omnipotence appeared equally a danger. How was it to be avoided or prevented? That was a matter of grave concern to them.

How was Congress to be prevented from amending the Constitution by assuming to exercise powers not granted to it?

Modern writers upon the Constitution, in describing the conflicts in the Convention, have been apt to lay their chief stress upon the compromises of the Constitution1 — that through which the small States secured equal representation in the Senate, and the large States proportional representation and origination of revenue bills in the House; that through which the Northern States secured Federal regulation of commerce, and the Southern, prohibition of Federal interference with importation of slaves for twenty years, and representation of three fifths of their slaves in elections to the House.

While these compromises were essential in obtaining the signatures of delegates from all the States represented, it must not be forgotten that there were other matters which the framers regarded as fully as essential to their acceptance of the Constitution; and chief of these was their insistence on the limitation of the authority and term of office of the Executive- the President; 2 on the restraint

1 Charles Pinckney of South Carolina said, in the House, Feb. 13, 1821 (16th Cong., 2d Sess.): "This Constitution of the United States itself was the work of compromise . . . and this Constitution of compromise was formed by a body of men, at least as well-informed and disinterested and as much lovers of freedom and humanity as may probably ever again be assembled in this country."

2 Benjamin Huger of South Carolina said, in the House, Dec. 19, 1816 (19th Cong., 2d Sess.): "All those who were at all versed in the history of the times or had ever heard anything of the proceedings in the Convention which formed the Constitution well knew that by far the greatest difficulty experi

and precise definition of the powers of the Legislative the Congress; and on the curbs upon the States in the matter of tender laws, paper money, export duties, and the like.

enced in adjusting the provisions of it, was with regard to the Executive branch of the Government, and in particular as to the mode of selecting or electing the Chief Magistrate. . . . He had understood from all those of the original members of the Convention whom he had ever enjoyed the advantage of hearing converse on the subject, that this had been found the great Herculean task in the Convention, that this point had been longer and more frequently agitated, and that more projects and contrivances had been submitted to their consideration in regard to it, than perhaps all the other provisions of the Constitution taken together."

CHAPTER TWO

THE CONSTITUTION AND THE COURT

"The interpretation of the laws is the proper and peculiar province of the Courts. A Constitution is, in fact, and must be regarded, as a fundamental law. It must, therefore, belong to them to ascertain its meaning, as well as the meaning of any particular Act proceeding from the Legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred. . . . Nor does the conclusion, by any means, imply a superiority of the Judicial to the Legislative power. It only supposes that the power of the people is superior to both, and that where the will of the Legislature declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the Judges ought to be governed by the latter, rather than the former." ALEXANDER HAMILTON, in The Federalist, No. 78,

July 17-20, 1788.

"The framers of the Constitution, aware of the impossibility so to convey their meaning by any language which they could use, as to ⚫ prevent different conclusions being drawn from it, were fully impressed with the necessity of devising some arbiter to prevent the distracting 'consequences which these conflicting conclusions would unavoidably produce. Had they devolved upon Congress the right of deciding these controversies, they would have exonerated the Federal Legislature from the limitations which had been imposed upon it, and converted it into a despotic assembly, uncontrolled excepting by its discretion. Had they vested this right in the parties differing, they would have organized a system of confusion and anarchy, which would soon have resolved society into its original elements. To avoid, therefore, the evils of despotism and anarchy, they established a Federal Judiciary, constituting it a separate and independent department of the Government. ... If, they, the Federal Judiciary, decide that an Act of Congress is unconstitutional, it becomes inoperative and void." WILLIAM DRAYTON of South Carolina, in the House, June 5, 1832. 22d Cong., 1st Sess.

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American citizens may see, from what has been said in the preceding chapter, that in those portions

Good Conclusion

of the Federal Constitution devoted to grants of Legislative power and to prohibitions on the exercise by Congress of certain specific forms of Legislative power, the framers of the Constitution simply proceeded along very familiar lines of experience in their various States, and embodied in their new Constitution such provisions as had already been found in the Articles of Confederation or in the State Constitutions, together with such added restrictions on the power of the Legislatures, both Federal and State, as actual experience of evils in the past had shown to be necessary.

Now what was the purpose of setting forth categorically these restrictions and limitations of power in the new Constitution? What was the purpose of the thirty-one prohibitions? Did the framers mean them to be merely pleasant, political apothegms, expressions of aspiration, declarations of sentiment? Clearly not. The prohibitions were intended to prohibit. They were intended to be absolute legal safeguards to the citizens and to the States, strictly binding upon every agency of the new Government. They were intended to effectually prevent Congress, and the Executive himself, from going beyond the limits prescribed by the Constitution. In other words, they were declarations which were intended to be enforceable and to be enforced. "How vain is a paper restriction if it confers neither power nor right," exclaimed James A. Bayard, a few years later. "Of what importance is it to say, Congress are prohibited from doing certain acts, if no legitimate authority exists in the country to decide whether an act done is a prohibited act? Do gentle

men perceive the consequences which would follow from establishing the principle that Congress have the exclusive right to decide upon their own powers? This principle admitted, does any Constitution remain? Does not the power of the Legislature become absolute and omnipotent? Can you talk to them of transgressing their powers, when no one has a right to judge of those powers but themselves?”

But the only known method of enforcement of a law, other than force itself, is judicial action. This was perfectly well known to the framers of the Constitution and known not only in theory, but in practice. Limitations of this kind (i.e., to the Legislative authority), wrote Alexander Hamilton in 1788, "can be preserved, in practice, in no other way than through the medium of Courts of Justice, whose duty it must be to declare all Acts contrary to the manifest tenor of the Constitution void. Without this, all the reservation of particular rights or privileges would amount to nothing.'

The framers knew that their State Courts had asserted the power of enforcing the State Constitutions, and that, too, without any specific provisions in those Constitutions for such action. And there was a very particular reason why the framers should desire and contemplate similar action on the part of the Federal Judiciary which they were establishing in the new Constitution. It was agreed by all that

1 James A. Bayard of Delaware, in the House, Feb. 20, 1802. 7th Cong., 1st Sess. William Smith of South Carolina said in the House, June 16, 1789: "A great deal of mischief has arisen in the several States by the Legislatures undertaking to decide constitutional questions. Sir, it is the duty of the Legislature to make laws. Your Judges are to expound them." 1st Cong., 1st Sess. See also The Federalist, No. 78, June 17-20, 1788; No. 81, July 4-8, 1788.