legislate on any matter that is a purely State concern, the Act is constitutionally invalid. And similarly, State legislation encroaching on the Federal domain does not hold good. The Constitution therefore is, and must be, supreme, so that there may be certainty as to where the State and the Nation, stand relatively to one another, and so that the State powers may be placed beyond the control of or seizure by the Federation, and the Federal powers protected against resumption by the States. In other words, the Constitution is above the National and the State Legislatures. But if the Constitution is to remain supreme, and the distribution of powers between Nation and States, is fixed by it, the logical effect is that an "interpretative" body must be created to decide whether an Act infringes the Constitution or not. Without such a body, legislation might be inconsistent with the Constitution, and yet be operative because no one was empowered to declare its invalidity. Without it, it is quite conceivable that the Federal Government may exceed its Constitutional rights and trespass on State ground. The sovereignty of the State may be endangered, and both the "rigidity" of the Constitution and the Federal character of the union in jeopardy. With an encroaching Federal Parliament, in the absence of an interpretative body, the Constitution would practically be rendered 66 ""* flexible and of the Constitution. unification might easily result. There must be The Interpretation" a guardian of the Constitution" since "the legal supremacy of the Constitution is essential to the existence of the State." The Federal Convention which met at Philadelphia in 1787, was the first to hit upon the device of constituting the Federal Supreme Court Judges the "guardian," and its example has been followed by Canada and Australia. In these countries the Federal Court can be appealed to as the "final interpreter of the Constitution," and can decide whether a law proposed by the Federal Parliament encroaches on the rights of the State Legislatures and vice versa. This is generally done indirectly. Bills that have. been passed successfully through all the legislating processes are not necessarily referred to the judges of the Federal Court, but, as in the United States, if a case is brought before them, it may be that in arriving at some decision on that case they may have to express their views on the validity or otherwise of the Federal Act. Provision for Again, if the Constitution is supreme, a natural question to ask is, "How can it be changed whenever it is discovered to be defective in any particular?" In England, though one speaks of "the Constitution" and *For the use of the terms "flexible" and " rigid 119 and 120. "" see pages 66 of fundamental laws," there is neither one nor the other in the sense in which the people of a Federation understand the terms. If any of the so-called fundamental laws of England are distasteful or unsatisfactory, the British Parliament can remove them by the simple ordinary legislative process. It would rescind the law or pass another in the usual way. For example, it may be regarded as a fundamental law that England should be governed by a King and two Houses of Parliament. If the Parliament, however, were to agree by the ordinary methods to abolish one House, the original arrangement is set aside at once. In other words, Parliament controls the Constitution. Such a Constitution is said to be "flexible," because it is alterable without re- Flexible and Rigid course to any extraordinary procedure. Constitutions. Flexible Constitutions are possible, however, only where complete political unity or unification exists. But in Australia, the United States and the other Federal countries, the Constitution is above simple Parliamentary interference, and controls the Parliament. Any measure which violates the Constitution is invalid, even though it has proceeded through all the stages of an ordinary bill. If it were allowed the Federal Parliament to amend the Constitution when it so desired, the States would be at its mercy. On the other hand, it is clearly inconceivable to allow the State Parliament to amend it, since the Federal Parliament would be deprived of its sovereignty. The system would be of the nature of a weak Staatenbund or Confederation. “A Federal Constitution is in one aspect a compact between certain high contracting parties in the States and the Nation; and such a compact would lack stability if one of the parties could alter it at will." Yet it is evident that a Constitution cannot remain unaltered for ever. Unless provision be made for its amendment, the Constitution may clog the wheels of progress, and result in the accumulation of a strong force of discontent which, when it does break out, may carry with it to total destruction the whole fabric of the Federal system. The difficulty is surmounted by placing an amending power jointly in the hands of the people and the Federal Parliament, or by requiring unusual majorities in the Legislatures, or by the assembling of special constituent conventions representing both State and National interests, or by some such extraordinary procedure. This safeguard against ill-considered amendment renders the Constitution " rigid "-a term which signifies that some extraordinary authority is required before a change can be effected. Thus, though we have spoken of a double sovereignty-that of the States, and that of the Nation-yet we can regard neither Parlia as sovereign in an absolute sense. mentary sovereignty is limited by and subject to the Federal Constitution, and the force or amending power behind the Constitution is the real sovereign. In the United States the rea! sovereign is three-fourths of the Legislatures of the States; in Australia it is the people taken. collectively and as States, together with the Federal Parliament acting under special conditions.* *Vide infra, Chapter IX. |