And he develops the principle further:
But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the government, to undertake (in courts of law) to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground.[414]
147. The American constitutions are expressed and implied, limitations of governmental powers, though popularly considered as grants of such powers. “The truth is,” wrote Hamilton in The Federalist, “the Constitution is itself, in every rational sense, and to every useful purpose, a Bill of Rights.” It is “the Bill of Rights of the Union.” It declares and specifies “the political privileges of the citizens in the structure and administration of the government.” It “defines certain immunities and modes of proceeding which are relative to personal and private concerns.” It comprehends “various precautions for the public security which are not to be found in any of the State constitutions.”[415] James Wilson agreed with Hamilton that the Constitution is itself a Bill of Rights, remarking, in reply to the objection that the Constitution as it left the hands of its framers and went to the country had no Bill of Rights:
A Bill of Rights would have been improperly annexed to the federal plan (i. e., the Constitution, 1787), and for this plain reason that it would imply that whatever is not expressed was given, which is not the principle of the proposed Constitution.[416]
As constitutions are the most solemn form of limitations of governmental powers, their interpretation determines the whole character of the government. The principle of constitutional interpretation is that
words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its founders.[417]
The effect of the judicial pronouncement of the unconstitutionality of a law is to make it “in legal contemplation, as inoperative as if it had never been passed.”[418]
148. To whatsoever extent State or federal officials perform ministerial functions they are answerable to the judiciary for their acts. Ministerial officers comprise the vast body of appointees in the States and in the United States. They are not executive officers, for such perform functions distinctively outside judicial investigation, but as distinctively within the political powers of the legislature. The judiciary is a powerful limitation of ministerial powers, in the sense that the performance of those powers is examinable in courts of law.[419]
In the popular mind the veto power may seem to be the principal executive check on legislation. This conviction takes form in State constitutions[420] which authorize the Governor to veto any item in an appropriation bill, or to cut the item down.
One result of this popular conviction is acquiescence in exercise of executive power which, in former times would have been interpreted by the people as “executive usurpation.” At present the people rely upon their executives,—Governors, Presidents,—to act as a check,—a limitation,—on unwise legislation. This reliance, or expectation, is a powerful element in practical politics. Thus the limitations of government in America are threefold: first, the American constitutions themselves; secondly, frequent popular elections, and thirdly, the judiciary in its interpretation of constitutions and laws. These limitations are constitutional limitations. There is a fourth limitation but it belongs to another sphere,—the sphere of politics.[421]