610 CONSTITUTIONAL LAW 



All the courts in your country, from the lowest to the highest, 

 have the right to hold as void and unenforceable any law adjudged 

 by them to be unconstitutional. It has never been possible to in- 

 troduce this rule in France. Attempts have vainly been made to 

 have it adopted by the courts, in view of the lack of definiteness of 

 texts at hand. But the courts have never dared to go such a length. 

 Bills have been introduced 'aiming at embodying it expressly in 

 legislation; they never have, and probably never will, come up for 

 discussion. A few authorities only, very few indeed, contend that 

 our laws imply a sanction of the rule of unconstitutionally; this, 

 however, seems to me really a paradox. 



How does this new contrast between American and French insti- 

 tutions arise? Can we find any rational explanation for it? No. 

 History and politics alone can furnish a key to the problem. Here 

 again the soils on which the seed of separation was sown have pro- 

 duced plants quite different in character. 



Doubtless the French rule, if looked upon from the standpoint 

 of law and abstract logic, is incomprehensible and unaccountable. 

 Your great Chief Justice Marshall has shown in a definite way, in 

 the famous case of Marbury v. Madison, that the American rule is 

 based upon all unshakable legal foundation. Whenever in a country 

 there exists a written constitution, there also exists, by virtue of 

 the same fact, a legislature with limited powers. The written con- 

 stitution assigns to the different powers their respective spheres of 

 action. It shuts them up in a circle which neither the legislative 

 nor the executive are allowed to overstep under penalty of forfeiting 

 their powers, and when a parliament violates a constitution bypassing 

 a law which contradicts one of its provisions, it takes the position 

 of an agent who would exceed the terms of his agency; the agent 

 would perform an act which is null and void, for he is no agent and 

 has no representative character beyond the scope of his agency. 

 So with a parliament. If it ignores the constitution, it is no longer 

 a parliament and ceases to be a representative body. 



This is perfectly true on grounds of law. But history and poli- 

 tics furnish a most satisfactory explanation of this difference between 

 the French and the American constitutional law. It consists in 

 this : that the former has put the separation of powers to a use which 

 was not recognized by the latter. As a matter of fact, it is upon the 

 principle of separation as much as, or even more than, upon texts, 

 which we must confess are rather ambiguous, that the right of the 

 courts to withhold the enforcement of an unconstitutional law is 

 denied in France. 



I shall not presume to teach you the historical origin of the Amer- 

 ican system. I myself studied it from American authors, and 

 especially from Professor Thayer of Harvard, whose death is a loss to 



