has only one officer to execute its decrees, called the United States
Marshal; and yet, without sword or purse, and with only a high sheriff
to enforce its mandates, when the Supreme Court says to a President or
to a Congress or to the authorities of a great--and, in some respects,
sovereign--State that they must do this or must refrain from doing that,
the mandate is at once obeyed. Here, indeed, is the American ideal of "a
government of laws and not of men" most strikingly realized; and if the
American Constitution, as formulated and developed, had done nothing
else than to establish in this manner the supremacy of law, even as
against the overwhelming sentiment of the people, it would have
justified the well-known encomium of Mr. Gladstone.

It must be added, however, that in one respect this function of the
judiciary has had an unfortunate effect in lessening rather than
developing in the people the sense of constitutional morality. In your
country the power of Parliament is omnipotent, and yet in its
legislation it voluntarily observes these great fundamental decencies
of liberty which in the American Constitution are protected by formal
guarantees. This can only be true because either your representatives in
Parliament have a deep sense of constitutional morality, or that the
constituencies which select them have so much sense of constitutional
justice that their representatives dare not disregard these fundamental
decencies of liberty.

In the United States, however, the confidence that the Supreme Court
will itself protect these guaranties of liberty has led to a diminution
of the sense of constitutional morality, both in the people and their
representatives. It abates the vigilance which is said to be ever the
price of liberty.

Laws are passed which transgress the limitations of the Constitution
without adequate discussion as to their unconstitutional character, for
the reason that the determination of this fact is erroneously supposed
to be the exclusive function of the judiciary.

The judiciary, contrary to the common supposition, has no plenary power
to nullify unconstitutional laws. It can only do so when there is an
irreconcilable and indubitable repugnancy between a law and the
Constitution; but obviously laws can be passed from motives that are
anti-constitutional, and there is a wide sphere of political discretion
in which many acts can be done which, while politically
anti-constitutional, are not