492 PROCEEDINGS OF SECTION GI. 



realisation in fact, is an unquestionable evil. It may, from historical 

 or other causes, referred to in the earlier portion of this paper, be 

 unavoidable. But none the less it is an evil. It may, I think, be 

 laid down as an axiom that the more direct the relation between 

 the determination of the voter on political questions and its realisa- 

 tion in actual fact, the keener will be his interest in politics and the 

 more forcibly will his personal responsibility be brought home 

 to him. 



This diminution in the sense of responsibility is increased. I 

 think, by another element in the federal system. I refer to the 

 power of the Courts to declare laws passed by the Parliament to 

 be unconstitutional. This is a somewhat untechnical way of 

 putting it, but it will serve my purpose. I mentioned in an earlier 

 part of this paper that this power was an essential element of the 

 true federal system. It is true that it does not exist in the Swiss 

 and German Confederations, but to that extent they may, I think, 

 be considered to diverge from the true federal type. It seems 

 impossible if the distribution of powers, which is so essential to 

 the federal system, is to be maintained, that the Legislature should 

 be allowed to be the judge of its own authority. On the other hand, 

 to establish an authority behind the Legislature, with power to 

 declare that what the representatives of the people have solemnly 

 enacted as law is not law, tends to obscure the relation between 

 cause and effect, to weaken the connection between the decisions 

 of the electorate, or its representatives, and the consequences of 

 those decisions, in a way that must diminish their sense of personal 

 responsibility. The best way to educate a democracy is to make 

 it pay, as quickly and as directly as may be, for its mistakes. 

 This element in the federal system tends to defer the pa3-ment 

 and obscure its causal relation with the mistakes. 



The uncertainty as to the limits of the different organs of 

 government in the Federal system also tends to divert attention, 

 as I mentioned above, from the substance of legislation to the 

 question of the power to enact it. This is not by any means an 

 original observation. One of the keenest critics of the American 

 Constitution, Professor J. B. Thayer, himself an American, in a 

 lecture on the " Origin and Scope of the American Doctrine of Con- 

 stitutional Law," delivered before a Congress on Jurisprudence and 

 Law Reform, in 1893, used the following words : — 



" No doubt our doctrine of Constitutional Law has had a tendency to 

 drive out questions of justice and right and to fill the mind of legislators 

 with thoughts of mere legality, of what the Constitution allows. And more- 

 over, even in the matter of legality, they have felt little responsibility : if 

 we are wrong, they say, the courts will correct it. If what I have been 

 saying is true (he has been speaking of the power of the courts to declare 

 statutes unconstitutional) the safe and permanent road to reform is that of 

 impressing upon our people a far stronger sense than they have of the great 

 range of possible harm and evil that our system leaves open, and must leave 

 open to the legislatures, and of the clear limits of judicial power ; so that 

 responsibility may be brought sharply home where it belongs. The checking 

 and cutting down of legislative power, by numerous detailed prohibitions in 



