rial expenditure, with foreign affairs, with peace and war, with
other matters placed within its competence; on every other point the
British Congress would, like the American Congress, be powerless. Nor
would all the powers taken from the Congress be necessarily given to the
local assemblies. Every analogy points the other way. If the example of
the United States is to be followed, articles of the constitution would
limit the power both of the Imperial Congress and of the local
representative assemblies. This limitation of authority could not be
measured by what appears on the face of the constitution. Some council,
tribunal, or other arbiter--let us, for the sake of simplicity, call it
the Federal Court--would have authority to determine whether a law was
or was not constitutional, or, in other words, whether it was or was
not a law. Let no one fancy that the restraint placed on the power of
ordinary legislation by the authority of a Federal Court; which alone
can interpret the constitution, is a mere form which has no practical
effect. The history of the United States is on this point decisive. De
Tocqueville, Story, and Kent are far safer and better instructed guides
than authors who "cannot conceive how any conflict of authority could
arise which could not be easily settled by argument, by conference, by
gradual experience;" and who seem to hold that to deny the existence of
a difficulty is the same thing as providing for its removal The
following are a few of the instances in which the American judiciary
have in fact determined the limits which bound the powers, either of
Congress or of the State legislatures. The judiciary have ruled that a
State is liable to be sued in the Federal Courts; that Congress has
authority to incorporate a bank; that a tax imposed by Congress was an
indirect tax, and therefore valid; that the control of the militia
really and truly belongs to Congress, and not, as in effect contended by
Connecticut and Massachusetts, to the governors of the separate States.
The Federal judiciary have determined the limits to their own
jurisdiction and to that of the State Courts. The judiciary have
pronounced one law after another invalid, as contrary to some article of
the constitution--e.g., either by being tainted with the vice of _ex
post facto_ legislation, or by impairing the obligation of contracts.
These are a few samples of the mode in which a Federal Court limits all
legislative authority. If a