 How the state transcends its limits? As Bertrand as you've now has safely pointed out, through the centuries men have formed concepts designed to check and limit the exercise of state rule. And one after another, the state using its intellectual allies has been able to transform these concepts into intellectual rubber stamps of legitimacy and virtue to attach to its decrees and actions. Originally in Western Europe, the concept of divine sovereignty held that the kings may rule only according to divine law. The kings turned the concept into a rubber stamp of divine approval for any of the kings actions. The concept of parliamentary democracy began as a popular check upon absolute monarchial rule. It ended up with parliament being the essential part of the state and its every act totally sovereign. As Dejuvenail concludes, many writers on theories of sovereignty have worked out one of these restrictive devices. But in the end every single such theory has, sooner or later, lost its original purpose and come to act merely as a springboard to power by providing it with the powerful aid of an invisible sovereign with whom it could in time successfully identify itself. Similarly with more specific doctrines. The natural rights of the individual enshrined in John Locke and the Bill of Rights became a statist right to a job. Utilitarianism turned from arguments for liberty to arguments against resisting the state's invasions of liberty. Certainly the most ambitious attempt to impose limits on the state has been the Bill of Rights and the other restrictive parts of the American Constitution in which written limits on government became the fundamental law to be interpreted by judiciary supposedly independent of the other branches of government. All Americans are familiar with the process by which the construction of limits in the Constitution has been inexorably broadened over the last century. But few have been as keen as Professor Charles Black to see that the state has in the process largely transformed judicial review itself from a limiting device to yet another instrument for furnishing ideological legitimacy to the government's actions. For if a judicial decree of unconstitutional is a mighty check to government power an implicit or explicit verdict of constitutional is a mighty weapon for fostering public acceptance of ever greater government power. Professor Black begins his analysis by pointing out that the crucial necessity of legitimacy for any government to endure this legitimation signifying basic majority acceptance of the government and its actions. Acceptance of legitimacy becomes a particular problem in a country such as the United States where substantive limitations are built into the theory on which the government rests. What is needed adds Black is a means by which the government can assure the public that its increasing powers are indeed constitutional. And this he concludes has been the major historic function of judicial review. Let Black illustrate the problem. The supreme risk to the government is that of disaffection and a feeling of outrage widely disseminated throughout the population and loss of moral authority by the government as such. As long it may be propped up by force or inertia or the lack of an appealing and immediately available alternative. Almost everybody living under a government of limited powers must sooner or later be subjected to some governmental action which as a matter of private opinion he regards as outside the power of government or positively forbidden to government. A man is drafted though he finds nothing in the constitution about being drafted. A man is told how much wheat he can raise. He believes and he discovers that some respectable lawyers believe with him that the government has no more right to tell him how much wheat he can grow than it has to tell his daughter whom she can marry. A man goes to the federal penitentiary for saying what he wants to and he paces his cell reciting Congress shall make no laws abridging the freedom of speech. A businessman is told what he can ask and must ask for buttermilk. The danger is real enough that each of these people and who is not of their number will confront the concept of governmental limitation with the reality as he sees it of the flagrant overstepping of actual limits and draw the obvious conclusion as to the status of his government with respect to legitimacy. This danger is averted by the states propounding the doctrine that one agency must have the ultimate decision on constitutionality and that this agency in the last analysis must be part of the federal government. For while the seeming independence of the federal judiciary has played a vital part in making its actions virtual holy writ for the bulk of the people, it is also and ever true that the judiciary is part and parcel of the government apparatus and appointed by the executive and legislative branches. Black admits that this means that the state has set itself up as a judge in its own case, thus violating a basic judicial principle for aiming at just decisions. He brusquely denies the possibility of any alternative. Black adds, the problem then is to devise such governmental means of deciding as will hopefully reduce to a tolerable minimum the intensity of the objection that government is judged in its own case. Having done this you can only hope that this objection although theoretically still tenable will practically lose enough of its force that the legitimating work of the deciding institution can win acceptance. In the last analysis Black finds the achievement of justice and legitimacy from the state's perpetual judging of its own case as something of a miracle. Applying his thesis to the famous conflict between the Supreme Court and the New Deal Black chides his fellow pro-New Deal colleagues for their short-sightedness in denouncing judicial obstruction. The standard version of the story of the New Deal in the court though accurate in his way, displaces the emphasis. It concentrates on the difficulties. It almost forgets how the whole thing turned out. The upshot of the matter was, and this is what I would like to emphasise, that after some twenty-four months of bulking the Supreme Court without a single change in its law or its composition or indeed its actual manning placed the affirmative stamp of legitimacy on the New Deal and on the whole new conception of government in America. In this way the Supreme Court was able to put the quietess on the large body of Americans who had had strong constitutional objections to the New Deal. Of