§ 140. Such cannot be the true meaning of the Constitution. Our fathers never prepared for us such a mockery of government. No one but an impracticable theorist or a headstrong dogmatist would ever have thus read and understood the organic law. The calm good sense of the people has led them to the true doctrine, and in that they rest content, and in that their rulers must also continue.

$141. There must, therefore, be some judge, some single umpire, to whose arbitrament the government as well as the citizen are subject.

The very nature of the whole Constitution as a written grant of certain limited powers, as well as definite provisions of that instrument, show that this umpire can only be the Judiciary. The American Constitution is not, like that of Great Britain, traditional and elastic, consisting only in the acts and precedents of Parliament, which that legislature may either follow or avoid. It is a fundamental statute of the whole people, passed by them in their organic capacity, binding upon themselves and upon all the agents which they have set up and clothed with limited functions. Beyond this statute neither Congress nor President can lawfully go; going beyond, their acts are nullities and not laws. This is a position universally conceded.

§ 142. Now, it is a part of the essential province of the Judiciary, exercised without question not only by the courts of Great Britain and of the United States, but by those of every country possessing a systematic jurisprudence, to explain, expound, construe, and interpret statutes. It is their duty to determine what rights and obligations arise from these written declarations of legislative will; to declare upon whom and to what extent they confer rights, and upon whom and to what extent they lay obligations. It is a part of the same function which empowers the courts of this country to adjudicate upon the written constitutions of the nation and of the states. It is true that the jurisdiction is more momentous, more fraught with consequences for good or evil, demanding more ability, learning, and integrity, than the mere interpretation of ordinary statutes; but only so because the parties to

be affected are not simply private individuals, but organized governments; the rights and obligations to be ascertained and enforced are not those which belong to or rest upon separate citizens, but those which belong to and rest upon the constituted rulers. There is no difference here in kind, but in degree.

§ 143. It is true that the courts of Great Britain do not possess this high attribute, but only because there is no written. British constitution superior to Parliament. The The powers of that legislature are not limited; the constitution is, in effect, what Parliament may at any time pronounce it to be. It is not possible, therefore, that a question should arise whether, in the passage of any statute, Parliament has exceeded its powers. In our civil polity, this jurisdiction of the Supreme Court plainly results from the very nature of our organic law as a fixed written statement and enumeration of certain rights and powers conferred upon the general government; from the fact, in short, that it is a fundamental statute, which must be expounded and interpreted by the Judiciary in the same manner and for the same reasons as any other enacted law.

§ 144. But we may go beyond the general nature of the whole instrument, and refer the power of the Supreme Court as final arbiter to express provisions of the Constitution which recognize or create such a function. Article VI., Section 3, declares that "this Constitution, and the laws of the United States which shall be made in pursuance thereof, . . . shall be the supreme law of the land." It was shown in a former chapter that the term "laws of the United States," in this section, is not confined to statutes of Congress, but includes every thing which has the binding efficacy of law, the unwritten or judicial as well as the written or enacted; and therefore embraces the decisions of United States courts upon subjects which are specially, exclusively, or finally committed to their jurisdiction.

In respect to some matters, the national Judiciary has an exclusive, or at least a final, jurisdiction growing out of the very character itself of the subjects adjudicated upon. In

1 See § 99.

respect to other matters, the same courts have a jurisdiction. neither exclusive nor final, but concurrent with that of the state tribunals, resulting not from the character of the subject adjudicated upon, but from the situation of the parties to suits. brought before them. Of the first class are questions in regard to admiralty, to ambassadors, and many others; of the latter class, are questions touching ordinary private rights of ownership, of contract, and the like, when the parties are citizens of different states. Now, the decisions of the national Supreme Court involving subjects of the former class are "the supreme law of the land;" and, in rendering its judgments, that tribunal is always guided by its own convictions of what the law of the United States is or ought to be. On the other hand, its decisions involving subjects of the second class are not the supreme law of the whole land, but expositions of the local law of the particular state in which the controversy arose, and, in rendering them, the court always assumes to follow that law. Thus, in a suit between parties residing the one in Ohio and the other in New York, concerning lands in the lat ter state, the court would adopt and enforce the rules already settled by the legislature and the judiciary of New York.

