those acts of the legislatures of the States which are in conflict with the provisions of the Federal law, for this is a right determined by the supremacy of national law over State law. This supremacy is clearly stated in that provision of Article VI of the Federal Constitution which declares that "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United 61 Cr. 137; 2 L. ed. 60.