course not everyone was satisfied. The Bonnie Prince Charlie of the constitutionally commanded laissez-faire still stirs the hearts of a few zealots in the highlands of choleric unreality. But there is no longer any significant or dangerous public doubt as to the constitutional power of Congress to deal as it does with the national economy. We have no means other than the Supreme Court for imparting legitimacy to the New Deal. As Black recognises, one major political theorist who recognised and largely in advance the glaring loophole in the constitutional limit on government of placing the ultimate interpreting power in the Supreme Court was John C. Calhoun. Calhoun was not content with the miracle but instead proceeded to a profound analysis of the constitutional problem. In his disquisition Calhoun demonstrated the inherent tendency of the state to break through the limits of such a constitution. A written constitution certainly has many considerable advantages but it is a great mistake to suppose that the mere insertion of provisions to restrict and limit the power of the government without investing those for whose protection they are inserted with the means of enforcing their observance will be sufficient to prevent the major and dominant party from abusing its powers. Being the party in possession of the government they will, from the same constitution of man which makes government necessary to protect society be in favour of the powers granted by the constitution and oppose the restrictions intended to limit them. The minor or weaker party on the contrary would take the opposite direction and regard them the restrictions as essential to their protection against the dominant party. But where there are no means by which they could compel the major party to observe the restrictions the only resort left would be a strict construction of a constitution. To this the major party would oppose a liberal construction. It would be construction against construction the one to contract and the other to enlarge the powers of government to the utmost. But of what possible avail could the strict construction of the minor party be against the liberal construction of the major when the one would have all the power of the government to carry its construction into effect and the other be deprived of all means of enforcing its construction. In a contest so unequal the result would not be doubtful. The party in power of the restrictions would be overpowered the end of the contest would be the subversion of the constitution the restrictions would ultimately be annulled and the government be converted into one of unlimited powers. One of the few political scientists who appreciated Calhoun's analysis of the constitution was Professor J. Allen Smith. Smith noted that the constitution was designed with checks and balances to limit any one governmental power and yet had then developed a supreme court with the monopoly of ultimate interpreting power. If the federal government was created to check invasions of individual liberty by the separate states who was to check the federal power? Smith maintained that implicit in the check and balance idea of the constitution was the concomitant view that no one branch of the government may be conceded the ultimate power of interpretation. It was assumed by the people that the new government could not be permitted to determine the limits of its own authority since this would make it and not the constitution supreme. The solution advanced by Calhoun and seconded in this century by such writers as Smith was of course the famous doctrine of the concurrent majority. If any substantial minority interested in the country specifically a state government believed that the federal government was exceeding its powers and encroaching on that minority to veto this exercise of power as unconstitutional. Applied to state governments this theory implied the right of nullification of a federal law or ruling within a state's jurisdiction. In theory the ensuing constitutional system would assure that the federal government check any state invasion of individual rights while the states would check excessive federal power over the individual. And yet while limitations would undoubtedly be more effective than at present there are many difficulties and problems in the Calhoun solution. If indeed a subordinate interest should rightly have a veto over matters concerning it then why stop with the states? Why not place veto power in countries, cities, wards? Furthermore interests are not only sectional they are also occupational, social etc. What of bakers or taxi drivers or any other occupation? Should they not be permitted a veto power over their own lives? This brings us to the important point that the nullification theory confines its checks to agencies of government itself. Let us not forget that federal and state governments and their respective branches are still states and still guided by their own state interests rather than by the interest of private citizens. What is to prevent the Calhoun system from working in reverse with states tyrannizing over their citizens and only vetoing the federal government when it tries to intervene to stop that state tyranny or for states to acquiesce in federal tyranny? What is to prevent federal and state governments from forming mutually profitable alliances for the joint exploitation of the citizenry? And even if the private occupational groupings were to be given some form of functional representation in government, what is to prevent them from using the state to gain subsidies and other special privileges for themselves or from imposing compulsory cartels on their own members? In short, Calhoun does not push his path-breaking theory on concurrence far enough. He does not push it down to the individual himself. If the individual, after all, is the one whose rights are to be protected, then a consistent theory of concurrence would imply veto power by every individual. That is some form of unanimity principle. When Calhoun wrote that it should be impossible to put or to keep it the government in action without the concurrent consent of all he was perhaps unwittingly implying just such a conclusion. But such speculation begins to take us away from our subject for down this path like political systems which could hardly be called states at all. For one thing, just as the right of nullification for a state logically implies its right of secession, so a right of individual nullification would imply the right of any individual to secede from the state under which he lives.