Chapter VI: Judicial Power in The United States (2) ***
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 destrys 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 the directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations haveagreed to confine his authority, he assumes a more important, and perhaps a more useful, influence than that of magistrate, but he ceases to be a rappresentative of the judicial power. The third characteristic of the judicial power is it 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 procedings,and usurp the censorship of the laws, would in some measure do violence to the passive nature of this 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 similas to that of the magistrate of other nations; and he is nevertheless invested with immense political power. If the sphere of this 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.
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