hasty or unjust action by placing their representatives under the restriction of a permanent law. It is the guarantee of the majority, who, when threatened by the impatient vehemence of a majority, can appeal to this permanent law, finding the interpreter and enforcer thereof in a court set high above the assaults of faction." ("The American Commonwealth," vol. 1, p. 266.) And Sir Henry Maine has told us that the success of this experiment has blinded men to its novelty. "There is no exact precedent for it either in the ancient or in the modern world. The builders of constitutions have of course foreseen the violation of constitutional rules, but they have generally sought for an exclusive remedy, not in the civil, but in the criminal law, through the impeachment of the offender. And in popular governments, fear or jealousy of an authority not directly delegated by the people has too often caused the difficulty to be left for settlement to chance or to the arbitrament of arms." ("Popular Government," p. 218.) So it has been remarked by Sedgwick that "the federal judiciary as a matter of fact has played for more than a century exactly the part assigned to it by the framers of the Constitution. It has been powerful by weight of reasoning, it has been independent in the exercise of power, and it has been uncorrupted. It has vindicated the Constitution, and been a wonderful proof of what human contrivance and forethought can do in directing the operation of government through the play of ordinary motive in such a way that it shall prove responsible to the people for the efficient performance of

the work assigned to it." ("The Democratic Mistake," p. 106.)

And again, in this as in other respects, our federal Constitution has received the tribute of "the sincerest form of flattery." The form of flattery." The power and duty to adjudge laws void if contrary to the Constitution are vested in the supreme judicial tribunals of Argentina, Brazil, Colombia, Cuba, Mexico, Nicaraugua, Peru, Uruguay, and Venezuela. And if a final word of testimony be needed, one of the most advanced advocates of a thoroughgoing democracy has remarked that much of the current criticism of the courts "is more vigorous than illuminating. It is a matter of common knowledge that the people resort to the courts for protection against the tyranny or folly of the legislative body quite as often as the reactionary interests resort to them for protection against the demands of political and social progress. When a fleeting majority in the legislature attempts to intrench itself in power by obnoxious legislation or to barter away the people's inheritance or to misapply public funds, there is great satisfaction to the public in being able to apply to the courts for protection against the violation of constitutional guarantees." (Delos F. Wilcox, "Government by All the People,” p. 74.)

Many people of average intelligence but defective education are now declaiming bitterly against the courts as committed to policies of obstruction or as opponents of progress. They err greatly in representing the judges as a sort of third party in legislation, whose permission must be obtained before the will of the people, enacted into a stat

ute, can be done, and who put the "judicial veto" upon any law which they, for any reason whatever, dislike. Of course this is pure nonsense. There is no such thing as a judicial veto. But on the contrary, when the courts are asked by litigants to pronounce a statute unconstitutional, they proceed according to certain well-settled rules, which are never departed from, and which are familiar to all lawyers, though naturally not so much so to men. of other professions. A technical discussion or illustration of these rules would not be appropriate in this connection, but they may here be stated briefly and categorically.

And first, no court is at liberty to pronounce a statute unconstitutional unless the fact that it is repugnant to some particular designated clause or portion of the constitution is distinctly alleged and clearly shown, or unless it is made indubitably to appear that the statute is contrary to some one or more of the implied limitations and restrictions upon the power of the legislature. Nor can the spirit of the Constitution or its supposed general purposes be invoked, apart from the words of the instrument, to invalidate a statute. For this reason, United States District Judge Hough, in speaking of certain provisions of the immigration law, refused to adjudge it unconstitutional, although he said: "For some years I have regarded it as harshly opposed to the spirit of the Constitution, and perhaps capable of use in derogation of earlier treaty rights of citizens of friendly nations, yet entirely within the congressional power of regulating

foreign commerce." (155 Federal Reporter, 428.)

In the next place, to induce a court to pass upon the constitutionality of a statute, the question must arise in the course of an actual and genuine litigation. No one can get the opinion of the court on such a question by making up a friendly issue with a pretended adversary. Of course a "test case" may be presented, but it must be a real suit between real antagonists. And as a corollary to this rule, a statute will not be declared invalid on the application of a mere volunteer. The attack must be made by some person whose rights or interests are directly affected by it. This is more fully explained in a recent decision of the Supreme Court, in which it was remarked by Mr. Justice Holmes that "there is a point beyond which this court does not consider arguments of this kind for the purpose of invalidating the tax laws of a state on constitutional grounds. This limit has been fixed in many cases. It is that, unless the party setting up the unconstitutionality of the state law belongs to the class for whose sake the constitutional protection is given, or the class primarily protected, this court does not listen to his objections, and will not go into imaginary cases, notwithstanding the seeming logic of the position that it must do so because if, for any reason or as against any class embraced, the law is unconstitutional, it is void as to all. If the law is valid when confined to the class of the party before the court, it may be more or less of a speculation to inquire what exceptions the state court might read into general

words, or how far it may sustain an act that partially fails." (204 U. S., 152.)

