Constitution and Constitutional Law

CONSTITUTION AND CONSTITUTIONAL LAW.

The word constitution is in its modern sense a term which, orig inally generic, has, like the word "parliament" undergone a spe cialization of function. In the time of Cicero it (constitutio) is used indifferently for a point in rhetoric, the nature or form of the human body, and lastly, in a legal, but very wide, sense, any regulation or ordinance. In this last application it acquires ma jestic significance in the time of Justinian as a term for a law or collection of laws issued by the sovereign. Such were the many hundreds of novenae constitutiones or "novels" in which Justinian codified the law of Rome. In this plural use it makes one of its rare appearances in English history, namely in those Constitu tions of Clarendon (1164) in which Henry II. attempted to delimit the spiritual and temporal jurisdictions in this country, "the first authoritative redaction" in our history, as Pollock and Maitland call them, "of hitherto unwritten custom." But it was still an exotic word, belonging to the civil and canon law, and never took root in our legal language. Instead of it we find "Assize" or "Charter" for a law or collection of laws, to be dis placed later by the words "Statute" and "Ordinance." When it re-emerges in England in the 18th century, it is as a word used exclusively in the singular, not in the plural, and with a specialized and somewhat abstract meaning. It then came to mean in Eng lish what it means to-day, i.e., no longer any particular law, or any particular collection of laws, but the whole structure of a po litical society, its legislative and executive organs and their func tion, and, also, the rights and duties of subjects in relation to the supreme power in the State. This is as near to a general defini tion as one can get, but it is at best a loose definition for the simple reason that the term, although definitely naturalized in the domain of "Public Law," has a different meaning in different countries. How different may be illustrated by contrasting Ches terfield's statement in the 18th century that "England is the only monarchy in the world that properly can be said to have a con stitution" with De Tocqueville's declaration a hundred years later that England was the only country which had got no con stitution at all. What De Tocqueville meant was that England has no fundamental law or written instrument creating, organiz ing and defining the legislature and the executive and delegating to them certain powers. That is true enough and the term "con stitution" in nearly every modern country, except England, means just this, because they possess, and England does not, an instru ment of this character.

The Sovereign and the Constitution.

What Chesterfield meant, on the other hand, was that England was the only country in which the exercise of the power of the sovereign was subject to the control of the courts of law and of parliament. In other words by a "constitution" he meant certain legal principles restrictive of arbitrary power. And this also was true. In all other coun tries at that time the king was above the law, alike in the exec utive sphere and in the legislative. And it was just because the sovereign was above the law in every country but our own that a revolution was necessary to subjugate him to it and to create legislatures, more or less representative of the public will, to con trol him. Hence the appearance with the French Revolution in 1789, still more with the revolutions of 1848, of "written" consti tutions on the continent of Europe. Parliaments, i.e., assemblies of "estates," once universal in Europe, had disappeared every where, except in England, in the i 7th century and it was necessary to re-create them. That could only be done by a supreme act of legislation, namely a "written" constitution. So, too, with the invasion of Roman law, which England alone escaped, the will of the sovereign had become supreme over his subjects and it was necessary to concede to them "rights" which, again, could only be done by some written constitution. Such "constitutions" have nearly all originated in secession, as in the case of the United States, or in revolution as in France or, as in the case of the Treaty of Versailles, in the creation of new States by treaty. In England, owing to the continuity of her parliament and still more the supremacy of her common law (q.v.), with its doctrine that the king has no prerogatives except those which the common law allows him, no such written constitution—except during the revolu tionary and republican interval of the Commonwealth and Pro tectorate—was ever necessary. Hence the notable fact that both the substantive "constitution" and the adjective "constitutional" are unknown to English law; they are not what English lawyers call "words of art"; they have no technical meaning. Black stone in his more literary moments sometimes, but rarely, speaks of "our constitution," but the term finds no place in the rubrics of his chapters; Bolingbroke appears to have been the first to use it, and he uses it, like Chesterfield and Burke, in a philosophical sense as meaning the principles of English liberty.

The Term "Unconstitutional..

To-day the term "unconsti tutional" in England is yet more vague. It does not mean, as it does in the United States, "illegal," but unconventional, that is to say, something which, though legal, is unusual or contrary to political usage. It is "unconstitutional" for the prime minister to remain in office after a vote of "no confidence" by the House of Commons but it is in no sense illegal, for the law, which knows not the office of prime minister nor the conventional usage of the responsibility of the executive to parliament, is silent on the point. But where, as in most modern states, the constitution is embodied in a fundamental law, the executive and the legislature are, with certain exceptions, alike subject to it, are indeed delegations of it, and their proceedings, if contrary to its provisions, may be illegal in the strictest sense of the term, i.e., such as the courts will refuse to enforce. In such a case the legislature is, of course, not sovereign. In England, on the other hand, parliament, in the absence of any such "constitution," is supreme. But an Act of the American congress may be declared "unconstitutional" by the Supreme Court or rather disregarded and such a declaration, or rather such a repudiation means that it is "illegal." An Act of the British parliament, on the other hand, can never be illegal although its Acts have often been called "unconstitutional" in the sense of being arbitrary or unprecedented. This sharp dis tinction between "legal" and "constitutional," in the case of the English use ot the adjective, does not, however, extend to the use of the substantive.

The Theory of the English Constitution.

The "constitu tion" in England includes both law, i.e., common law and statute law, in so far as they deal with the sovereign's power and the rights of the subject as against it, and conventional usage. The strictly legal theory of the English constitution involves a dualism, i.e., the legislative power is in the king in parliament and the executive power is in the king in council, and each is independent of the other. But political usage or convention has developed an in formal body known as the "cabinet" which, legally speaking, is merely a meeting of certain members of the privy council, but conventionally is a meeting of privy councillors who should be, and invariably are, members of one or other house of parliament and belong to the party which is in a majority, whether an ab solute or a relative majority, in the lower house. Political usage also dictates that if this body ceases to command the confidence of a majority in the house of commons the members shall either resign their respective offices, although they are legally responsible only to the king, or shall, through the prime minister, ask the king to exercise his prerogative of dissolution and here again political usage dictates, though the law does not, that the king shall not refuse the prime minister its exercise. The legal theory, and the political usages which thus qualify it, are both included in the term "the English constitution"; so also are included all that part of the common law which recognizes and enforces the rights of the subject such as the right to a writ of Habeas Corpus (q.v.), the right to trial by jury (q.v.), and the right to sue any officer of the Crown for wrongful acts even though committed in his official capacity. This last brings out another distinctive charac teristic of the term "constitution" in England, namely, that Brit ish law knows not the distinction, so familiar in Europe, between "public law" (droit public in France, Staatsrecht in Germany) and "private law" (droit prive or Privatrecht), between law re lating to the State and law relating to private individuals. In other words so much of the English constitution as is not to be found in statute law or political usage is to be found—and indeed it is by far the larger part—in the common law. Even a right so "political," and therefore so peculiar in other countries to the domain of "public law." as the right to vote was in England as much a "private" right as the right to sue for trespass or for recovery of one's freehold. It was, except in the parliamentary boroughs, simply a right arising out of the law of real property, namely, a freeholder's right, and a returning officer who refused to allow the freeholder to exercise it could be sued in an ordinary "private" action for damages. In a word British constitutional law, if we exclude mere conventional usages, is common law, and the common law, which is "unwritten," is supreme. The differ ence between Great Britain and the United States may with some exaggeration be expressed by reversing the historic words of Article VI. of the "written" American Constitution, which declares "This Constitution . . . shall be the supreme law of the land." In England we may say "the supreme law of the land is the constitution." England's statute law does, indeed, also secrete some part of her constitutional law, but more often than not, especially in earlier times, such statutes purported merely to declare the common law, as in the case of the Statute of Trea sons, or to bond the king by a kind of contract to cease disregard ing the common law, as in the case of the Petition of Right, or to expedite the existing process of the common law, as in the case of the Habeas Corpus Acts. Other "constitutional" statutes have indeed changed the law, the most notable example being the Parliament Act (i9n) which, in effect, destroyed the legislative power of the house of lords as one of the estates of the realm.

