Page:Origin and Scope of the American Doctrine of Constitutional Law.djvu/7

Rh of mere discretion, it mattered not that other departments were violating the constitution, the judiciary could not interfere; on the contrary, they must accept and enforce their acts. Judge Cooley has lately said: —

"The common impression undoubtedly is that in the case of any legislation wlhere the bounds of constitutional authority are disregarded, . . . the judiciary is perfectly competent to afford the adequiate remedy; that the Act indeed must be void, and that any citizen, as well as the judiciary itself, may treat it as void, and refuse obedience. This, however, is far fromn being the fact."

Again, where the power of the judiciary did have place, its whole scope was this; namely, to determine, for the mere purpose of deciding a litigated question properly stubmitted to the court, whether a particular disputed exercise of power was forbiddenl by the constitution. In doing this the court was so to discharge its office as not to deprive another department of any of its proper power, or to limit it in tlle proper range of its discretion. Not merely, then, do these questions, when presenting tlhemselves in the courts for judicial action, call for a peculiarly large method ini the treatment of them, but especially they require an allowanice to be made by the judges for the vast and not definable ranige of legrislative power and choice, for that wide margin of considera- tions which address tlhemselves only to the practical judg,ment of a legislative body. Within that margin, as among all these legislative considerations, the constitutional law-makers must be allowed a free foot. In -so far as legislative choice, ranging here unfetered, may select one form of action or another, the judges must not interfere, since thieir question is a naked judicial one.

Moreover, such is the nature of this particular judicial question that the preliminary determination by the legislature is a fact of very great importance, since the constitutions expressly intrust to the legislature this determination; they cannot act without making it. Furthermiiore, the constitutions not merely intrust to the legislatures a preliminary determination of the question, but they contemplate that this determination may be the final one; for they securel no revision of it. It is only as litigation may spring up, and as the course of it may happen to raise the point of constitutionality, that any question for the courts can regularly emerge. It mav be, then, that the mere legislative decision will acconmplish