these remarks is applicable
to America.

In the United States the constitution governs the legislator as much as
the private citizen; as it is the first of laws it cannot be modified
by a law, and it is therefore just that the tribunals should obey the
constitution in preference to any law. This condition is essential to
the power of the judicature, for to select that legal obligation
by which he is most strictly bound is the natural right of every
magistrate.

In France the constitution is also the first of laws, and the judges
have the same right to take it as the ground of their decisions, but
were they to exercise this right they must perforce encroach on rights
more sacred than their own, namely, on those of society, in whose name
they are acting. In this case the State-motive clearly prevails over the
motives of an individual. In America, where the nation can always reduce
its magistrates to obedience by changing its constitution, no danger of
this kind is to be feared. Upon this point, therefore, the political and
the logical reasons agree, and the people as well as the judges preserve
their privileges.

Whenever a law which the judge holds to be unconstitutional is argued
in a tribunal of the United States he may refuse to admit it as a rule;
this power is the only one which is peculiar to the American magistrate,
but it gives rise to immense political influence. Few laws can escape
the searching analysis of the judicial power for any length of time,
for there are few which are not prejudicial to some private interest or
other, and none which may not be brought before a court of justice by
the choice of parties, or by the necessity of the case. But from the
time that a judge has refused to apply any given law in a case, that law
loses a portion of its moral cogency. The persons to whose interests
it is prejudicial learn that means exist of evading its authority, and
similar suits are multiplied, until it becomes powerless. One of
two alternatives must then be resorted to: the people must alter the
constitution, or the legislature must repeal the law. The political
power which the Americans have intrusted to their courts of justice
is therefore immense, but the evils of this power are considerably
diminished by the obligation which has been imposed of attacking
the laws through the courts of justice alone. If the judge had been
empowered to contest the laws on the ground of theoretical generalities,
if he had