Written Constitutions.

Far too much has been made, how ever, by jurists, particularly by Dicey, of the distinction between countries with a "written" constitution, or fundamental law, and countries without it. A written constitution can never exhaust the whole sphere of constitutional law. Such a constitution always presupposes an advanced state of society with a common law of its own, without which, indeed, the written constitution is unin telligible for its very terms have to be interpreted in the light of it. In Germany, where "written" constitutions came into existence as long ago as 1848, jurists have been quick to see this. As Hatschek (Deutsches und Preussisches Staatsrecht, I., p. 8), em ploying the German juristic distinction of "material" law and "formal" law, points out, every State, just because it is a State, has always had a constitution in the "material" sense, i.e., some common law ruling the relation between subject and sovereign. Such a "constitution" belongs to every State as the clothes belong to the body—"es gehort zu jedem Staat wie das Kleid zum, Kiirper," Without it there is no State except that "state of nature," so satirized by Hobbes, which was naked indeed. This material constitution is to be found in the customary law (Gewohnheitsrecht) even though the country knows nothing of representative institutions and the will of the monarch be supreme. A "constitution" in the "formal" sense, i.e., a written funda mental law (a Grundgesetz), may be wrested from the monarch but even if it were revoked the "material" constitution would remain. This is equally true of the United States.

In the United States.—The United States constitution is full of terms such as "treason," "trial by jury," "the obligation of contracts," all of which imply, as a condition precedent to the constitution, the pre-existence of common law, and the first two are some of the constitutional elements in the common law which the English settlers carried with them across the Atlantic. The constitutional law of America is therefore not to be found solely in the "constitution" but also in the common law. It has been said that there is no common law of the United States and that there is only the common law of the individual States. This is true enough as regards criminal law (cf. Mr. Justice Chase in U.S. v. Warrall: 1798; 2 Dallas, 384). The common law, it has been declared, could "only be made part of our federal system by legislative adoption" (Wheaton v. Peters, 8 Pet., 590, a statement which requires some qualification when it comes to the interpretation of the duties of common carriers in interstate com merce. But in the interpretation of the American constitution itself the Supreme Court has been driven to admit that the com mon law must be resorted to for the definition of terms used in the Constitution when such terms are not there defined (United States v. Smith, 5 Wheaton, 153). In this sense, and to this ex tent, the "constitution" of America itself is unwritten. Behind the framework of the formal constitution there stands the "ma terial" constitution of the English common law, without which the American constitution is but a skeleton. As is well observed by Mr. Burdick, the American constitution is not an invention but a codification. Furthermore, there has been an accretion of "conventional" usage, particularly as to the relations between president and congress, of a non-legal character in America just as there has been in England. No country can ever be perma nently imprisoned in the strait-jacket of a written constitution. Either the jacket is "stretched" by judicial interpretation—witness the immense developments, in the hands of the Supreme Court, of the Interstate Commerce clause--or it is expanded by the growth of "conventions." If it were not, a written constitution would indeed be the lethal thing of De Maistre's epigram: "Des que l'on icrit une constitution, elle est morte." (See United States section of this article further on.) The Legislature and the Constitution.—Nor, again, is the distinction in the powers of the legislature which Dicey makes between countries with a written constitution and countries with out one at all as sharp and decisive as Dicey makes it. That distinguished writer assumes, almost as a matter of course, that when a country has a written constitution, two things fol low, (I) that the legislature is "subordinate" to the constitution, (2) that statutes passed by it in conflict with the constitution are ultra vires, and, as a necessary consequence, that the courts can refuse to enforce them. But this is only true of federal constitu tions, i.e., constitutions where the legislative power is divided (and, with it, the "internal sovereignty" of the country) between a central legislature and a number of local legislatures, each su preme in its respective sphere. In such a case the central legis lature, as in the United States and in Germany, is restricted to legislation in respect of certain enumerated subjects, but in respect of them is "supreme" or as it is tersely put in the new German constitution "Federal law fractures (bricht) State law." In case of conflict, i.e., when it is a question whether the over riding federal law is within federal competence, some kind of ex ternal arbitration is necessary and this is naturally found in a court. In the case of the United States this arbitral power was, curiously enough, never expressly entrusted to the Supreme Court, it assumed it (in Marburg v. Madison, i Cranch, 137) or more truly, it inherited it from the privy council, and, even so, the court never directly declares a Federal (or State) statute ultra vires, it merely refuses to enforce it when it arises as an issue in legislation. In the new German constitution (Article 13), how ever, express provision is made for the direct reference of such conflicts to the Reichsgericht, i.e., the Supreme Court at Leipzig, which was formally invested with this "constitutional" jurisdic tion by a Reich Statute of April 8, 1921. But in a non-federal or "unitary" country like France, the existence of a written con stitution in no way implies any power on the part of the courts to declare an enactment of the legislature unconstitutional. The interpretation of the constitution is in France entrusted to a branch of the legislature, viz., the Senate, on the initiative of the Government. If the interpretation is disputed as amounting to a judicial act, the decision of the senate is treated as equivalent to a "revision" or amendment of the constitution. In that case the two chambers sitting together under the name of the "National Assembly" decide the issue. The French legislature, in spite of the existence of a written constitution, is thus in reality sovereign. It is sovereign not only in the immunity of its legislation from the control of the courts but also in its power to change the constitu tion itself. No external authority, such as a plebiscite as in Australia and Switzerland or a majority of the State legislatures as in America, is required in France to effect a change in the con stitution. The legislature has therefore the "constituent" power, and is truly sovereign. So too in Germany, alike under the old imperial constitution (Act 78) and the constitution of 1919, "the constitution can be altered in the ordinary course of legislation." The American idea of some power superior to the Federal legis lature, and external to it, in the matter of constitutional change is, as Anschiitz remarks, quite "foreign" to German public law. And ever since the decision of the Privy Council in McCauley v. the King, A.C. (192o), 691, it can no longer be said of the British colonies with their written constitutions, that their legislatures are, as Dicey said they were, "subordinate" bodies unable to pass laws which conflict with their "constitution." In that case it was held that, unless the constitution itself specifically prescribes a special procedure for its amendment, it can be amended by mere implication by an ordinary law with no more formality than "an Act for the licensing of dogs." A "written" constitution therefore in no way excludes the existence of a "sovereign" legislature except in a Federal system. It all depends on the terms of the constitution, or, to quote Lord Birkenhead's phraseology in the McCauley case, whether it is "controlled" or "uncontrolled." The Sphere of Constitutional Law.—It will be fairly obvious from what has been said above that restrictive attempts to define the sphere of constitutional law as something distinct from other branches of law are futile. It cannot be segregated, whether the constitution be written or unwritten, from the com mon law of each particular country. Hence the futility of those frequent excursions into its domain by the exponents of what is called "Political Science" who, ignorant of law, are the un licensed practitioners of this branch of learning. So far as they treat of a particular constitution they are ill-informed ; so far as they attempt generalizations from all constitutions they are beating the air. As Maitland ironically observed, "Political Science is very apt to look like sublimated jurisprudence," but it is jurisprudence without jurists, a kind of cloudy exhalation of sociology, ethics, economics, "crowd psychology," with a little ill-digested law to give it a certain density of atmosphere. There is no such thing as a "science" of State institutions even in the case of "Federalism" which, as Jellinek, himself a lawyer, points out in his Allgemeine Staatslehre (3rd ed., s. 737) is not a "gen eral concept" (Allgemeinbegri ff) at all but resolves itself into the legal study of each particular "empirical type" of Federation.

