II. constitutions, on the other hand, contain a hint as to Chapter the mode in which a law is to be treated which is alleged to violate the constitution. Their framers indeed hardly seem to have recognised the fact that enactments of the legislature might, without being in so many words opposed to the constitution, yet be of dubious constitutionality, and that some means would be needed for determining whether a given law was or was not in opposition to the principles of the constitution. Republican These characteristics of the revolutionary constitu- Existing tions have been repeated in the works of later French constituconstitutionalists. Under the present French Re- tion. public there exist a certain number of laws (not it is true a very large number), which the Parliament cannot change; and what is perhaps of more consequence, the so-called Congress1 could at any time increase the number of fundamental laws, and thereby greatly decrease the authority of future Parliaments. The constitution however contains no article providing against the possibility of an ordinary Parliament carrying through legislation greatly in excess of its constitutional powers. Any one in fact who bears in mind the respect paid in France from the time of the Revolution onwards to the legislation of de facto governments and the traditions of the French judicature, will assume with confidence that an enactment passed through the Chambers, promulgated by the President, and published in the Bulletin des Lois, will be held valid by every tribunal throughout the Republic. 1 The term is used by French writers, but does not appear in the Lois Constitutionnelles, and one would rather gather that the proper title for a so-called Congress is L'Assemblée Nationale. Part I. Are the continental tions The restric This curious result therefore ensues. tions placed on the action of the legislature under the articles of French constitution are not in reality laws, since they are not rules which in the last resort will be "laws"? enforced by the Courts. Their true character is that of maxims of political morality, which derive whatever strength they possess from being formally inscribed in the constitution and from the resulting support of public opinion. What is true of the constitution of France applies with more or less force to other polities which have been formed under the influence of French ideas. The Belgian constitution, for example, restricts the action of the Parliament no less than does the Republican constitution of France. But it is at least doubtful whether Belgian constitutionalists have provided any means whatever for invalidating laws which diminish or do away with the rights (e. g. the right of freedom of speech), "guaranteed" to Belgian citizens. The jurists of Belgium maintain, in theory at least, that an Act of Parliament opposed to any article of the constitution ought to be treated by the Courts as void. But during the fifty-eight years of Belgian independence, no tribunal, it is said, has ever pronounced judgment upon the constitutionality of an Act of Parliament. This shows, it may be said, that the Parliament has respected the constitution, and certainly affords some evidence that, under favourable circumstances, formal declarations of rights may, from their influence on popular feeling, possess greater weight than is generally attributed to them in England; but it also suggests the notion that in Belgium, as in France, the restrictions on Parliamentary authority II. are supported mainly by moral or political sentiment, Chapter and are at bottom rather constitutional understandings than laws. To an English critic, indeed, the attitude of continental and especially of revolutionary statesmen towards the ordinary legislature bears an air of paradox. They seem to be almost equally afraid of leaving the authority of the ordinary legislature unfettered, and of taking the steps by which the legislature may be prevented from breaking through the bonds imposed upon its power. The explanation of this apparent inconsistency is to be found in two sentiments which have influenced French constitutionmakers from the very outbreak of the Revolution— an over-estimate of the effect to be produced by general declarations of rights, and a settled jealousy of any intervention by the judges in the sphere of politics. We shall see, in a later chapter, that the public law of France is radically influenced by the belief, almost universal among Frenchmen, that the Courts must not be allowed to interfere in any way whatever with matters of state, or indeed with anything affecting the machinery of government.2 provided United The authors of the American constitution (to- Safeguards gether with their Swiss imitators) have, for reasons by foundthat will appear in my next chapter, been even more ers of anxious than French statesmen to limit the authority States. of every legislative body throughout the Republic. They have further shared the faith of continental politicians in the value possessed by general declara 1 De Tocqueville, Œuvres Complètes, i. pp. 167, 168. Part I. tions of rights. But they have, unlike French constitution-makers, directed their attention, not so much to preventing Congress and other legislatures from making laws in excess of their powers, as to the invention of means by which the effect of unconstitional laws may be nullified; and this result they have achieved by making it the duty of every judge throughout the Union to treat as void any enactment which violates the constitution, and thus have given to the restrictions contained in the constitution on the legislative authority either of Congress or the State legislatures the character of real laws, that is, of rules enforced by the Courts. This system, which makes the judges the guardians of the constitution, provides the only adequate safeguard which has hitherto been invented against unconstitutional legislation. CHAPTER III PARLIAMENTARY SOVEREIGNTY AND FEDERALISM III. My present aim is to illustrate the nature of Chapter Parliamentary sovereignty as it exists in England, by a comparison with the system of government known Subject. as Federalism as it exists in several parts of the civilised world, and especially in the United States of America.1 ism best ing constitution of a United There are indeed to be found at the present time Federalthree other noteworthy examples of federal govern- understood ment the Swiss Confederation, the Dominion of by study Canada, and the German Empire. But while from study of the institutions of each of these states one States. may draw illustrations which throw light on our subject, it will be best to keep our attention throughout this chapter fixed mainly on the institutions of the great American Republic. And this for two reasons. The Union, in the first place, presents the most completely developed type of federalism. All the features which mark that scheme of government, and above all the control of the legislature 1 On the whole subject of American Federalism the reader should consult Mr. Bryce's American Commonwealth, and with a view to matters treated of in this chapter should read with special care chaps. i. to iv. and chaps. xxii. to xxxv. K |