Page:Origin and Scope of the American Doctrine of Constitutional Law.djvu/26

154 call for any qualification of the general remark, that such opinions, given by our judges, — like that well-known class of opinions given by the judges in England when advising the House of Lords, which suggested our own practice, — are merely advisory, and in no sense authoritative judgment. Under our constitutions such opinions are not generally given. In the six or seven States where the constitutions provide for them, it is the practice to report these opinions among the regular decisions, much as the responses of the judges in Queen Caroline's Case, and in MacNaghten's Case, in England, are reported, and sometimes cited, as if they held equal rank with true adjudications. As regards such opinions, the scruples, cautions, and warnings of which I have been speaking, and the rule about a reasonable doubt, which we have seen emphasized by the courts as regards judicial decisions upon the constitutionality of laws, have no application. What is asked for is the judge's own opinion.

(3) Under the third head come the questions arising out of the existence of our double system, with two written constitutions, and two governments, one of which, withiin its sphere, is of higher authority than the other. The relation to the States of the paramount government as a whole, and its duty in all questions involving the powers of the general government to maintain that power as against the States in its fulness, seem to fix also the duty of each of its departments; namely, that of maintaining this paramount authority in its true and just proportions, to be determined by itself. If a State legislature passes a law which is impeached in the due course of litigation before the national courts, as being in conflict with the supreme law of the land, those courts may have to ask themselves a question different from that which would be applicable if the enactments were those of a co-ordinate department. When the question relates to what is admitted not to belong to the national power, then whoever construes a State constitution, whether the State or national judiciary, must allow to that legislature the full range of rational construction. But when the question is whether State action be or be not conformable to the paramount constitution, the supreme law of the land, we have a different matter in hand. Fundamentally, it involves the allotment of power between the two governments, — where the line is to be drawn. True, the judiciary is still debating whether a legislature has transgressed its