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notwithstanding, and irrespectively of what may be the opinions and efforts of those exercising the political powers of these States.

The individual Commonwealths, having a political status only as members of the Union, have not the legal power to place themselves, as political bodies, in opposition to the national will. Their legislatures, their courts or their executive officials may attempt acts unwarranted by the Federal Constitution or Federal law, and they may even command generally that their citizens shall refuse obedience to some specified Federal laws or to the Federal authorities generally, but in all such cases such acts are, legally viewed, simply void, and all individuals obeying them subject to punishment as offenders against national law. The fact that their respective States have directed them to refuse obedience or offer resistance to the execution of the Federal laws can afford them no immunity from punishment, for no one can shelter himself behind an unconstitutional measure which is, in truth, not a law at all, but only an unsuccessful attempt at

a law. 3

Constitutional law

In the broadest sense of the term, every politically organized society possesses a Constitution. By this is meant that it possesses a body of rules or principles which determine the form of government which shall exist, and allot to its various departments or officials their respective powers. When these rules are fairly definite, are recognized by those in authority as controlling, and are supported by a public opinion sufficient in force to offer a considerable guarantee that they will be obeyed, the State is said to

3 See for a correct statement of this principle the first annual message of President Lincoln.

and valid from the time of its enactment. In practice, as a matter of justice and of expediency, these principles have at times been departed from, but in general the rule is as stated.?

The expediency of giving this power to the courts is of course, open to discussion. That it is a tremendous power cannot be questioned. As said by Bishop Hoadly years before our Constitution was adopted, "whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all intents and purposes, and not the person who first wrote or spoke them.” It would seem clear that by training, by tenure of office, and by the character of the functions which they perform, the judges of the Federal Supreme Court and of the highest courts of the States, are less likely to be hurried on, under the pressure of passion or of temporary exigency, to such a violation of the spirit, or to such a strained construction of the language, of the Constitution as will deprive that instrument of its true restraining character. But, upon the other hand, there is the danger, which not a few persons think has in some instances become a reality, that the judges, not being in close touch with or responsible to public opinion, will assume an unnecessarily strict or biased attitude towards the constitutional powers of the legislature, and especially towards those relating to what is known as the police powers of the State. In general, however, it is to be said that the courts, have, by the rules which they have laid down for themselves with reference to the validity of legislative acts, kept their authority within just and expedient limits. These rules are considered in Chapter III.,

7 Norton v. Shelby Co., 118 U. S. 425; 6 Sup. Ct. Rep. 1121; 30 L. ed. 178. But see Gelpcke v. Dubuque, 1 Wall. 175; 17 L. ed. 520; and exceptions coming under the doctrine of de facto officers and corporations acting under unconstitutional statutes.

amendment or final interpretation of which is within the control of the legislative branch.

The adoption of written Constitutions does not prevent the existence and development of bodies of unwritten constitutional law; for, however comprehensive these fundamental documents may be, there inevitably grows up a considerable body of unwritten constitutional practices as fixed and, for all practical purposes, as obligatory as those provided for in the written instruments. Furthermore, in any event, a written Constitution requires interpretation, and when the power of interpretation is confided to the courts there necessarily develops in the decisions which are rendered a constantly increasing body of rules and principles which in the aggregate compose the constitutional law of the country. Thus, in the United States, in the more than two hundred volumes of the decisions of the Federal Supreme Court, not to speak of the reported opinions of the State and lower Federal courts, a complex system of constitutional jurisprudence has developed which requires the preparation of lengthy and elaborate commentaries for its statement and explanation.

From what has been said it is seen that if we are to seek a definition of constitutional law, valid for all countries, and which will distinguish it from other classes of law, we cannot accept as its peculiar characteristic the fact that it is found embodied in written and formally adopted and promulgated documents denominated Constitutions. Nor can we select as its distinguishing mark the fact that it is of superior legal validity. For, not to speak of England, which, according to such a description, could not be said to have any constitutional law at all, we are met by the fact that in no country other than our own is this legal superiority of constitutional law fully recognized. For a general definition of constitutional law we are thus thrown back upon its subject matter, and are

For the manner in which the Federal supremacy is in practice maintained, especial reference may, however, be made to the chapters and sections dealing with the immunity of Federal agencies from State taxation; the power of the Supreme Court to review decisions of State courts adverse to privileges, rights, and immunities claimed under the Federal Constitution, treaties or laws; the removal of cases from State to Federal courts; the issuance by Federal courts of writs of habeas corpus directed to State officials; and the independence of Federal courts from State interference or control. It will, however, be appropriate to refer here to certain cases in which the supremacy of the Federal authority has been broadly stated and under circumstances which have given especial weight and importance to the assertion.

In general it may be stated that in no instance has the Supreme Court failed to assert the supremacy of the Federal power when its authority has been attacked by the States. Only four years after the adoption of the Constitution the court upheld its right under the Constitution as it then stood, i. e., before the adoption of the Eleventh Amendment, to entertain a suit against the State of Georgia brought by a citizen of another State.1 The next year the court clearly intimated that it would disregard a State law in conflict with a Federal treaty. The supremacy of Federal law was again asserted the next year in Penhallow v. Doane, and in 1796 in Ware v. Hylton. In Calder v. Bull 4 the doctrine was definitely asserted, though its application was not found necessary, that a State law in conflict with the Federal Constitu

1 Chisholm v. Georgia, 2 Dall. 419; 1 L. ed. 440.
23 Dall. 54; 1 L. ed. 507.
33 Dall. 199; 1 L. ed. 568.
*3 Dall. 386; 1 L. ed. 648.

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.

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