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means of securing their observance were not likewise provided in the exalted and extraordinary power of the courts to declare when a law, passed by Congress, or an act, committed by an official, is in contradiction of some provision of the Constitution. There is no express grant to the courts of such a power; it is simply deduced from the necessity of determining when there is a conflict which law they must apply to the cause of action, the law of Congress or the rule of the Constitution. Hence the courts have no authority to pass upon the constitutionality of legislation, except when the settlement of this question is necessary in deciding the issue of a bona-fide cause of action, brought before the court by bona-fide litigants. But whenever it becomes in this way necessary to pass upon the constitutionality of national and State legislation, the decision of the court is binding upon all the parties to the suit, and upon all others whose rights are in any way affected by the judgment of the court.

The same dread of the possession of absolute power by any department of the government is to be observed in the limitations of this extraordinary judicial power. The Supreme Court of the United States is not placed by the Constitution above the other departments of the government, with the power to prohibit any unconstitutional exercise of power by them. Not at all. This power to pass

upon the constitutionality of a law or official act is only acquired by the court as an incident of its duty to enforce the law between parties litigant. The judgment of the United States Supreme Court on a constitutional question is not binding upon the President or upon Congress. Each department is required to obey the Constitution, according to the light in which the question under discussion is viewed by it. Andrew Jackson vetoed the bill providing for the maintenance of a system of banks by the Federal Government, on the ground that the bill was unconstitutional, although the Supreme Court had pronounced a similar bill to be within the constitutional power of Congress. Furthermore, Mr. Jefferson refused to obey the order of the court in Marbury v. Madison (1 Cranch, 137'), while Mr. Lincoln ignored the opinion of Chief-Justice Taney,' that the presidential proclamation of the suspension of the writ of habeas corpus was an unconstitutional exercise of authority. This is not all. The Supreme Court is still further shorn of its power by giving

'In this case, Mr. Madison, as Secretary of State under President Jefferson, had refused to issue the commission of one Marbury, who had been appointed to a judicial position by President Adams on the last day of his term of office, but who had not received his commission of the retiring President. The Supreme Court undertook to compel the new Secretary of State to issue the commission, but the mandamus was ignored by the President and his Secretary.

In Ex parte Merryman, Taney's Circuit Decisions, Campbell's Rep., 246.

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to Congress the power to increase the number of ⚫ the Supreme Court judges, and thus, with the aid of the President, to change the composition and tendencies of the court. If at any time the Supreme Court should too persistently withstand any popular demand in a case in which the people will not submit to the judicial negative, by an increase in the number of the judges and the appointment to the newly created judgeships of men who will do the people's bidding, the popular will may be realized.

I do not think there can be much doubt that the danger of official tyranny has been successfully dissipated in the American constitutional system,except so far as such tyranny may be demanded by a popular majority,—by the frequency of the elections and the short terms of service. Officials of all classes are too anxious to secure popular approval to make the administration of their offices a popular menace. They have their fingers constantly upon the public pulse, and every expression of popular approval and disapproval is noted. Indeed, the direct and constant responsibility of almost all classes of officials to public opinion, through frequent popular elections, goes very far towards nullifying any superior merit which the written constitution possesses over an unwritten constitution. For these officials, instead of attempting to throttle the popular will, are too ready to obey every popular caprice,

it matters not how grievously the written Constitution may be thereby violated. And were the judges of the federal bench elected for short terms of service, and by popular election, as is the case in many of the States with respect to the State judiciary, the written Constitution would serve very little purpose. It is not needed for the protection of the people against the tyranny of the officials; its only value is to serve as a check upon the popular will in the interest of the minority. By making the federal judiciary hold office during good behavior, and by providing in the Constitution for one Supreme Court, which cannot be abolished by congressional action, the means have been provided, in ordinary times of peace, of protecting the minority against the abso lutism of a democratic majority. It enables a small body of distinguished men, whose life-long career is calculated to produce in them an exalted love of justice and an intelligent appreciation of the conflicting rights of individuals, and the life-tenure of whose offices serves to withdraw them from all fear of popular disapproval; it enables these independent, right-minded men, in accordance with the highest law, to plant themselves upon the provisions of the written Constitution, and deny to popular legislation the binding force of law, whenever such legislation infringes a constitutional provision. This is the real value of the written Constitution. It

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legalizes, and therefore makes possible and successful, the opposition to the popular will.

But this opposition, when most successful, does not serve as a complete barrier to the popular will. Not only do the judges themselves fall under the influence of the prevalent sense of right, and ordinarily give in their decisions an accurate expression of it, but the various checks upon this veto power of the courts also serve to make their action only a dilatory proceeding; or, to adopt the happy expression of James Russell Lowell,' this overruling power of the Supreme Court of the United States is but an obstacle "in the way of the people's whim, not of their will." But with this limitation, extensive as it is, the written Constitution serves a most beneficent purpose. If one professes any faith at all in popular government, he must confess to a desire that the popular will shall prevail, and that the danger to the commonwealth lies not in the people's will but in their whims and ill-considered wishes. And even if the student does not have any faith in popular government, he must admit that, with an enlightened and spirited people, who know their strength, and who know that the living power in all municipal law proceeds from them, it is an absolute impossibility to suppress the popular will. Happy is that country whose consti

1 "Democracy, and Other Addresses” (1887), p. 24.

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