State Constitutional Law in 1933–341

More than ten years ago, the Earl of Birkenhead, former Lord Chancellor of Great Britain, speaking before the American Bar Association, expressed the belief that it was a question for the future to determine whether the barriers which the framers of the constitutions placed upon the complete freedom of legislative assemblies in the United States will prove equal to the emergencies as they arise and will be as adaptable to the stress and strain of political exigencies as the more flexible and more democratic arrangements of the British constitution. “Your constitution,” he remarked, “is expressed and defined in documents which can be pronounced upon by the Supreme Court. In this sense, your judges are the masters of your executive. Your constitution is a cast-iron document. It falls to be construed by the Supreme Court with the same sense of easy and admitted mastery as any ordinary contract. This circumstance provides a breakwater of enormous value against ill-considered and revolutionary changes.” On the other hand, so far as England is concerned, the genius of the Anglo-Saxon people has, rightly or wrongly, refused to shackle in the slightest degree the constitutional competence of later generations. Any law of Great Britain can be altered by Parliament and no court may challenge the constitutional force of an act of Parliament. It is on the whole premature, thought Lord Birkenhead, to decide whether you or we have been right.