Sovereign Power and the Referendum.—One of the chief problems with which constitutional law is occupied is the defini tion of the sovereign power in the State. But it is by no means the only problem. For this reason Austin's attempt to delimit the scope of "constitutional law" is singularly unsatisfactory. He describes it in the following terms: "In a country governed by a monarch, constitutional law is extremely simple, for it merely determines the person who shall bear the sovereignty." Simple indeed is such a definition, and all too passive, for it excludes the activity of the legislature and the executive, i.e., the process of legislation, the modes in which the sovereign power is exer cised, the sanctions attendant on its exercise, the control of the courts over the executive, the "rule of law" and the whole sphere of the rights of the subject. Nor is his attempt, followed by Holland, to distinguish constitutional law from "administrative law" any happier. There is no such thing as administrative law in England in any technical sense of the term at all, nor, even if there were, would it be possible to separate the functional activity of the institutions of the State from their organic character. Such ill-nourished definitions, if accepted, would exclude, for example, all consideration of two such great instruments of the English constitution as the writ of mandamus and the writ of habeas corpus.

None the less, the definition of the sovereign power is, as has been observed, important ; and Austin's definition of it, famous for its heresy, is, although universally rejected, and rightly so, by English lawyers, interesting and, if applied to other countries than England, including certain British colonies, not quite so ques tionable as it was. He defines it as residing not in the king, lords and commons, in other words in "parliament" but as in the king, lords and the electorate. But this, to adopt the terminology of Bryce in his Essays in Jurisprudence, is to confound "political" sovereignty with "legal" sovereignty. The commons are, it is true, merely representatives of the electorate and may be called to account by the latter, but in the interval between one general election and another the participation of the commons with the king and the lords in the sovereign power is unquestionable—"the English people" as Rousseau, writing in the days of the Septen nial Act, said, "are free only once every seven years." To-day he would have said every "five." And there is nothing to prevent parliament postponing the appeal to the electorate indefinitely by prolonging its own existence. It did so in the 17th century during the Civil War, again in the i 8th century when it repealed the Triennial Act, and again in the present century when, during the World War, it lengthened its term of existence from the five years prescribed by the Parliament Act to eight. Where, however, as in Queensland and Manitoba, infected by the political experi ments of the Western States of America, British colonies have, by adopting the referendum, introduced a new factor into legislation, namely a plebiscite, it may be argued with much plausibility that the "sovereignty" has passed to the electorate. The argument, however, is not decisive, for the simple reason that, both in Mani toba and in Queensland, the legislature remains sovereign inas much as it can at any time repeal the Acts instituting the referen dum and thereby deprive the electorate of the voice in legislation conferred on it. Moreover the decision as to what bills shall be submitted to the referendum rests, in the case of Queensland, with the Government which is not bound to submit them at all (see Taylor v. the Attorney General of Queensland [1917] 23 Commonwealth Law Reports 45 7) • Where, as in the case of Mani toba, provision is made not only that bills must be submitted to the electorate but that the electorate may "initiate," as well as vote upon, legislative proposals, to which, in the event of a major ity of votes being cast for them the Lieut.-Governor shall give his assent as though the proposal had been passed by the legisla ture itself, we seem to encounter the "sovereign people" in the full sense of the word, as in the Western States of America—where such institutions had been adopted on the principle that, as Ostrogorski puts it, "the best cure for democracy is more de mocracy." But not quite ! The Manitoba Act itself still excluded Supply Bills and Appropriation Bills from the proposed referen dum, for the very obvious reason that if it lay with the electorate to vote taxes it would vote none. The legislature therefore re mained supreme in certain matters. This "Initiative and Referen dum Act" was, however, declared ultra vires by the privy council (see A.C. [1919], p. 935), on the ground, among others, that it purported to deprive the Crown, i.e., the Lieut.-Governor, of its voice in legislation. Indeed, there can be no doubt that great as the "constituent" powers of British legislatures in the Dominions are, as has been seen above, they do not include the power either of excluding the Crown as a factor in legislation or of depriving the legislature of its representative character. The legislature is internally sovereign but its sovereignty stops short of the para doxical power of destroying its own existence and substituting for it that of the electorate. The same is true of the German Reichstag under the present German constitution. That constitution is re markable for the extent to which it adopts the institution of the Referendum, not merely in the matter of revision of the consti tution but of ordinary legislation which must be submitted to a referendum if the president so decides or one-fourth of the mem bers so request, and it may be so submitted if one-tenth of the electorate so petition. But as Hatschek observes, not one of these provisions makes the popular decision (Volksentsclieid) an inde pendent source of law, and all of them require the co-operation of the Reichstag at one stage or another. The Reichstag, together with the Reichsrat, continue to participate in the sovereign power of legislation, in so far as, under a Federal system, a Federal legis lature is "sovereign" at all. The most that can be said in such cases of the Referendum is that sovereignty is shared with the electorate. Indeed it is impossible to say that the people are ever sovereign, in the full legal sense, in any country with a legislature in the real sense of the word, except where it comes to a revision of the constitution, and not always even then. The sacramental words, faithfully copied in the preamble of the Australian consti tution, with which the constitution of the United States com mences: "We, the people of the United States, in order to form a more perfect Union . . . do ordain and establish this "Constitu tion" no more confer sovereignty on "the people" in America than in Australia. This, because the people who "ordained and established" the constitution have no power to change it ; a ma jority of the State legislatures alone can do that. The same is the case in Australia, because, in spite of the fact that constitutional amendment is referred to the electorate, such amendment can only take effect if the majority of the electorate also represents a majority of the States. And as in Australia, so in Switzerland. Popular sovereignty is therefore apt to resolve itself, legally speak ing, into a myth in any organized society. It is a purely primitive idea, belonging to the days when, in the words of Tacitus, the freemen of the German tribes decided every question with a loud shout and, we may surmise, by knocking the minority on the head. We may also find the idea of popular sovereignty in the Anglo Saxon folkmote and the Landesgemeinde of the forest cantons of Switzerland : we shall find it nowhere else.

