and their distribution and separation, the institutions of the state, the regulation of personal, social, and political rights, even those heretofore deemed most fundamental and necessary to the maintenance of freedom, in so far as the same are not created or secured by the federal constitution, the power of the people, in making or amending their constitution, is plenary and supreme.15

Governor's Approval of Amendment.

The amendment itself need not be submitted to the governor for his approval or veto. But the proposition, or resolution, of the legislature to refer the amendment to the popular vote may take such a shape as to fall within the designation of ordinary legisla tion, and so require the assent of the executive. The practice in the different states, in this particular, is not uniform.16

Powers of Constitutional Convention.

If the convention is called for the purpose of amending the constition in a specified part, the delegates have no power to act upon and propose amendments in other parts of the constitution.17 The convention cannot take from the people their sovereign right to ratify or reject the constitution or ordinance framed by it, and cannot infuse life and vigor into its work before ratification by the people.18 But the people, in conferring authority upon the convention, may intrust it with power not merely to prepare a draft of a new constitution, but to "enact" it, and when such authority is given, the new instrument need not be submitted to the popular ratification.19 A constitutional amendment does not become operative upon the casting in its favor of the necessary majority of votes, but

18 In re Gibson, 21 N. Y. 9.

18 See In re Senate File 31, 25 Neb. 864, 41 N. W. 981; State v. Secretary of State, 43 La. Ann. 590, 9 South. 776..

17 Opinion of the Justices, 6 Cush. (Mass.) 573. And when a convention is called to frame a constitution, which is to be submitted to a popular vote for adoption, it cannot pass ordinances, and give them validity, without submitting them to the people for ratification as a part of the constitution. Quinlan v. Railway Co. (Tex. Sup.) 34 S. W. 738.

18 Woods' Appeal, 75 Pa. St. 59; State v. Mayor, etc., of City of New Orleans, 29 La. Ann. 863.

19 Sproule v. Fredericks, 69 Miss. 898, 11 South. 472.

BL.CONST.L.-4

only after the due promulgation of the result.20

A clause in the

bill of rights, in a state constitution, may be amended in the same manner as any other part of the constitution.21

Effect of Amendment.

An amendment to a constitution is not to be considered as if it had been in the original instrument, but rather as analogous to a codicil or a second deed, altering or rescinding the first, which is referred to only to see how far the first must yield to give full effect to the last. The legal fiction regarding an amendment to a pleading as if inserted in the first instance, does not apply.22

20 Sewell v. State, 15 Tex. App. 56; State v. Mayor of Morgan City, 32 La. Ann. 81; People v. Norton, 59 Barb. 169.

21 State v. Cox, 8 Ark. 436.

22 University v. McIver, 72 N. C. 76, per Pearson, C. J.

OFFICE AND DUTY OF THE JUDICIARY.

30. The judicial department of the government is the final and authoritative interpreter of the constitution.

There is a sense in which every person, even a private individual, must judge of the meaning and effect of the constitution, in order to govern his own actions and his dealings with other men. And the executive and legislative departments of government are clearly under the necessity of making similar determinations, at least in advance of authoritative expositions by the courts. But as the constitution is a law, and questions concerning its scope and interpretation, and of the conformity of public and private acts to its behests, are questions of law, the ultimate determination of such questions must belong to the department which is charged with the function of ascertaining and applying the law. And as the courts have the power to enforce their judgments, their determination of such ques

tions is final. And as their decisions are entitled to respect and obedience as precedents, their expositions of the constitution are authoritative.

ADJUDGING UNCONSTITUTIONALITY.

31. It is the right and duty of the courts to examine the constitutional validity of every statute brought fairly before them as applicable to a pending controversy; and if they find such statute to be in contravention of the constitution, they may and must pronounce it a nullity and no law.1

It is the business of the judicial department of government to interpret and apply the law to cases brought before them. In so doing, they must determine what is the law applicable to a particular case. A statute which, if valid, will govern the case, is presumptively the law for its decision. But a statute is the expressed will of the legislature, while the constitution is the expressed will of the people. The latter is paramount. If the statute conflicts with it, it is invalid; it is no law. Now when this question of unconstitutional legislative action is raised, in such a manner as to become necessary to the determination of the pending cause, the court must decide it; and if it shall find that the statute is in violation of the constitution, and therefore no law, it must so declare, and decide the case accordingly. This is the whole rationale of the power of the courts to adjudge statutes invalid. It is not a veto power. It is not a supervisory power over legislation. It is simply the power to ascertain and decide what is the law for the determination of the cause which happens to be before the court."

An American Institution.

This power of the judiciary to judge of the constitutional validity of acts of legislation is an invention of the American people and an institution peculiar to our country. It is not one of the political ideas borrowed from the British constitution. No such power belongs to the English judges. It is true there are some cases in their reports, prior to the revolution, in which the judges would appear

1 Vanhorne's Lessee v. Dorrance, 2 Dall. 304.

2 Griffin's Ex'r v. Cunningham, 20 Grat. (Va.) 31.

to have asserted a right to decide upon the validity of acts of parliament and to adjudge them void if they violated the great principles of liberty or of natural justice. Thus in Bonham's Case, Lord Coke is reported to have said: "It appeareth in our books that in many cases the common law will control acts of parliament and adjudge them to be utterly void; for where an act of parliament is against common right and reason or repugnant or impossible to be performed, the common law will control it and adjudge it to be void." But a careful examination of the authorities will show that these statements mean no more than that the judges would not so construe an act of parliament as to give it an unjust, unreasonable, or oppressive operation, if they could avoid it, and that, to escape such consequences, they would resort even to a forced and unnatural construction, assuming that parliament could not have intended such a result. But it was clearly settled in England, at the time of the American revolution, that if it was the positive will of parliament to enact an unjust or unreasonable law, and if that will was too clearly expressed to admit of its being construed away, then the judges were bound to obey it, and there was no power which could control it, unless it were by a revolution. Neither is there at the present day any court on the continent of Europe which possesses the power and authority to pronounce against the validity of an act of the national legislature on account of its conflict with the written constitution of the state. So that the position of the American

5

88 Coke, 118a. And see, also, Day v. Savadge, Hob. 87; City of London V. Wood, 12 Mod. 687.

41 Bl. Comm. 91; 1 Kent, Comm. 447. Winthrop v. Lechmere, Thayer, Cas. Const. Law, 34, was a case (in 1727) in which the privy council adjudged an act of the colony of Connecticut to be null and void, because in conflict with the royal charter of the colony, in that it was contrary to the laws of England. But this can hardly be considered as a precedent for the American doctrine, on account of the limited nature of the legislative authority of the colony and Its dependent position.

Professor Thayer, in his valuable collection of cases on constitutional law (pp. 146-149), quoting from Coxe on Judicial Power, mentions a case of Garbade v. State of Bremen, in the Hanseatic court of upper appeal, in 1875, in which judgment was given against the validity of a law of Bremen, because it was in contravention of the constitution of that state. It is stated that the court was much influenced in this case by the writings of the jurist Von Mohl, who, in turn, based many of his views on the works of Story, Kent,