§ 145. Article III., Section 2, declares that "the judicial power of the United States shall extend to all cases in law and equity arising under this Constitution and the laws of the United States." Cases of this kind which arise under the Constitution clearly belong to the first of the above-named classes. The considerations referred to in the former portion of this chapter apply here with peculiar emphasis. Over these cases the national tribunal has final control. However much the state courts may primarily adjudicate upon the same questions, their conclusions may be reviewed and set aside by the Supreme Court of the United States. Its judgments, therefore, giving construction and interpretation to the Constitution, are "laws of the United States made in pursuance of the Constitution," and, as such, are the "supreme law of the land;" and, if thus paramount, they must control the Execu tive and the Congress as well as private citizens.

§ 146. It might be urged that, if the national Judiciary are

to be entrusted with the capacity to decide in a final and authoritative manner upon the meaning of the Constitution, and the powers thereunder which may be wielded by the government and by the states, their interpretation would be fixed, unchangeable, unyielding to the demands of the people's progressive development; that the judicial habit of mind is such, so affected and guided by precedent and by technical methods, as to unfit them for the duty of giving construction to an instrument entirely political. There is no truth in this objection. The courts do yield to the pressure of the popular will, do move with the popular progress, slower perhaps than legislatures and Presidents, but as certainly and as efficiently. In truth, the independent judiciary in England and the United States have been the most important instruments in developing the private law so as to keep it commensurate with the wants of an advancing society. Old political precedents may be as easily disregarded as those which affect the personal rights and duties of the citizen. But it is true that the movement of the Judiciary will be generally more slow and uniform than that of legislatures and executives. This fact, instead of being an objection, is a consideration of great weight in favor of giving to the national Supreme Court the function of interpreting the Constitution. That instrument, as the organic law of the whole people, is the source of all other legislation. Its meaning should be measurably fixed and certain. Congress may readily and frequently change its policy; its work may be done under the influence of a momentary pressure; it may commit mistakes which require speedy amendment; and the consequences, though evil, are transitory; they do not reach to the very foundation of the political structure. But rapid and sudden alterations in the construction of the organic law, assumptions of powers one day which are denied the next, affect the entire body-politic; they place every citizen in a state of constant uncertainty as to his rights and duties; they produce a condition of partial anarchy. England has its traditions, its social classes, its reverence for the past, to give steadiness to political progress. We have rejected these as inconsistent with our republican institutions. If we also reject the Judi

ciary as a controlling element in our civil polity, we shall be left without any thing to give stability to the administration of affairs, to render the growth which all desire, healthy and permanent, the progress continuous and sure.

§ 147. But it is sometimes objected with more plausibility, that to concede the attribute of finally and authoritatively interpreting the Constitution to the Supreme Court, would be to exalt the Judiciary above both the other departments, to make it, practically, the only law-giving power. This objection, is, however, based upon an entire misconception. The function of the court is essentially a secondary one, inferior in every respect to that belonging to Congress. It cannot move until the legislature has acted. It cannot pronounce beforehand upon the validity of a proposed measure. It cannot proceed directly against the other departments. It must wait until a 66 case be brought before it by litigant parties, and as such case may involve a construction of the Constitution, the rights and duties of these parties cannot be ascertained and declared without passing upon the meaning of the fundamental law. Important, therefore, as is the function in question, it is intrinsically subordinate to those of the legislature and the Executive. It should be remembered, also, that the Supreme Court, as a distinct and co-ordinate department, was created, and the judicial powers which it may exercise, were conferred, by the same sovereignty that created the legislature and the Executive, and endowed them respectively with their political capacities. The people could ordain and establish such agents as they pleased, and distribute functions in the manner which seemed to them best. Each department rests upon the same foundation; each wields an authority granted by the same giver; and the action of each within its appointed sphere cannot be regarded as an infringement upon the prerogatives of the others.

§ 148. I have purposely thus far refrained from citing any judicial authorities in support of the position that the national Judiciary is the final arbiter as to the meaning of the Constitution. In fact, the whole history of the Supreme Court is an authority. Every case involving a construction of the Con