Federal Constitutions.—The sovereignty of the legislature is, as has been seen, qualified in the case of a federal system by the fact that the powers of the central legislature are limited, and can only be increased, by an external authority, namely the con stituent States, who have been, and are, the contracting parties to the federal contract. Is it qualified in the case of a unitary State? Laband, by far the most authoritative of the older gen eration of constitutional lawyers in Germany, answers the ques tion (Reichsstaatsrecht Bd. IV., pp. 5 et seqq., 1914) by saying "Yes" in the case of a monarchy, "No" in the case of a republic. To Englishmen his affirmative would seem unintelligible. Eng land is a monarchy, they would retort, the legislature is the "king in parliament" and parliament is supreme. So too, one might say, was the Landtag of Prussia from 1851 to 1919. But looking at the matter from the point of view of French and Ger man constitutional law, Laband was right. The sovereignty of the legislature in the Prussian monarchy was qualified because, to a German jurist no law, even when assented to by the king of Prussia as part of the legislature, was complete without a "sanc tion" and Laband carefully distinguishes between the sanction of the law (Gesetzbe f ehl) and the law itself (Gesetzinhalt) . Now in England no separate "sanction" is necessary to every Act of Parliament (it is an imputed misdemeanour at common law to disobey any Act of parliament, for the law imputes a command to obey it, whether the Act itself provides for a penalty or not), and the legal obligation of the Act is complete from the moment it receives the royal assent. But in Germany and in France an Act of the legislature is incomplete until a decree is issued by the head of the State to "promulgate" it. This promulgation was in those countries the exclusive prerogative of the monarch, and he could withhold it as the head of the Executive, even when he had assented to the "law" as the head of the legislature. To-day no president has replaced the king of Prussia where, by a curious anomaly, the prime minister elected by the legislature, is the only visible head of the State. But in the "Empire" (Reich), the presi dent, who has replaced the kaiser, has no power to withhold the decree of promulgation, although he may, in his discretion, sub mit the bill to a referendum ; while in France all that the presi dent can do is, to postpone the promulgation—the "acte de naissance" of the law, as Moreau calls it—by asking the two chambers to reconsider the bill, a power which, in fact, has never been exercised and would only encounter defeat if it were. Hence it is that Laband regards the sovereignty of the legislature as only complete in countries with a republican form of government.

The Sovereignty of the Executive.

So far we have con fined our consideration of sovereignty to legislative sovereignty. But in spite of Austin, legislative sovereignty is not the whole of sovereignty. There is the sovereignty of the executive, and we have authority for the distinction. Both Laband and Salmond make it. Laband treats the enforcement of a law as of equal im portance with the enactment of it, and points out that this power resides in the monarch alone, or, as we should say in England, in the "king in council" and in such of the king's servants as the Attorney General, the Director of Public Prosecutions and the police. Here we come up against the venerable principle, origi nating with Montesquieu, of "the separation of powers." This doctrine may be said to originate in that famous chapter of Montesquieu's (Esprit de Lois liv. ix. chap. vi.) in which he de scribes the ideal constitution from the point of view of political liberty as that where the legislature, the executive and judiciary are mutually independent of one another. That chapter has been much misunderstood, for he reduces the ultimate "powers" in a State not to three but to two, namely the legislature and the executive. Obviously if the judiciary were invested with a co equal and irreducible power, there could be no legislation without its consent, which is exactly what happened in France when the "Parlement of Paris," which was a court, and nothing else, claimed to control with a kind of judicial veto, exercised by way of "registration," the legislative powers of the king on the one hand, and the States General on the other; a claim which, as Aubert, the historian of the Parlement of Paris observes, had no real foundation in law or in fact, and was easily overcome by a lettre de jussion, i.e., a formal command of the king. The impor tant thing, in the interest of the liberty of the subject, is not that the judiciary should be supreme but that the judges should be independent—in other words secure in their tenure of office. Practically every country has adopted this principle ; it took root in Prussia as early as the time of Frederick the Great and in the Germany of to-day no judge can be removed from his office except by a judgment of his colleagues. Beyond this the doc trine of separation of powers has nowhere taken root with any degree of completeness except in America, where the "Fathers of the Constitution" adopted Montesquieu's theory, or what they took to be such, as if they believed in the doctrine of verbal inspiration. Hamilton's great sentence in No. 47 of the Federalist is classic : "The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether hereditary, self-appointed or elected, may justly be pronounced the very definition of tyranny." Upon this rock the American constitution is built. The Supreme Court is established, and its jurisdiction to a large extent determined, by the constitu tion itself and to that extent it is co-ordinate with the legislature and independent of it. The same holds good of Australia where the adoption of this American principle qualifies the British prin ciple of parliamentary sovereignty which otherwise prevails—the qualification was inevitable if one adopted, as the Australian Convention was determined to do, the American model of a Federal system. But even congress may regulate the jurisdiction of the Federal Courts, as it has done by the Judicial Code, and the judges are necessarily subject to the joint authority of the president and congress in that their appointment must be vested somewhere. The most striking feature of the American constitu tion is the complete separation of the executive and the legisla ture—here there is not only, as in England, a dualism in law, but a dualism in fact. On the other hand in England the legislature being omnipotent can delegate its powers of legislation to the Executive--and does so to an increasing extent—whereas in America it is a fundamental principle, resulting from the separa tion of powers and the theory that congress itself is but a dele gate of the constitution, that the Federal legislature cannot in turn delegate its power of law-making to the executive. But the Supreme Court had had to keep pace with the development of governmental functions attendant on the increasing complexity of society, and it has come to recognize as "constitutional" the devolution by congress of powers of "subordinate legislation" to commissions particularly the Interstate Commerce Commission (see Interstate Comm. Comm. v. Illinois Cent. R. R. Co. [Iwo] 215 U.S. 452). The truth is that a complete separation of powers is impossible in any highly organized political society. The Exec utive, quite apart from the powers of legislation delegated to it, in Parliamentary times, has always legislated in monarchical coun tries, just as the courts have always legislated by developing the Common Law (q.v.). Until the i7th century the king legis lated by proclamation in this country; and in some matters, such as the king's Regulations and the Orders in Council regulating the Civil Service, he—or rather his Government—legislates still, although he cannot create new offences. But in Prussia, till 1919, the relative sphere of royal ordinances and parliamentary statutes was, in spite of the constitution of 1851, a debatable subject, and Bismarck did not hesitate, in his conflict with the Prussian chamber, to fall back on an ordinance (Verordnung) when he could not procure a statute (Gesetz). The position taken up by the putative fathers of the new Reich and Prussian consti tutions of 1919 is that the executive shall have no power to make regulations affecting the rights and duties of the citizen except when empowered to do so by statute. In this sense, and to this extent, all modern executives legislate. The result is often to confer, by a draft statute, powers of a most arbitrary kind upon Government departments—even to the paradoxical extent of enabling them to make regulations inconsistent with the Act under which they are made--cf. sect. 67 (I) of the Rating and Valuation Act of 1925 and Rex v. Ministry of Health. (T.L.R., April 3o, 1927). So too judicial powers are sometimes conferred on Government departments in the interpretation of statutes with out appeal to the courts (cf. Small Holdings Act, 1908, and Ex parte Ringer 25 T.L. Rep. p. 718). Such developments are objec tionable, not because they offend against any abstract theory of separation of powers, still less because they are unprecedented, for there was a time when the king's council legislated, admin istered and judged, and until 1888 (and to some extent still) the lower organs of the governmental hierarchy, namely the Justices of the Peace, were both judges and administrators. The real ob jection is that no Government department should be judge in its own cause, or act as a legislator without the check of popular control. The great constitutional problem in most countries to day is how to subjugate these encroachments of the bureaucracy to the continuous control of the courts on the one hand and of the legislature on the other.

