It must be added, however, that in one respect this function of the judiciary has had an unfortunate effect in lessening rather than developing in the people the sense of constitutional morality.  In your country the power of Parliament is omnipotent, and yet in its legislation it voluntarily observes these great fundamental decencies of liberty which in the American Constitution are protected by formal guarantees.  This can only be true because either your representatives in Parliament have a deep sense of constitutional morality, or that the constituencies which select them have so much sense of constitutional justice that their representatives dare not disregard these fundamental decencies of liberty.

In the United States, however, the confidence that the Supreme Court will itself protect these guaranties of liberty has led to a diminution of the sense of constitutional morality, both in the people and their representatives.  It abates the vigilance which is said to be ever the price of liberty.

Laws are passed which transgress the limitations of the Constitution without adequate discussion as to their unconstitutional character, for the reason that the determination of this fact is erroneously supposed to be the exclusive function of the judiciary.

The judiciary, contrary to the common supposition, has no plenary power to nullify unconstitutional laws.  It can only do so when there is an irreconcilable and indubitable repugnancy between a law and the Constitution; but obviously laws can be passed from motives that are anti-constitutional, and there is a wide sphere of political discretion in which many acts can be done which, while politically anti-constitutional, are not juridically unconstitutional.  For this reason, the undue dependence upon the judiciary to nullify every law which either in form, necessary operation, or motive transgresses the Constitution has so far lessened the vigilance of the people to protect their own Constitution as to lead to its serious impairment.

5.

The fifth fundamental principle was a system of governmental checks and balances.

The founders of the Republic were not enamoured of power.  As they viewed human history, the worst evils of government were due to excessive concentration of power, which like Othello’s jealousy “makes the meat it feeds on.”

This system of checks and balances again illustrates that the Constitution is the great negation of unrestrained democracy.  The framers believed that a people was best governed that was least governed.  Therefore, their purpose was not so much to promote efficiency in legislation as to put a brake upon precipitate action.