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American Law Review.
BACK TO THE CONSTITUTION.
Law was long ago defined as "A rule of action prescribed by the supreme power in the State, commanding what is right, and prohibiting what is wrong." Which is the body in this country which has the last supreme word in legislation? Under our form of government we have an Executive, a Legislative and a Judicial department. The theory taught in the law schools is that each of these is separate and distinct, and that neither can interfere with the other. Laying aside preconceived opinions and deceptive forms of expression what is the real government which we have?
The Legislative is understood to be the lawmaking body as its name imports. If so, it should be the supreme power here as in England. In what way does the Constitution of the United States and the Constitutions of the States place any restrictions upon that body? According to the Federal Constitution, and that of nearly all the States, there is only one restriction, another department can plaft*e upon the lawmaking body, and that is that the Executive can interpose his veto upon any legislation which does not seem good to him, but the Constitutional Convention did not see fit to make this an absolute veto. For that would have placed the supreme power in the Executive. The Execu
tive was not given the last word but it was provided that by a certain vote which is two-thirds in the Federal Constitution, and varies in the different States, the veto can be overruled by the lawmaking body, if it adheres to its views. This is in accordance with the theory of our government which is that the lawmaking body is one of restrictions, that is that it represents the people and has all power that is not denied it by the organic law. Whereas, the Executive and Judicial are grants of power and have no authority except that conferred by the Constitution. This' is the statement made by Black1 and sums up correctly the analysis of our State and Federal Constitutions, as they are written. In the Federal government which is not an original sovereignty, but the creation, after the Revolution, of the States, the authority of the Federal lawmaking body is also a grant of power, for it has, or correctly should have, no powers except those expressly conferred or necessarily inferred from those that are given.
Now as to the Executive (both State and Federal) its only powers are those which are expressly given or derived by necessary inference from those that are conferred. The only authority given this department to interfere with the others in any way is the veto already mentioned and that is not absolute but subject to be overruled by a legislative vote. I« four States—Rhode Island, North Carolina, West Virginia and Ohio—the Governor was even denied any vetp power though in some of these in later years it has been conferred.
As to the Judicial.department the power of the Executive over it was in the appointment of the Judges. This at first wfls very general but now the number of States has been reduced to seven in which they are appointed by the Governor, with the consent of the Senate. The control of the Judiciary department by the Legislative was more complete in that in those States where the Governor appoints, the Senate branch can affirm or reject his nomination, and
i Cons. Law, sec. 100.