The Elasticity of Constitutions.

It will be apparent from the foregoing that there are no fixed principles in constitutional law. Here, as elsewhere, the life of the law, to adapt the words of O. W. Holmes, "is not logic but experience." Constitutional law is not a matter for categories. Some writers have indeed distin guished constitutions into "rigid" and "flexible," but even the most rigid of constitutions, such as the Federal type, have their elasticity. The "War Power" under the American constitution has, under the inexorable test of the World War, proved itself an instrument capable of completely transforming, for the time be ing, all constitutional limitations on the legislative power of Congress, enabling, as it has been held to do, congress to regulate prices, requisition ships, control railroads, and even temporarily to enforce "Prohibition" (cf. Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 1919) before the Constitution had been amended. This magic invocation of the "War Power" completely upset the carefully devised balance of powers between the Federal and the State legislatures. Exactly the same thing happened in the federally constituted Dominions of the British Empire—in Canada (cf. Fort Frances Pulp Co. v. Manitoba Free Press Co., A.C. [1923] p. 695), and in Australia (cf. Farey v. Barrett 21 C.L.R. 433) where the "Defence Power" was held, like the "War Power" in America, to cover, in time of war, all kinds of exten sions of Federal powers which, in time of peace, would be "a trespass on the reserved powers of the States." In constitutions, as in other things, it is the letter that killeth and the spirit that give th life.

In no department of law has there been so much conscious imitation as in constitutional law. It is, indeed, the only depart ment of law in which nations have deliberately borrowed from one another on a large scale, and it is fashionable to say that England is the foster-mother of the constitutions of the world. A very little reflection should, in the light of what has been written above, serve to show that this is only very partially true. No country could borrow our "constitution" without first destroying its com mon law and adopting our own. Such a repudiation of its historic past would be impossible. It is only that part of the constitution which relates to the legislature, in particular the bi-cameral sys tem and the law and custom of parliament, that has been deliber ately copied from England. Here, indeed, the transcription has been great. When England, almost alone among the countries of Europe, escaped the shock of the French Revolution, the pres tige of her constitution became immense. Montesquieu had al ready singled out the English constitution for the admiration of mankind as the one polity which secured the liberty of the sub ject—and in his time he was right. After the French Revolution, men set themselves everywhere in Europe to follow Burke's ad vice and "study the British constitution." From Guizot to Gneist a whole school of European thinkers set themselves to under stand it, and indeed to transplant it. And yet even here it may be said, paradoxically enough, that it was only possible to imitate the English constitution in proportion as it was possible to mis understand it. No constitution will ever bear transplantation from one political climate, i.e., from one legal atmosphere, to another. It is always an exotic. Of no institution is this more true than of our own Second Chamber. Hamilton counselled the adoption of a Second Chamber in the American constitution by analogies drawn from the functions of the house of lords—"a most noble institution" he called it—as a council of the Crown which, at the time he wrote in the Federalist, it appeared to be but no longer was. The result is that the American senate has acquired an ascendancy in the American legislature which, ever since the Re form Act took the constituencies out of the pockets of the peers, the house of lords has definitely lost, and no two institutions could be more unlike. Exactly the same divergence has occurred in the case of another "second chamber" which was deliberately adopted from our own country; the French senate—the creation of the Monarchists—has become the creature of the Republicans by that strangest of political ironies by which, as a classical authority tells us, "men realized a Republic while dreaming of a monarchy." None the less, the house of lords stood in the eyes of continental jurists for a principle. namely the division of the legislative body into two chambers, of which bi-cameral principle Esmein remarks, with perfect truth, that it is "une institution presque generale chez les peuples qui pratiquent le gouvernement representatif" and, equally truly, that "toutes les nations qui ont adopte ce systeme Pont directement, ou indirectement, em prunte l'Angleterre." But beyond the mere "division" of the bers of European countries exhibit little or no uniformity of type and in their constitution no resemblance whatsoever to the house of lords—it would have been necessary to borrow our law of incorporeal hereditaments, in other words our law of peerage, be fore such a resemblance could have been achieved. Another insti tution which was copied with some fidelity from England was the principle of "responsible government." Here, however, the transcription came much later. Bef ore 1919 responsible govern ment did not exist in Germany. In France, indeed, it has existed ever since 187o, and at intervals before that date, and yet here again it has only been possible to adopt it by transforming it. Hanotaux describes the French cabinet in terms borrowed from Bagchot's account of the English analogue when they have already ceased to apply to the original. The most definitive feature of cabinet government in England to-day is the prescrip tive right of a prime minister to exercise the prerogative of dis solution, but a French prime minister has no such power, and the cabinet in France, as also in post-war Germany, is subject to a degree of control by committees of the legislature which would be inconceivable in this country.

