surprising, then, that the Federal courts have not attempted to limit the treaty-making power.

Before leaving the subject of the Federal courts one feature of the judicial negative deserves further notice. The fact that it is not exercised until a case involving the law in question is brought before the court in the ordinary course of litigation is often referred to by constitutional writers as one of its chief merits. And yet until a competent court has actually declared a legislative act null and void, it is for all practical purposes the law of the land and must be recognized as such. It may vitally affect industry and commerce and require an elaborate readjustment of business relations. It may even be years after such an act is passed before a decision is obtained. from the court of last resort. And if the decision annuls the law, it does so not from the time that the judgment of the court is rendered, but from the time the act in question was originally passed. This retroactive character of the judicial veto is strongly suggestive of the ex post facto legislation which the Constitution expressly forbids. By thus invalidating the law from the beginning it may leave a vast body of business contracts without legal protection or support. As a consequence, it is impossible for any one, be he ever so well informed, to know just what legislative acts are valid and what are not. The amount of uncertainty which this introduces into business

relations is more easily imagined than described.

America can claim the rather questionable distinction of being the only important country in which we find this uncertainty as to the law, since it is the only one in which the courts have a negative on the acts of the legislature. That we have ourselves realized the disadvantages of the system is shown by the changes made in the constitutions of several states with a view of diminishing the frequency of the judicial veto. These provisions make it the duty of the judges of the supreme court of the state to give their opinion upon questions of law when required by the governor or other branch of the law-making authority.1

In so far as constitutional provisions of this sort have been intended to prevent the evils resulting from a deferred exercise of the judicial veto, they have largely failed to accomplish their purpose. This has been due to the attitude of the courts, which have held that an opinion thus given in compliance with a constitutional requirement is not binding upon them when the question is raised again in the ordinary way in the trial of a case.

1

1 The constitutions of Maine (since 1820), Rhode Island (since 1842), Florida (since 1875), and Missouri (constitution of 1865, but omitted in constitution of 1875 and since).

A provision of this kind is also found in the Massachusetts constitution of 1780, from which it was copied in the New Hampshire constitution of 1784. Its purpose in these two constitutions, however, was not to guard against the subsequent exercise of the judicial veto, since the latter was then unknown, but to make the judges of the Supreme Court an advisory body to the legislature.

CHAPTER VI

THE CHECKS AND BALANCES OF THE

CONSTITUTION

Two features of this system, the difficulty of amendment and the extraordinary powers of the judiciary have been discussed at some length. Both, as we have seen, were designed to limit the power of the popular majority. This purpose is no less evident when we view the Constitution as a whole.

The members of the Federal Convention had little sympathy with the democratic trend of the Revolutionary movement. It was rapidly carrying the country, they thought, to anarchy and ruin. To guard against this impending evil was the purpose of the Constitution which they framed. It was their aim to eliminate what they conceived to be the new and false and bring the government back to old and established principles which the Revolutionary movement had for the time being discredited. They believed in the theory of checks and balances in so far as the system implied the limitation of the right of popular control, and made the Constitution to this extent as complete

an embodiment of the theory as the circumstances of the time permitted.

In any evolutionary classification of governments the American system occupies an intermediate position between the old type of absolute monarchy on the one hand and thoroughgoing democracy on the other. Following in a general way the course of political development in England, we may say that there was an early stage in the growth of the state when the power of the king was predominant. Neither the nobility nor the common people exercised any effective control over him. He was what we may call an absolute monarch. His power was unlimited in the sense that there were no recognized checks imposed upon it. He was irresponsible, since no one could call him to account for what he did.

The upper classes, however, were anxious to share with the king the control of the state. Their efforts were directed first toward limiting his power by making their own consent necessary before he could enact any law, carry out any policy, or do any thing of a positive nature. But even after they had been admitted to this share in the government the negative power of the king remained unlimited. The veto power acquired by the upper classes might prevent him from enacting a particular law, or enforcing a given policy, but no one had a veto on his inaction. He might be unable to do what the classes having a voice in

the management of the government forbade, but he could decline to do what they wished.

The appearance of a House of Commons did not change essentially the character of the scheme, nor would it have done so, had this body been truly representative of the people as a whole. It placed an additional check on both King and Lords by giving to the representative body the power to negative their positive acts. Both the

King and the Lords retained, however, their negative authority unimpaired and could use it for the purpose of defeating any measure which the Commons desired. This is what we may call the check and balance stage of political development. Here all positive authority is limited, since its exercise may be prevented by the negative power lodged for this purpose in the other branches of the government. This negative power itself, however, is absolute and unlimited. The government is in no true sense responsible to the people, or any part of them, since they have no positive control over it.

This complex system of restrictions which is the outgrowth and expression of a class struggle for the control of the government must necessarily disappear when the supremacy of the people is finally established. This brings us to the next and for our present purpose, at least, the last stage of political evolution.

Here the authority of the people is undisputed.