The Origin and Scope of the American Doctrine of Constitutional Law

Abstract

This chapter shows how the American doctrine, allows to the judiciary the power to declare legislative Acts unconstitutional, and to treat them as null, come about, and explores what is the true scope of it? Within that margin, as among all these legislative considerations, the constitutional law-makers must be allowed a free foot. As legislative choice, ranging unfettered, may select one form of action or another, the judges must not interfere, since their question is a naked judicial one. Moreover, such is the nature of this particular judicial question that the preliminary determination by the legislature is a fact of very great importance, since the constitutions expressly intrust to the legislature this determination; they cannot act without making it. Furthermore, the constitutions not merely intrust to the legislatures a preliminary determination of the question, but they contemplate that this determination may be the final one; for they secure no revision of it.