There are thus no general principles, common to all mankind, in constitutional law. If there were, it would partake of the char acter of International Law, whereas its character is almost as national as common law itself. Many a revolution, and with it the apparent "adoption" of an exotic constitution may appear to contradict this but, in the long run, nations always "revert to type." BIBLIOGRAPHY._(*denotes the most modern and reliable authority). Bibliography._(*denotes the most modern and reliable authority). I. COMPARATIVE CONSTITUTIONAL LAW : A. Esmein, Elements de droit constitutionnel francais et compare* (8th ed., 1928) ; G. Jellinek, Allgemeine Staatslehre (3rd ed., 1914) ; L. Duguit, Traite de droit constitutionnel, 5 vols. (1921-25) .

II. (a) ENGLISII CONSTITUTION: W. R. Anson, Law and Custom of the Constitution* (1886-92, 5th ed., 1922) ; A. V. Dicey, The Law of the Constitution (1885, 5th ed., 1915) ; Hy. Hallam, Con stitutional History (182 7 ; with introd. by J. H. Morgan, 191 I) ; W. Bagehot, The English Constitution (1928 ed. with introduction by Lord Balfour) ; W. S. McKechnie, Magna Carta (1914) ; J. H. Morgan, Remedies against the Crown (1926) ; also the Constitutional Histories of W. Stubbs (188o), T. Erskine May (1861) and F. W. Maitland (1908). For sources, see the collections of Charters, Writs, Statutes, etc., by W. Stubbs (1866) , G. W. Prothero (1894) , S. R. Gardiner (1899) , D. J. Medley (Iwo), C. Grant Robertson 0904), etc. For cases see E. C. Thomas and H. H. L. Bellot, Leading Cases in English Constitutional Law (6th ed., 1927) . (b) Valuable contri butions to the literature of the English constitution have been made of late years by American writers, notably G. B. Adams, Constitutional History of England (192I) ; J. F. Baldwin, The King's Council (1913) ; C. H. Mellwain, The High Court of Parliament and its Supremacy (1913) ; A. L. Lowell, The Government of England (1908). (c) THE DOMINIONS AND INDIA: W. H. P. Clement, The Law of the Canadian Constitution (3rd ed., 1916) ;* D. Kerr, The Law of the Australian Constitution (1925) ;* A. Eggar, The Government of India (Rangoon, 1919) ; A. B. Keith, Responsible Government in the Dominions (2nd ed., 1928) ; J. H. Morgan, The Law and Constitution of the Empire (1928).

III. THE FRENCH CONSTITUTION: A. Esmein, op. cit.;* F. Moreau, Iii. THE FRENCH CONSTITUTION: A. Esmein, op. cit.;* F. Moreau, Précis elementaire de Droit constitutionnel (1921) ; H. Barthelemy, Traite de Droit administratif (xith ed., 1926) ; M. Hauriou, Precis de Droit constitutionnel 0923).

IV. THE GERMAN CONSTITUTION:

The standard work on the Con stitution of the Empire before the Revolution was Dr. P. Laband, Das Staatsrecht des Deutschen Reiches (5th ed., 1913),* a book the authority of which is by no means obsolete. On the new "Reich" constitution of 1919 see J. Hatschek, Deutsches and Preussisches Staatsrecht, 2 vols. (1922).* For text of the "Reich" constitution (with commentary) see G. Anschutz, Die Verfassung des Deutschen Reiches (1921), also A. Arndt, under the same title (1923) . For the 1919 constitutions of the German States see, for Prussia, J. Hatschek, op. cit.; for Bavaria, Saxony, Wurtemburg, Baden, Hesse, Mecklen burg, Thuringia, vol. IX. of Jahrbuch des oeffentlichen Rechts (192o) . For German Administrative Law—C. Dieckmann, Verwaltungsrecht (1922); G. Meyer, Lehrbuch des Verwaltungsrecht (1893) .

V. THE AUSTRIAN CONSTITUTION: H. Kelsen, "Die Verfassung Deutsch-osterreichs" in Jahrbuch des oeffentlichen Rechts, vol. IX.

(1920).* VI. THE UNITED STATES: (a) J. Story, Commentaries (9 books, ; J. Bryce, American Commonwealth (191o) ; T. M. Cooley, Constitutional Limitations (1868) ; C. K. Burdick, The Law of the American Constitution (1922) ; A. C. McLaughlin, The Courts, The Constitution and Parties (1912) ; M. I. Ostrogorski, Democracy and the Party System in the U.S. (1910) ; Woodrow Wilson, Congressional Government (1885, 1914) ; J. W. Burgess, Recent Changes in American Constitutional Theory (1923) ; E. Freund, Administrative Power over Persons and Property (1928). (b) For the constitutions of the different American states and recent changes therein, see W. F. Dodd, The Revision and Amendment of State Constitution (191o) ; C. A. Beard and B. E. Schultz, The Initiative, Referendum and Recall (1912).

VII. The best and most recent collection of texts of Modern ConVii. The best and most recent collection of texts of Modern Con- stitutions, containing all the more important, is the Select Constitutions of the World (Irish Stationery Office, Dublin, 1922). (J. H. Mo.) The term "Constitutional Law" has, in the United States, the restricted meaning of the law that is handed down by courts in construing and applying the provisions of written Constitutions, State and Federal. It is not commonly used to embrace the po litical practices of departments of Government or the legislation and the executive action in the exercise of the powers conferred by Constitutions. In the United States as in England there are cus toms and conventions which influence or control the relations between the different departments of Government and are there fore part of the fundamental law of the land. In a broad sense they belong to the realm of constitutional law. The narrow use of the term in the United States is due to the fact that the judicial interpretation of Constitutions controls constitutional develop ment to an extent unknown in any other country.

State and Federal Constitutions in the United States not only distribute powers of government but contain restraints on gov ernmental action in favour of individual liberty and property. The Federal Constitution restricts State as well as national action. Some of its restrictions on State action are for the purpose of leaving the field clear for national authority others are to leave individuals free from State coercion. All these restrictions are interpreted and applied by courts. State courts are final authori ties on the application of State Constitutions to State executive and legislative action. The U.S. Supreme Court is the final author ity on the application of the Federal Constitution to national and State legislative and executive action.

