think it may be regarded as essential.
The judicial power is by its nature devoid of action; it must be put in
motion in order to produce a result. When it is called upon to repress a
crime, it punishes the criminal; when a wrong is to be redressed, it is
ready to redress it; when an act requires interpretation, it is prepared
to interpret it; but it does not pursue criminals, hunt out wrongs,
or examine into evidence of its own accord. A judicial functionary who
should open proceedings, and usurp the censorship of the laws, would in
some measure do violence to the passive nature of his authority.

The Americans have retained these three distinguishing characteristics
of the judicial power; an American judge can only pronounce a decision
when litigation has arisen, he is only conversant with special cases,
and he cannot act until the cause has been duly brought before the
court. His position is therefore perfectly similar to that of the
magistrate of other nations; and he is nevertheless invested with
immense political power. If the sphere of his authority and his means of
action are the same as those of other judges, it may be asked whence he
derives a power which they do not possess. The cause of this difference
lies in the simple fact that the Americans have acknowledged the right
of the judges to found their decisions on the constitution rather than
on the laws. In other words, they have left them at liberty not to apply
such laws as may appear to them to be unconstitutional.

I am aware that a similar right has been claimed--but claimed in
vain--by courts of justice in other countries; but in America it is
recognized by all authorities; and not a party, nor so much as an
individual, is found to contest it. This fact can only be explained by
the principles of the American constitution. In France the constitution
is (or at least is supposed to be) immutable; and the received theory is
that no power has the right of changing any part of it. In England the
Parliament has an acknowledged right to modify the constitution; as,
therefore, the constitution may undergo perpetual changes, it does
not in reality exist; the Parliament is at once a legislative and a
constituent assembly. The political theories of America are more simple
and more rational. An American constitution is not supposed to be
immutable as in France, nor is it susceptible of modification by the
ordinary powers of society as in England. It constitutes a