594 CONSTITUTIONAL LAW 



even the creation of the judiciary and its investment with powers 

 to legislative statute, which, of course, places the judiciary in a 

 position of inferiority and subordination to the legislature. Others, 

 while creating the courts by constitutional provision, fail to vest 

 them with any such protective power. Even the constitution of 

 Switzerland declares outright that the judicial tribunals shall have 

 no power to pass upon the constitutionality of legislative acts. 



The principle of European jurisprudence upon this point seems 

 to be that the legislature is the proper protector of individual immu- 

 nities against governmental power. In Europe, the title "govern- 

 ment " is applied only to the executive, and the statement of the 

 proposition as it presents itself to the European mind would be, 

 that the immunities of the individual are protected against govern- 

 mental encroachment by the representatives of the people. In 

 America, on the other hand, we consider the legislature to be a branch 

 of the government, and, therefore, it appears to us as a sort of 

 Celtic hoax to speak of the government defending the immunities 

 of the individual against itself. In fact some of our greatest states- 

 men have contended that the judiciary is also a branch of the 

 government and that we are subjecting ourselves to the same kind 

 of a hoax when we imagine that the judiciary will, in the long run, 

 protect the realm of individual immunity against governmental 

 encroachment. It really appears, at times, as if they were right, 

 and as if the judiciary were really casting its lot with the political 

 branches of the government for the purpose of expanding govern- 

 mental power at the expense of individual liberty. Still, on the 

 whole, this has not been true. On the whole, a judiciary established 

 directly by the constitution, composed of judges with life terms, 

 sustained by a sound popular knowledge of what the immunity or 

 liberty of the individual purports, and a general popular determina- 

 tion to uphold it, is the best possible organ to be vested with the 

 protection of that immunity against governmental encroachment, 

 as well as against encroachment from any other conceivable sources. 

 It is the only real antidote for the socialistic doctrine in regard to 

 civil liberty. That doctrine, stated in a sentence, is that the indi- 

 vidual is subject, at all points, to the control of the majority. This 

 doctrine is an absolute negation of the true principle of civil liberty. 

 As we have seen, civil liberty is individual immunity within a sphere 

 marked out by the constitution against governmental encroachment 

 or encroachment from any other source. It is the constitutional 

 realm of individuality. And if in any country all government and 

 every organization and every individual, except only one, should 

 stand upon one side, and the single individual upon the other, it 

 would be the constitutional duty of the body charged with the 

 function of maintaining civil liberty to protect that single one within 