Again, the question may be raised after the act is passed, not before. In a few of the states, it is true, the constitutions permit the legislature or executive department to take the opinion of the supreme court upon the validity of a proposed or pending measure. But the court does not answer as a court, but as a constitutional adviser. Its opinion is always designated as "the opinion of the justices," not of "the court." The distinction is important, because it follows that an opinion so given is not conclusive of the rights of individuals, nor binding on the court itself, as a precedent, in subsequent litigation. But even this is not permitted under the federal system. It has not been attempted since 1793, when Washington asked the advice of the Supreme Court on certain questions of law, which the court respectfully declined to give.

Another rule is that the question of constitutionality will not be decided where it is only of academic interest in the case, but only where its solution is imperatively necessary to the right disposition of the controversy. The decision will be rested on grounds which do not involve a determination as to the validity of the statute, if there be any such in the case. It is only when the question of the constitutional authority of the legislature to enact the statute is the very gist and marrow of the case that the court will give its judgment on this point.

So also, a decision against the validity of the statute will be avoided, if it

is possible, by putting such a construction upon it as will make it conform to the Constitution. To this end, the court will even disregard the natural and usual import of the words used if it is possible to adopt another construction sustaining the statute, which shall not be strained or fantastic. "It is elementary," says Chief Justice White, "when the constitutionality of a statute is assailed, if the statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that construction which will save the statute from constitutional infirmity." And: "Where a statute is susceptible of two constructions by one of which grave and doubtful constitutional questions arise, and by the other of which such questions are avoided, our duty is to adopt the latter." (213 U. S., 366.)

Every presumption is in favor of the constitutionality of an act of the legislature. Every reasonable doubt must be resolved in favor of the statute, not against it, and the courts will not adjudge it invalid unless its violation of the Constitution is, in their judgment, clear, complete, and unmistakable. "It is not enough that a statute goes to the verge of constitutional power. We must be able to see clearly that it goes beyond that power. In case of real doubt, a law must be sustained." (Justice Holmes, in 207 U. S., 79.) "The legislature or local assembly acting under its authority is the governing body of the state or that portion thereof. It is its primary duty to determine what the public welfare demands, and every presumption must be indulged in its

favor. It follows therefore that unless it is palpably clear that its determination is wrong, it must be allowed to stand." (148 Federal Reporter, 533.)

Another important rule is that if a statute was passed in due form, and its validity is challenged in the courts, no inquiry will be permitted, nor any argument heard, concerning the motives which actuated the legislative body. It cannot be argued or shown to the court that the legislature acted unadvisedly or mistakenly, or upon an insufficient study of the subject-matter, or that it was induced to enact the law by deception practised upon it, or even that fraud, bribery, or corruption entered into the making of the law. For example, in the determination by a court of the constitutionality of a railroad rate statute of a state, no con

sideration will be given to the argument that the subject was not maturely considered by the legislature before passing the act. "All testimony and argument bearing upon the question as to what consideration the legislature of Missouri gave to these enactments is entirely immaterial. Much was said in argument as to the message of Governor Hughes of New York two years ago in declining to approve the twocent fare statute of that state. Governor Hughes had the moral courage to veto a measure of popular favor because, as he believed, the question had not been fully considered. But the relations of a governor to proposed legislation, and those of a court to legislation consummated, are entirely different." Federal Reporter, 353.)

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But more than this—a statute cannot be declared void on considerations go

ing merely to its policy, propriety, wisdom, or expediency. These are considerations for the legislature, but not for the court. As the present Chief Justice has remarked: "No instance is afforded from the foundation of the government where an act which was within a power conferred was declared to be repugnant to the Constitution because it appeared to the judicial mind that the particular exertion of constitutional power was either unwise or unjust." And in another case: "Whether the law is open to just criticism as a piece of legislation is of course a matter upon which we can express no opinion. The validity of an act passed by the legislature must be tested alone by the Constitution; the courts have no right or power to nullify a statute upon the ground that it is against natural justice or public policy." (133 Federal Reporter, 681.) Natural justice is supposed to be adequately guaranteed by the Constitution, and public policy exists only as it is found in the Constitution and the laws.

And finally, it is a rule that if some of the parts or provisions of a statute are plainly contrary to the Constitution, but not so the rest, the invalid parts will be dissected out, if possible, and the remainder sustained. That is, if the invalid portions can be disentangled from the rest, and if, after their excision, there remains a complete, intelligible and valid statute, capable of being executed and conforming to the general purpose of the legislature as shown in the act, it will not be adjudged unconstitutional in toto, but sustained to that extent.