Strangely enough this power of the courts to interpret and enforce constitutional clauses is not explicitly granted in American Constitutions. It has been inferred by the courts from the exist ence of the constitutional restrictions and the duty of courts to apply in lawsuits the higher law of the Constitution against the inferior law of the legislatures whenever the courts find a conflict between the two. The exercise of the judicial power is confined to lawsuits, though in some States there is the practice of securing advisory opinions from the judiciary upon the request of the gov ernor or the legislature. Such opinions may indicate what the court would do if legislation should come before it in its judicial capacity, but it is not strictly a binding adjudication of constitu tional law.

Requirement of Due Process.—The powers of the national Government are dependent upon grant in the Federal Constitution and any statute of Congress may be questioned in the courts on the ground that the Constitution did not confer the authority to enact it. Thus when Congress imposed an additional tax on the net income of employers who made use of the labour of children under designated ages or beyond designated hours, the Supreme Court held that the detailed enumerations in the statute indicated clearly that it was in substance a regulation of child labour rather than a tax, and therefore was not within any power conferred on Con gress. An earlier statute of Congress which prohibited the inter State transportation of products from factories in which children worked was also held to be a regulation of the manufacture rather than of the interstate commerce and therefore an encroachment on the reserved powers of the States. These illustrations indicate that the question whether a statute is constitutional may be a very debatable one which the court answers without any clear guidance in the language of the Constitution. This is even more apparent when the courts are called upon to decide whether statutes are void because they deprive persons of liberty or prop erty without due process of law. The requirement of due process is not confined to the procedure by which law is made or enforced.

but is held to apply to the substance of the command or the pro hibition of a statute. A statute violates the requirement of due process if it comes within the judicial condemnation of arbitrari ness. The due-process clauses in State and Federal Constitutions set no standard by which to determine what is arbitrary and what is reasonable. The courts set the standards as well as apply them. Since the Federal Constitution subjects both State and national legislation to this test of the judicial conception of due-process, the U.S. Supreme Court may in cases properly before it annul for undue harshness not only statutes of Congress but acts of State legislatures and ordinances of municipal councils.

This power of courts in the United States to annul statutes be cause, to the judicial mind, they seem unreasonable, is.peculiar to the American system of government. It differs from the executive veto power only because the opportunity for judicial action must arise in an actual lawsuit and because the courts practice a degree of self-restraint in positing the limit of reasonableness. Courts undoubtedly sustain as constitutional many statutes for which they would not vote as members of the legislature or would not approve as governor. None the less, it is apparent from the actual results of the judicial decisions that in many instances the controlling element in judicial annulment of statutes is the aversion of a majority of the court to the policy of the legislation before it. A striking illustration of this is the decision of the U.S. Supreme Court by a five to three vote that an employer is denied due process of law if compelled to pay women employes a living wage so long as he retains them in his employ. This question came before 45 judges of State and Federal courts, of whom 35 thought the legislation constitutional and ten thought it unconstitutional. The negative opinion of five out of nine justices of the Supreme Court outweighs the affirmative opinion of 35 judges and annuls minimum wage legislation both by Congress and by State legisla lature. No such legislation can be enforced until the majority of the Supreme Court changes its mind or until there is an amend ment to the Federal Constitution.

At one time the Supreme Court held that a State may not re strict hours of labour in bakeries to ten a day, but later a ten-hour law applying to all factories was sustained. The court has allowed the States to prescribe the minimum weight of loaves of bread but prohibited them from fixing maximum weights in order to prevent confusion. The States may regulate employment agencies in a number of ways but may not forbid private agencies to accept fees from employes seeking work. While in an emergency land lords may be restricted in the rents charged, ticket scalpers may not be forbidden to charge more than 5o cents in excess of the box-office price.

More numerous are the decisions sustaining State regulatory laws. Many trivial objections are brought to the Supreme Court year by year to meet with merited rejection. Among the more important legislation to find judicial approval are laws requiring banks to contribute to a guarantee fund to secure the safety of deposits in all banks, laws substituting the system of workmen's compensation for the common law of liability to injured employes and laws establishing a zoning plan which designates areas in which manufacturing or commerce is forbidden and which excludes apartments or two-family houses from certain residential districts.

Control of

Taxation.—Questions raised by tax laws of the States and of the United States bring many constitutional issues before the courts. Most important is the issue of jurisdiction, since it is held to be a denial of due process to tax persons or property not subject to the jurisdiction of the taxing authority. The equal-protection clause of the i4th amendment is a safeguard against unjustified discrimination in imposing taxes, and the courts have to pass on the question whether it is reasonable to impose special taxes on special enterprises, to vary the rates on different kinds of property, to impose progressive rates on inheritances or incomes or to indulge in eccentricities in assessing property. While the Supreme Court has been liberal in allowing variations in the tax systems of the States, it is not infrequent that a discrimination is held to be without justification.

Under the canon that a tax is unconstitutional unless it is levied for a public purpose, the courts review the propriety of the enter prises into which public moneys are put. The Supreme Court has held the States to rather strict account in their various efforts to appropriate money in aid of private enterprises conducted by private corporations or by individuals, but has shown liberality in allowing States and cities to go into businesses that compete with private undertakings. The North Dakota enterprise of oper ating State banks, State grain elevators and State home-building agencies was sustained by an unanimous Supreme Court, and there seems little likelihood that any business conducted by States or cities will be declared unconstitutional under the 14th amendment. The spending power of the United States may go even far ther, both because of the difficulty of getting any complaint before the courts for consideration and because of the latitude which the Supreme Court has shown toward contributions by the United States in aid of individuals.

Owing to the constitutional requirement that all direct taxes levied by the United States must be apportioned among the several States in accordance with their population, there has arisen the important question of what is a direct tax. At one time the Supreme Court announced that it was doubtful whether any tax is a direct tax except capitation taxes and taxes on land. This, however, was receded from, and the court held that income taxes are in substance direct taxes when levied on income from prop erty, thereby overruling an earlier decision which had sustained the Civil War income taxes. This change of judicial front led to the adoption of the i6th amendment which relieves income taxes from the requirement of apportionment among the States. This makes a constitutional issue out of the question what is income and what is capital. The Supreme Court has laid down that income from capital must be a gain derived from capital and separated there from. It held, therefore, that a stock dividend is not income, be cause such a dividend withdraws no assets from the corporation to turn over to the stockholder. Some payments by one corpora tion to another have been held not income because the two cor porations though separate in form were regarded as identical in substance. All genuine dividends by which a corporation pays corporate assets to a distinct corporation or to an individual stockholder are treated as income, even though in fact they may represent no economic gain to the recipient, because he paid for his stock a price determined by the expectancy of the dividend.

