Safeguards provided ers of United States. makers from the very outbreak of the Revolutionan 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 politics1. We shall see, in a later lecture, 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. The authors of the American constitution (toby found gether with their Swiss imitators) have, for reasons that will appear in next lecture, been even more my anxious than French statesmen to limit the authority of every legislative body throughout the Republic. They have further shared the faith of continental politicians in the value possessed by general declarations 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 unconstitutional 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, 1 De Tocqueville, Euvres Complètes, i. pp. 167, 168. 2 See Lecture V. 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. LECTURE IV. PARLIAMENTARY SOVEREIGNTY AND FEDERALISM. Aim of lecture. Federal ism best ing consti tution of United My aim in this lecture is to illustrate the nature of Parliamentary sovereignty as it exists in England, by a comparison with the system of government known as Federalism as it exists in several parts of the civilised world, and especially in the United States of America. There are indeed to be found at the present time understood three other noteworthy examples of federal governby study ment-the Swiss Confederation, the Dominion of Canada, and the German Empire. But while from a study of the institutions of each of these states one may draw illustrations which throw light on our subject, it will be best to keep our attention throughout this lecture 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 by the Courts, are there exhibited in their most salient and perfect form; the Swiss Confederation moreover, and the Dominion of Canada, are copied from the American model, whilst the constitution of the German Empire is too full of anomalies, springing both from historical and from temporary causes, to be taken as a fair representative of any known form of government. The Constitution of the United States, in the second place, holds a very peculiar relation towards the institutions of England. In the principle of the distribution of powers which determines its form, the Constitution of the United States is the exact opposite of the English constitution, the very essence of which is, as I hope I have now made clear, the unlimited authority of Parliament. But while the formal differences between the constitution of the American Republic and the constitution of the English monarchy are, looked at from one point of view, immense, the institutions of America are in their spirit little else than a gigantic development of the ideas which lie at the basis of the political and legal institutions of England. The principle, in short, which gives its form to our system of government is (to use a foreign but convenient expression) " unitarianism," or the habitual exercise of supreme legislative authority by one central power, which in the particular case is the British Parliament. The principle which, on the other hand, shapes every part of the American polity, is that distribution of limited, executive, legislative, and judicial authority among bodies each co-ordinate with and independent of the other which, we shall in a moment see, is essential to the federal form of government. The contrast therefore between the two polities is seen in its most salient form, and the results of this difference are made all the more visible because in every other respect the institutions of the English people on each side the Atlantic rest upon the same notions of law, of justice, and of the relation between the rights of individuals and the rights of the government, or the state. We shall best understand the nature of federalism and the points in which a federal constitution stands in contrast with the Parliamentary constitution of England if we note, first, the conditions essential to the existence of a federal state and the aim with which such a state is formed, secondly, the essential features of a federal union, and lastly, certain characteristics of federalism which result from its very nature, and form points of comparison or contrast between a federal polity and a system of Parliamentary sovereignty. Conditions A federal state requires for its formation two conditions 1. and aim of federalism. There must exist, in the first place, a body of countries such as the Cantons of Switzerland, the 1 For United States see Story, Commentaries on the Constitution of the United States: 4th edition. For Canada see the British North America Act, 1867, 30 Vict. c. 3. Bourinot, Parliamentary Procedure and Practice in the Dominion of Canada. For Switzerland see Constitution Fédérale de la Confédération Suisse du 29 Mai, 1874: Blumer, Handbuch des Schweizerischen Bundesstaatsrechtes. Dubs, Das oeffentliche Recht der Schweizerischen Eidgenossenschaft. |