THE WORKING OF OUR SYSTEM OF CONSTITUTIONAL LAW
I have drawn attention to the immense service that Chief Justice
Marshall rendered to his country in the field of constitutional law, and
have considered a few of the cases. Since his time not twice the length
of his term of thirty-four years has gone by, but more than five times
the number of volumes that sufficed for the opinions of the Supreme
Court during his period is required for those of his successors on the
bench. Nor does even that proportion indicate the increase in the
quantity of the court’s business which is referable to this particular
part of the law. It has enormously increased. When one reflects upon the
multitude, variety, and complexity of the questions relating to the
regulation of interstate commerce, upon the portentous and ever
increasing flood of litigation to which the Fourteenth Amendment has
given rise; upon the new problems in business, government, and police
which have come in with steam and electricity, and their ten thousand
applications; upon the growth of corporations and of wealth, the changes
of opinion on social questions, such as the relation of capital and
labor, and upon the recent expansions of our control over great and
distant islands,--we seem to be living in a different world from
Marshall’s.
Under these new circumstances, what is happening in the region of
constitutional law? Very serious things, indeed.
The people of the States, when making new constitutions, have long been
adding more and more prohibitions and restraints upon their
legislatures. The courts, meantime, in many places, enter into the
harvest thus provided for them with a light heart, and too promptly and
easily proceed to set aside legislative acts. The legislatures are
growing accustomed to this distrust, and more and more readily incline
to justify it, and to shed the consideration of constitutional
restraints,--certainly as concerning the exact extent of these
restrictions,--turning that subject over to the courts; and, what is
worse, they insensibly fall into a habit of assuming that whatever they
can constitutionally do they may do,--as if honor and fair dealing and
common honesty were not relevant to their inquiries.
The people, all this while, become careless as to whom they send to the
legislature; too often they cheerfully vote for men whom they would not
trust with an important private affair, and when these unfit persons are
found to pass foolish and bad laws, and the courts step in and disregard
them, the people are glad that these few wiser gentlemen on the bench
are so ready to protect them against their more immediate
representatives.
From these causes there has developed a vast and growing increase of
judicial interference with legislation. This is a very different state
of things from what our fathers contemplated, a century and more ago,
in framing the new system. Seldom, indeed, as they imagined, under our
system, would this great, novel, tremendous power of the courts be
exerted,--would this sacred ark of the covenant be taken from within the
veil. Marshall himself expressed truly one aspect of the matter, when he
said in one of the later years of his life: “No questions can be brought
before a judicial tribunal of greater delicacy than those which involve
the constitutionality of legislative acts. If they become indispensably
necessary to the case, the court must meet and decide them; but if the
case may be determined on other grounds, a just respect for the
legislature requires that the obligation of its laws should not be
unnecessarily and wantonly assailed.” And again, a little earlier than
this, he laid down the one true rule of duty for the courts. When he
went to Philadelphia at the end of September, in 1831, on that painful
errand of which I have spoken, in answering a cordial tribute from the
bar of that city he remarked that if he might be permitted to claim for
himself and his associates any part of the kind things they had said,
it would be this, that they had “never sought to enlarge the judicial
power beyond its proper bounds, nor feared to carry it to the fullest
extent that duty required.”
That is the safe twofold rule; nor is the first part of it any whit less
important than the second; nay, more; to-day it is the part which most
requires to be emphasized. For just here comes in a consideration of
very great weight. Great and, indeed, inestimable as are the advantages
in a popular government of this conservative influence,--the power of
the judiciary to disregard unconstitutional legislation,--it should be
remembered that the exercise of it, even when unavoidable, is always
attended with a serious evil, namely, that the correction of legislative
mistakes comes from the outside, and the people thus lose the political
experience, and the moral education and stimulus that come from fighting
the question out in the ordinary way, and correcting their own errors.
If the decision in Munn _v._ Illinois and the “Granger Cases,”
twenty-five years ago, and in the “Legal Tender Cases,” nearly thirty
years ago, had been different; and the legislation there in question,
thought by many to be unconstitutional and by many more to be
ill-advised, had been set aside, we should have been saved some trouble
and some harm. But I venture to think that the good which came to the
country and its people from the vigorous thinking that had to be done in
the political debates that followed, from the infiltration through every
part of the population of sound ideas and sentiments, from the rousing
into activity of opposite elements, the enlargement of ideas, the
strengthening of moral fibre, and the growth of political experience
that came out of it all,--that all this far more than outweighed any
evil which ever flowed from the refusal of the court to interfere with
the work of the legislature.
The tendency of a common and easy resort to this great function, now
lamentably too common, is to dwarf the political capacity of the people,
and to deaden its sense of moral responsibility. It is no light thing to
do that.
What can be done? It is the courts that can do most to cure the evil;
and the opportunity is a very great one. Let them resolutely adhere to
first principles. Let them consider how narrow is the function which the
constitutions have conferred on them,--the office merely of deciding
litigated cases; how large, therefore, is the duty intrusted to others,
and above all to the legislature. It is that body which is charged,
primarily, with the duty of judging of the constitutionality of its
work. The constitutions generally give them no authority to call upon a
court for advice; they must decide for themselves, and the courts may
never be able to say a word. Such a body, charged, in every State, with
almost all the legislative power of the people, is entitled to the most
entire and real respect; is entitled, as among all rationally
permissible opinions as to what the constitution allows, to its own
choice. Courts, as has often been said, are not to think of the
legislators, but of the legislature,--the great, continuous body itself,
abstracted from all the transitory individuals who may happen to hold
its power. It is this majestic representative of the people whose action
is in question, a coördinate department of the government, charged with
the greatest functions, and invested, in contemplation of law, with
whatsoever wisdom, virtue, and knowledge the exercise of such functions
requires.
To set aside the acts of such a body, representing in its own field,
which is the very highest of all, the ultimate sovereign, should be a
solemn, unusual, and painful act. Something is wrong when it can ever be
other than that. And if it be true that the holders of legislative power
are careless or evil, yet the constitutional duty of the court remains
untouched; it cannot rightly attempt to protect the people, by
undertaking a function not its own. On the other hand, by adhering
rigidly to its own duty, the court will help, as nothing else can, to
fix the spot where responsibility lies, and to bring down on that
precise locality the thunderbolt of popular condemnation. The judiciary,
to-day, in dealing with the acts of their coördinate legislators, owe
to the country no greater or clearer duty than that of keeping their
hands off these acts wherever it is possible to do it. For that
course--the true course of judicial duty always--will powerfully help to
bring the people and their representatives to a sense of their own
responsibility. There will still remain to the judiciary an ample field
for the determinations of this remarkable jurisdiction, of which our
American law has so much reason to be proud; a jurisdiction which has
had some of its chief illustrations and its greatest triumphs, as in
Marshall’s time, so in ours, while the courts were refusing to exercise
it.