Other Federal taxes held to be indirect taxes are customs duties, excises on doing business in corporate form or in special kinds of business like extracting oil, manufacturing tobacco or liquor, making oleomargarine, and taxes on estates or legacies. The constitutional requirement that duties, imposts and excises shall be uniform throughout the United States is construed to re quire only geographical uniformity. The United States may there fore impose progressive rates on incomes and inheritances and may select the enterprises it will tax and those it will exempt about as whimsically as it chooses. The smoker and the motorist and the theatre-goer still suffer from the incidence of Federal excises which are not applied to manufacture and sales generally. The Federal customs tariffs have from the beginning been discrim inatory, and there is no judicial doubt as to their constitutionality, notwithstanding contrary constitutional doctrine occasionally an nounced in political party platforms.

Eminent Domain.

Taxation and regulatory legislation bring to the courts most of the cases involving constitutional issues. There is also the power of eminent domain under which the Gov ernment takes private property for public use, or authorizes such taking by railroads and other enterprises, privately owned and managed, but regarded as quasi-public. In every case it is a judicial question whether the taking is for a public use and whether the compensation offered is just. This power of eminent domain must be distinguished from the police power under which noxious activities may be suppressed without compensation. The injury from a police prohibition may be greater than that from an emi nent domain injury such as the obstruction to light, air and access caused by the erection of an elevated railroad in the highway, but for the latter there must be compensation, while for the former there is no redress. The theory is that the police power is confined to the suppression of what is harmful, while the power of eminent domain causes an injury by actually taking title to property or preventing the full enjoyment of it. These constitutional questions as to the propriety of exercises of the powers of police, taxation and eminent domain arise under broad constitutional clauses which leave the courts fairly free to apply such canons as they choose. In addition to these broad limitations there are in the Federal Constitution a number of more specific restrictions applying mainly to the action of the National Government. Similar clauses in State Constitutions restrict the action of State authorities. Pro hibitions against ex-post-facto legislation, against laws impairing the obligation of contracts, against unreasonable searches and seiz ures, against compulsory self-incrimination, against cruel and unu sual punishments and against conviction and imprisonment except after indictment by grand jury and trial by petit jury are con tained in the Federal Constitution and in many State Constitu tions. Even these specific clauses leave to the courts a consider able latitude in interpreting them, and from year to year novel questions arise which provoke contrariety of judicial opinion. Many State courts allow the use of evidence obtained by wrong ful searches and seizures though the Supreme Court holds that the introduction of such evidence amounts to compulsory self -incrim ination. On the whole, the Supreme Court applies these restric tions on Federal action more rigidly than State courts apply cor responding restrictions on State action.

These specific clauses designed to keep governmental action* within the limits of propriety arose out of historic abuses from which the colonists deemed that they had suffered. They derive from English precedents and were regarded as guarantees of the historic rights of Englishmen. They have, however, been of rela tively less importance in American constitutional law, partly per haps because their monitions have commonly been heeded, but largely because they are confined mainly to modes of executing the laws while the due-process and equal-protection clauses apply to the substantive commands of legislation. Judicial control of the methods of governmental action is of minor importance corn pared with judicial control of the sphere of governmental action. These broad constitutional restrictions in favour of individual liberty and private property put it within the power of the judi ciary to impose the judicial conception of the proper scope of governmental activity upon the contrary conceptions of legisla tures and electorates, except as these agencies act by way of con stitutional amendment. It is this far-reaching power of the courts to set limits to the ends to be sought by legislation that makes American constitutional law a unique phenomenon in the process of government.

Federal System.

Since the Federal Constitution ordains a Federal system of government, it is necessary to have some organ vested with authority to restrict the States and the nation to their respective spheres. The Constitution declares itself to be the supreme law of the land, and directs State judges to disregard State statutes that are in conflict with valid exercises of national power. This is ample warrant for the power exercised by the Supreme Court to declare State statutes invalid as encroachments on national authority and to declare national statutes invalid as encroachments on State authority. The States do not look to the Federal Constitution as the source of their powers. They have all powers of government not denied to them by prohibitions in the Federal Constitution or by inference from grant of competing powers to the National Government. Since many of the clauses granting power to the National Government do not explicitly make the national authority exclusive, the Supreme Court has to deter mine for itself whether an exercise of State power is consistent with the possession of a similar power by the United States or with an exercise thereof.

For half a century the Supreme Court was uncertain as to whether the grant of power to Congress to regulate interstate and foreign commerce should be construed as a negation of State power over such commerce. Then it decided that no single answer could be given to the question. In some ways and for some pur poses the States may regulate interstate commerce and in other ways and for other purposes they may not. Though the court has framed formulae for marking the division between what the States may and may not do, the formulae are not sufficiently ex plicit to be much more than baskets into which to put the decisions after they have been reached. Thus there comes bef ore the Su preme Court an infinite variety of problems each with peculiarities that leave each case to turn pretty much on its own facts. The only general rule that can be laid down is that the States may regulate interstate commerce somewhat but not too much, and this is so general that it does not give much guidance.

State police power has been allowed to forbid the exportation to a sister State of dead game, green lemons and water from running streams, but not natural gas or oil. States may prevent the entrance of oleomargarine coloured to resemble butter but not of cigarettes or intoxicating liquor, except as authorized by Congress or by the i8th amendment. States may requite some interstate trains to stop at some cities but not other interstate trains at other cities. States may regulate interstate ferry fares but not interstate railroad rates. What the court does is to com pare the need of the State for the local regulation with the need of the nation for interstate commerce measurably free and unfet tered, and to decide in each case which need seems to be the greater. As cases accumulate, some more general canons develop, and standards appear to aid in deciding cases that arise later.

Regulation of Commerce.

State taxation is a form of regu lation which is said to be invalid when applied to interstate commerce. The doctrine is better expressed that the States may not tax interstate commerce "as such." They may, by taxes on property or on net income, take toll from the economic fruits of inter-State commerce, since such taxation is not regarded as a burden on the commerce itself. The decisions in this field of constitutional law have often seemed erratic, and lower courts have frequently confessed or proved their inability to discern the purport of Supreme Court distinctions. If we look at the results of the Supreme Court decisions we find that in economic fact the States are allowed to tax interstate commerce in ways that afford adequate safeguards that this commerce will not be bur dened more heavily than property and business generally.

This work of umpiring the Federal system without any clear guidance in the language of the Constitution is a work that the courts cannot escape if the Federal system is to continue. The Constitution for the most part contents itself with broad outlines and eschews details. Had it done otherwise, it could hardly have lasted so long with so little formal amendment. In effect it left to the judiciary the work of drafting details which the framers wisely failed to do. Thus the courts are year by year makers of the Constitution in the sense of the Constitution that actually controls. Constitutional law in the United States is continuous Constitution-making by judiciary. In conventional theory, con stitutional law is the interpretation of the language of the Consti tution, but in plain fact it is to a large extent a law created by the courts from considerations of statesmanship and with but little restraint or direction in the language of the written instrument. The written instrument is but a small part of the real effective Constitution. The actually controlling Constitution is in large part the constitutional law that the courts have made in the name of the written instrument. (T. R. P.)