The rule of construction that has been under consideration has especial application to acts of Congress. When the constitutionality of a state law is involved, the principle is not always applicable. If the question at issue is as to whether a given power resides in the Federal Government or in the States, the fact that a state legislature in its enactment has asserted that it is vested in the States, is no presumption in favor of the validity of this the right to make laws have not merely made a mistake, but have made a very clear one, - so clear that it is not open to rational question. That is the standard of duty to which courts bring legislative acts: that is the test which they apply, - not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the Constitution has charged with the duty of making it. This rule recognizes that, having regard to the great, complex, ever-unfolding exigencies of government, much which will seem unconstitutional to one man, or body of men, may reasonably not seem so to another; that the Constitution admits of different interpretations; that there is often a range and choice of judgment; that in such cases the Constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional."

Judge Baldwin, in his work on The American Judiciary (p. 103), asserts that, inasmuch as the judgment of the Supreme Court holding unconstitutional an act of Congress is often, and indeed usually, rendered by a divided court, the principle that a congressional statute will not be held void so long as there is a reasonable doubt as to its invalidity, is not applied. " The majority must concede," he says, " that there is a reasonable doubt whether the statute may not be consistent with the Constitution, since some of their associates must have such a doubt, or go further and hold that there is no inconsistency between the two documents, the statute and the Constitution." This argument is not convincing. Admitting that either one or the other of the two opinions must be conceded to the dissenting justices, it doe3 not follow that the doctrine of reasonable doubt is shown to be repudiated. The question which the Supreme Court, as a court, has to decide is as to the existence of this reasonable doubt. There may of course be a difference of opinion as to this, but it is still this fact which the court seeks to determine and which controls its decision. It is no more proper to say that the principle is repudiated when the court is not unanimous, than to hold that in passing by a divided court upon a question of contributory negligence, the principle of reasonable doubt is not applied.

As to whether in recent years courts in fact are guided by the rule under consideration, see article by W. F, Dodd, " Growth of Judicial Power," in Pol. Sci. Quar. XXIV, 193.

decision. The Supreme Court in passing finally upon this point is not, then, called upon to review the act of a co-ordinate department, but has to decide between the conflicting claims of two governments, and, quite properly, feels itself at liberty to decide the point as an original proposition; namely, upon the basis of its own judgment as to what is the most reasonable construction of the constitutional provisions involved.

If, however, the state law, whose constitutionality is questioned, is with reference to a matter admittedly within the province of the States, and the question is simply whether that power has been properly exercised, there is held to be a strong presumption that the act is constitutional. Thus, for example, if it is a question whether the States have the power to regulate interstate commerce, or to tax a national bank, or to naturalize aliens, or enact bankruptcy laws, there is no presumption in favor of the constitutionality of acts in which' the state power is asserted. If, however, it is a question, for example, whether the police powers, admittedly belonging to the States, have been constitutionally exercised, the presumption is that they have been so exercised.

An excellent illustration of this last, is seen in the treatment by the Supreme Court of the oleomargarine laws of Pennsylvania in the case of Powell v. Pennsylvania,20 decided in 1887. The plaintiff in error had been indicted for selling oleomargarine, plainly marked as such, in violation of a Pennsylvania law absolutely forbidding the sale and production of that commodity within the State. Powell offered to prove that the oleomargarine was pure and as wholesome as butter, and that, in fact, it differed from butter only in that it had a slightly smaller per cent of a substance termed butterine, which gave a flavor to but had nothing to do with the wholesomeness of the product. He claimed, therefore, that a law forbidding the production and sale of this article was not a proper exercise of the police powers of the State, and operated to deprive him of that liberty and property which the Fourteenth Amendment to the federal Constitution guaranteed him. The Supreme Court of the United States, without questioning the facts asserted regarding the wholesomeness of oleomargarine, upheld the state law, declaring that it could not "adjudge that the defendant's rights of liberty and property have been infringed by the statute of Pennsylvania, without holding that, although it may have been enacted in good faith for the objects expressed in its title, namely, to protect the public health and prevent the adulteration of dairy products and fraud in the sale thereof, it has, in fact, no real or substantial relation to those objects." This, the Supreme Court said, it could not affirm. Whether or not the law is needed as a protection to the public, the court declared to be a question of fact belonging primarily to the state legislature to determine. "And," the court continued, "as it does not appear upon the face of the statute, or from any facts of which the court must take judicial cognizance, that it infringes rights secured by the fundamental law, the legislative determination of those questions is conclusive upon the courts."

20 127 U. S. 678; 8 Sup. Ct. Rep. 992; 32 L ed. 253.

When the federal Supreme Court is called upon to consider the constitutionality of a state law as determined by its conformity with the Constitution of the State, the state Constitution is construed as having for its general purpose the placing of limitations upon the powers of the legislature; whereas, of course, the federal •Constitution is viewed as a grant of legislative power. In other words, whereas the federal legislature is construed to have only those powers granted to it expressly or impliedly by the federal Constitution, the state legislatures are considered to possess all powers not expressly or impliedly withdrawn from them by the federal or respective state Constitutions.

In those cases in which the courts of the States are called upon to consider the constitutionality of the acts of their own lawmaking bodies as tested by the federal or their own state Constitutions, they of course have to deal with the acts of a department of government co-ordinate in power with themselves; and, therefore, they hold themselves, or at least should hold themselves, hound in all cases to give to the laws that same benefit of rational doubt which the federal Supreme Court gives to acts of Congress.

In concluding this subject, it is proper to observe that this preliminary legislative or executive interpretation of constitutional powers having such an importance as we have seen attached to it, the responsibility for its proper exercise is proportionately great. Those legislators, therefore, who vote for a measure without being evinced of its constitutionality, and excuse themes upon the ground that, if their action is not valid, the courts e the opportunity to so declare, are recreant to their duty. Not only, as we have seen, may serious consequences follow from these before their invalidity is judicially determined, but, what is of still more importance, an unfortunate burden is thrown upon the courts. No popular government can successfully endure in which the decisions of its courts do not receive the general approval of the citizen body. But if legislatures recklessly pass measures ostensibly for the benefit of the masses, but invalid when ed by the fundamental law, the odium of defeating these measures is thrown upon the courts, and a popular objection to and distrust of these courts created. For, of course, the people generally cannot be expected to appreciate the constitutional questions involved. All that they can see and appreciate is that their legislative representatives have enacted a measure in their interests, which the courts have declined to recognize as valid.