Page:Yale Law Journal - Volume 27.pdf/37

Rh omnipotent, the state created by it can only make such laws as the community has authorized the state to make, and that the state cannot enact laws to effectuate a public ideal unless the community has authorized it to make them. The failure to realize this fact lies at the root of most of the honest criticism to which the courts have been subjected for holding statutes unconstitutional. It is true that in some cases these statutes were calculated to promote the well-being of the human race, and to promote it in the way the community approved; but in most cases it is also true that these statutes were in conflict with some one or more of the provisions of the constitution. In other words, while some one was to blame for the failure of some of these statutes, in most cases that some one was the community. In short, it is the community and not the state in which the power to make laws is vested. Since this is so, the common saying that if the state were destroyed, the law would perish, is in no sense true. The history of Europe since the sixth century makes this clear; for at that time the Roman Empire of the West was overthrown, but the civil law is still the common law in all or nearly all parts of Europe where those who evolved the ideals it was made to effectuate resided.

The history of the United States tends to the same conclusion, for the state perished when the thirteen colonies separated from Great Britain; but the only noticeable effect its destruction had, in so far as law was concerned, was that there was no machinery to enforce it until the colonies created new corporations for that purpose. The law and the state, therefore, are at one and the same time the tools the community makes to effectuate its ideals, and the things without which it cannot exist.

In short, as will appear more fully later, public ideals are emergent facts incident to the evolution of every community, while the law and the state are the means it employs to effectuate them. While law is made by a community and not by individuals, it is in a sense true that it is something a man carries with him wherever he goes. What he carries, however, are the ideals the law is intended to effectuate; and that explains why a colony always adopts the laws of the fatherland as its laws; for they are intended not only to effectuate the colony's ideals, but to effectuate them in the way it approves. That is all that is intended when it is said that our Anglo-Saxon aLncestors brought their law with them to Britain, or that our British ancestors brought their law with them to America.