Final Authority in Construction. The several departments of the government are equal in dignity and of coordinate authority, and neither can subject the other to its jurisdiction, or strip it of any portion of its constitutional powers. But the judiciary is the final authority in the construction of the constitution and the laws, and its construction should be received and followed by the other departments. This results from the nature of its jurisdiction; questions of construction arise in legal controversies, and are determined by the courts, and when determined the courts have power to give effect to their conclusions, Their judgments thus become the law of the land on the points covered by them, and a disregard of them, whether by private citizens or by officers of the government, could only result in new controversy, to be finally determined by the judiciary in the same way. But the courts have no authority to pass upon abstract questions, or questions not presented by actual litigation, and have therefore nothing to do with questions which relate exclusively to executive or legislative authority; nor is there any method in which their opinions can be constitutionally expressed, so as to have binding force upon either the executive or the legislature when the question presents itself, not as one of existing law, but as one of what it is proper or politic or competent to make law for the future. The judiciary, though the final judge of what the law is, is not the judge of what the law should be.1

It is very proper, however, that the judiciary, in passing upon questions of law which have been considered and acted upon by the other departments, should give great

1 Some few of the States make provision by their constitutions whereby the executive or the legislature may call upon the highest court of law of the State for its opinion upon important questions as a guide to their own action.

weight to their opinions, especially if they have passed unchallenged for a considerable period.1 The judiciary have often yielded to it when the correctness of a practical construction of the law by the executive departments, in the performance of their own duties, was in question; but they cannot do this when, in the opinion of the court, the construction is plainly in violation of the Constitution.8

1 Stuart v. Laird, 1 Cranch, 299; Bank of United States v. Halstead, 10 Wheat. 51, 63.

2

2 Edwards's Lessee v. Darby, 12 Wheat. 210; Surgett v. Lapice, 8 How. 48; Bissell v. Penrose, 8 How. 317; Union Ins. Co. v. Hoge, 21 How. 35; United States v. Gilmore, 8 Wall. 330; United States v. Moore, 95 U. S. Rep. 760.

8 Story on Const., § 407; Cooley, Const. Lim., 4th ed., 84.

CHAPTER VII.

CHECKS AND BALANCES IN GOVERNMENT.

As enu

What they are. -The American system of government is an elaborate system of checks and balances. merated by one of the early statesmen of the country, these are as follows: - First, the States are balanced against the general government. Second, the House of Representatives is balanced against the Senate, and the Senate against the House. Third, the executive authority is in some degree balanced against the legislature. Fourth, the judiciary is balanced against the legislature, the executive, and the state governments. Fifth, the Senate is balanced against the President in all appointments to office, and in all treaties. Sixth, the people hold in their own hands the balance against their own representatives by periodical elections. Seventh, the legislatures of the several States are balanced against the Senate by sexennial elections. Eighth, the Electors are balanced against the people in the choice of President and Vice-President. And this, it is added, is a complication and refinement of balances which is an invention of our own, and peculiar to this country.1

The invention, nevertheless, was suggested by the British constitution, in which a system almost equally elaborate was then in force. In its outward forms that system still remains; but there has been for more than a century a gradual change in the direction of a concentration of legislative and executive power in the popular House of Parliament, so that the government now is sometimes said,

1 Letter of John Adams to John Taylor, Works, vi. 467.

with no great departure from the fact, to be a government by the House of Commons. The judiciary, indeed, retains its independence and power, and these have been somewhat strengthened as bills of attainder are discontinued, and as the judicial authority of the House of Lords is narrowed by legislation.

Electors of President. — Of the checks in American government above enumerated, some have proved wholly illusory. This is emphatically true of the eighth. The theory of the Constitution is that there shall be chosen by each State a certain number of its citizens, enjoying the general confidence of the people, who shall independently cast their suffrages for President and Vice-President of the United States, according to the dictates of their individual judgments. This theory was followed in the first three presidential elections, but from that time it fell into practical disfavor, and now not only is the theory obsolete, but it would be thought in the highest degree dishonorable if an Elector were to act upon it. In practice, the persons to be voted for are selected by popular conventions, in advance of the choice of Electors, and these officers act as mere automata in registering the will of those who selected them.

States and Nation. The Constitution itself imposes very effectual checks on the powers of the States for the protection of federal jurisdiction, by expressly restraining them from the exercise of some of the most important powers of sovereignty, and by subordinating others to the authority of Congress. These are all alluded to elsewhere. To maintain these unimpaired, the federal government is made, as against the States, the final judge of its own powers. Nothing more need be said to show that encroachment upon the federal jurisdiction is effectually provided against.

On the other hand, there were various ways in which

the States were expected to constitute a balance to the powers of the federal government. First, in the division of powers between States and nation, the larger portion, including nearly all that touched the interests of the people in their ordinary business relations and in their family and social life, were reserved to the States. All that related to the family and the domestic relations, the administration and distribution of estates, the forms of contract and conveyance, the maintenance of peace and order in the States, the punishment of common-law offences, the making provision for education, for public highways, for the protection of personal liberty and liberty of worship, all these powers were withheld from the jurisdiction of the federal government, and retained by the States, and their retention was calculated to give to the body of the people a larger interest in a proper administration of state authority than in that of the nation. Second, the States elected the representatives in Congress and chose the senators, and these would naturally be expected to represent the opinions, feelings, and sentiments of their constituents, and to so act in their official positions as to avoid all encroachments on the powers of the States. The President was also chosen by persons selected by the States for the purpose, who would naturally reflect the local views. Third, the States were given the privilege to originate amendments to the Constitution of the United States whenever they should be found necessary, and it was expected that they would make use of this privilege if at any time the federal government should be found relatively too strong, or should be thought to have unwarrantably extended its jurisdiction. From the nature of the case, however, it was impossible that the powers reserved to the States should constitute a restraint upon the increase of federal power, to the extent that was at first expected. The federal government was necessarily