612 CONSTITUTIONAL LAW 



such European countries as are provided with a written constitution 

 and in which the question arises under the same conditions as in 

 France. There are only two exceptions in Europe that I know of. 

 In Norway and Greece the courts may withhold the enforcement 

 of any unconstitutional law. But while this rule has numerous and 

 far-reaching applications in the United States, even in the domain 

 of political and social reform, the rule of unconstitutionally has but 

 little importance in the two above-mentioned countries. I asked 

 some Norwegian and Greek jurists to let me know of decisions on 

 this point, and they were hardly able to discover more than a few 

 judgments, relating to cases of strictly private nature and involving 

 no issues of widespread interest. 



There must, therefore, be a special and very powerful reason 

 for the maintenance of so illogical a rule everywhere except in the 

 United States and the South American republics, which have merely 

 copied your constitution. 



The real reason for it is entirely political in character. Your 

 ''' exception of unconstitutionally " is a main piece in your system 

 of government, in your constitutional machinery. It is rather a 

 political than a judicial rule. I do not, of course, deny that it is a 

 protection for the rights of the individual and a very efficient guar- 

 anty of the liberties of the citizen. But its political character 

 overshadows its judicial side. The matter is political, while the form 

 is judicial. 



This feature was already noticed by our great De Tocqueville, the 

 illustrious Frenchman who was the first European to attempt a 

 description of your institutions, which shows such lofty views and 

 such a remarkable acuteness of analysis. " The American judge," 

 said De Tocqueville in his Democratic en Amerique, " is just like all 

 judges in other countries except that he is clothed with immense 

 political power." 



Now, neither in France nor in any other country of old Europe 

 governed by a written constitution, is there any disposition to give 

 the courts " immense political power." In such countries, which 

 either possess or slowly drift toward a parliamentary organization, 

 there exists no desire and no possibility to limit in such a manner 

 the province of the legislature, which is the political power par excel- 

 lence, and which your state constitutions tend, on the contrary, to 

 confine in an ever narrower circle. 



The parliamentary regime has its own rules, its inward logic; 

 it represents a special type of government in the broad sense of the 

 word. The system for which your constitution stands is of a very 

 different type, with its elected president, its secretaries placed be- 

 yond the control of the legislative power, its standing Senate and 

 House committees, its conventions, and lastly, its rule of unconsti- 



