on the other hand, contain precepts which
stand higher than the ordinary lawmaker. In the Union, as well as in the
individual states, there are separate organs for ordinary and for
constitutional legislation, and the judge watches over the observance of
the constitutional limitations by the ordinary legislative power. If in
his judgment a law infringes on the fundamental rights, he must forbid
its enforcement. The declarations of rights even at the present day are
interpreted by the Americans as practical protections of the
minority.[51] This distinguishes them from the "guaranteed rights" of
the European states. The American declarations are not laws of a higher
kind in name only, they are the creations of a higher lawmaker. In
Europe, it is true, the constitutions place formal difficulties in the
way of changing their specifications, but almost everywhere it is the
lawmaker himself who decides upon the change. Even in the Swiss
Confederacy judicial control over the observance of these forms is
nowhere to be found, although there, as in the United States, the
constitutional laws proceed from other organs than those of the ordinary
statutes.

The American bills of rights do not attempt merely to set forth certain
principles for the state's organization, but they seek above all to draw
the boundary line between state and individual. According to them the
individual is not the possessor of rights through the state, but by his
own nature he has inalienable and indefeasible rights. The English laws
know nothing of this. They do not wish to recognize an eternal, natural
right, but one inherited from their fathers, "the old, undoubted rights
of the English people."

The English conception of the rights of the subject is very clear upon
this point. When one looks through the Bill of Rights carefully, one
finds but slight mention there of individual rights. That laws should
not be suspended, that there should be no dispensation from them, that
special courts should not be erected, that cruel punishments should not
be inflicted, that jurors ought to be duly impanelled and returned, that
taxes should not be levied without a law, nor a standing army kept
without consent of Parliament, that parliamentary elections should be
free, and Parliament be held frequently--all these are not rights of the
individual, but duties of the government. Of the thirteen articles of
the Bill of Rights only two contain stipulations that are expresse