Page:Origin and Scope of the American Doctrine of Constitutional Law.djvu/10

138 one. Their interference was but one of many safeguards, and its scope was narrow.

The rigor of this limitation upon judicial action is sometimes freely recognized, yet in a perverted way which really operates to extend the judicial function beyond its just bounds. The court's duty, we are told, is the mere and simple office of construing two writinigs and comparing one with another, as two contracts or two statutes are construed and compared when they are said to conflict; of declaring the true meanitng of each, and, if they are opposed to each other, of carrying into effect the constitution as being of superior obligation, — an ordinary and humble judicial dpty, as the courts sometimes describe it. This way of putting it easily results in the wrong kind of disregard of legislative considerations; not merely in refusing to let them directly operate as grounds of judg- ment, but in refusing to consider them at all. Inastead of takiing them into account and allowing for thetn as furnishing possible grounds of legislative action, there takes place a pedantic and academic treatment of the texts of the constitution and the laws. And so we miss that combination of a lawyer's rigor with a statesman's breadth of view which should be found in dealinig with this class of questions in constitutional law. Of this petty method we have many specimens; they are found only too easily to-day in the volumes of our current reports.

In order, however, to avoid falling into these narrow and literal methods, in order to prevent the courts from forgetting, as Marshall said, that " it is a constitution we are expounding," these literal precepts about the nature of the judicial task have been accompanied by a rule of administration which has tended, in competent hands, to give matters a very different complexion.

III. Let us observe the course wlhich the courts, in point of fact, have taken, in administering this interesting jurisdiction.

They began by resting it upon the very simple ground that the legislatture had only a delegated and limited authority under the constitutions; that these restraints, in order to be operative, must be regarded as so muclh law; and, as being law, that they nmuist be interpreted and applied by the court. This was put as a mere matter of course. The reasoningy was simple and narrow. Stich was Hamilton's method in the Federalist, in 1788, while discussing the Federal constitution, but on grounds applicable, as he con-