iven case attacks a law relating to that case； he extends the circle of his customary duties； without however stepping beyond it； since he is in some measure obliged to decide upon the law in order to decide the case。 But if he pronounces upon a law without resting upon a case； he clearly steps beyond his sphere； and invades that of the legislative authority。
The second characteristic of judicial power is that it pronounces on special cases； and not upon general principles。 If a judge in deciding a particular point destroys a general principle； by passing a judgment which tends to reject all the inferences from that principle； and consequently to annul it； he remains within the ordinary limits of his functions。 But if he directly attacks a general principle without having a particular case in view； he leaves the circle in which all nations have agreed to confine his authority； he assumes a more important； and perhaps a more useful； influence than that of the magistrate； but he ceases to be a representative of the judicial power。
The third characteristic of the judicial power is its inability to act unless it is appealed to； or until it has taken cognizance of an affair。 This characteristic is less general than the other two； but； notwithstanding the exceptions； I think it may be regarded as essential。 The judicial power is by its nature devoid of action； it must be put in motion in order to produce a result。 When it is called upon to repress a crime； it punishes the criminal； when a wrong is to be redressed； it is ready to redress it； when an act requires interpretation； it is prepared to interpret it； but it does not pursue criminals； hunt out wrongs； or examine into evidence of its own accord。 A judicial functionary who should open proceedings； and usurp the censorship of the laws； would in some measure do violence to the passive nature of his authority。
The Americans have retained these three distinguishing characteristics of the judicial power； an American judge can only pronounce a decision when litigation has arisen； he is only conversant with special cases； and he cannot act until the cause has been duly brought before the court。 His position is therefore perfectly similar to that of the magistrate of other nations； and he is nevertheless invested with immense political power。 If the sphere of his authority and his means of action are the same as those of other judges； it may be asked whence he derives a power which they do not possess。 The cause of this difference lies in the simple fact that the Americans have acknowledged the right of the judges to found their decisions on the constitution rather than on the laws。 In other words； they have left them at liberty not to apply such laws as may appear to them to be unconstitutional。
I am aware that a similar right has been claimed … but claimed in vain …by courts of justice in other countries； but in America it is recognized by all authorities； and not a party； nor so much as an individual； is found to contest it。 This fact can only be explained by the principles of the American constitution。 In France the constitution is （or at least is supposed to be） immutable； and the received theory is that no power has the right of changing any part of it。 In England the Parliament has an acknowledged right to modify the constitution； as； therefore； the constitution may undergo perpetual changes； it does not in reality exist； the Parliament is at once a legislative and a constituent assembly。 The political theories of America are more simple and more rational。 An American constitution is not supposed to be immutable as in France； nor is it susceptible of modification by the ordinary powers of society as in England。 It constitutes a detached whole； which； as it represents the determination of the whole people； is no less binding on the legislator than on the private citizen； but which may be altered by the will of the people in predetermined cases； according to established rules。 In America the constitution may therefore vary； but as long as it exists it is the origin of all authority； and the sole vehicle of the predominating force。 *a
＇Footnote a： ＇The fifth article of the original Constitution of the United States provides the mode in which amendments of the Constitution may be made。 Amendments must be proposed by two…thirds of both Houses of Congress； and ratified by the Legislatures of three…fourths of the several States。 Fifteen amendments of the Constitution have been made at different times since 1789； the most important of which are the Thirteenth； Fourteenth； and Fifteenth； framed and ratified after the Civil War。 The original Constitution of the United States； followed by these fifteen amendments； is printed at the end of this edition。 … Translator's Note； 1874。＇＇
It is easy to perceive in what manner these differences must act upon the position and the rights of the judicial bodies in the three countries I have cited。 If in France the tribunals were authorized to disobey the laws on the ground of their being opposed to the constitution； the supreme power would in fact be placed in their hands； since they alone would have the right of interpreting a constitution； the clauses of which can be modified by no authority。 They would therefore take the place of the nation； and exercise as absolute a sway over society as the inherent weakness of judicial power would allow them to do。 Undoubtedly； as the French judges are incompetent to declare a law to be unconstitutional； the power of changing the constitution is indirectly given to the legislative body； since no legal barrier would oppose the alterations which it might prescribe。 But it is better to grant the power of changing the constitution of the people to men who represent （however imperfectly） the will of the people； than to men who represent no one but themselves。
It would be still more unreasonable to invest the English judges with the right of resisting the decisions of the legislative body； since the Parliament which makes the laws also makes the constitution； and consequently a law emanating from the three powers of the State can in no case be unconstitutional。 But neither of these remarks is applicable to America。
In the United States the constitution governs the legislator as much as the private citizen； as it is the first of laws it cannot be modified by a law； and it is therefore just that the tribunals should obey the constitution in preference to any law。 This condition is essential to the power of the judicature； for to select that legal obligation by which he is most strictly bound is the natural right of every magistrate。
In France the constitution is also the first of laws； and the judges have the same right to take it as the ground of their decisions； but were they to exercise this right they must perforce encroach on rights more sacred than their own； namely； on those of society； in whose name they are acting。 In this case the State… motive clearly prevails over the motives of an individual。 In America； where the nation can always reduce its magistrates to obedience by changing its constitution； no danger of this kind is to be feared。 Upon this point； therefore； the political and the logical reasons agree； and the people as well as the judges preserve their privileges。
Whenever a law which the judge holds to be unconstitutional is argued in a tribunal of the United States he may refuse to admit it as a rule； this power is the only one which is peculiar to the American magistrate； but it gives rise to immense political influence。 Few laws can escape the searching analysis of the judicial power for any length of time； for there are few which are not prejudicial to some private interest or other； and none which may not be brought before a court of justice by the choice of parties； or by the necessity of the case。 But from the time that a judge has refused to apply any given law in a case； that law loses a portion of its moral cogency。 The persons to whose interests it is prejudicial learn that means exist of evading its authority； and similar suits are multiplied； until it becomes powerless。 One of two alternatives must then be resorted to： the people must alter the constitution； or the legislature must repeal the law。 The political power which the Americans have intrusted to their courts of justice is therefore immense； but the evils of this power are considerably diminished by the obligation which has been imposed of attacking the laws through the courts of justice alone。 If the judge had been empowered to contest the laws on the ground of theoretical generalities； if he had been enabled to open an attack or to pass a censure on the legislator； he would have played a prominent part in the political sphere； and as the champion or the antagonist of a party； he would have arrayed the hostile passions of the nation in the conflict。 But when a judge contests a law applied to some particular case in an obscure proceeding； the importance of his attack is concealed from the public gaze； his decision bears upon the interest of an individual； and if the law is slighted it is only collaterally。 Moreover； although it is censured； it is not abolished； its moral force