posing interests; but it may be said without fear of refutation that every statement made in the passages just cited has been overwhelmingly sustained by public opinion in this country for more than a hundred years. . Recently the debate has been reopened, and Chief Justice Marshall has been accused of being the originator of this doctrine; which, as stated by him in the case of Marbury vs. Madison, it is represented, was nothing less than usurpation of authority by the Court itself. Nothing could more clearly indicate opposition, not only to the Constitution itself, but to the primary purpose of a constitution, than such an accusation; for, if objection to the language of the Chief Justice has any significance whatever, it must be based on the distinction he draws between a “superior paramount law” and an “ordinary legislative act.” “The Constitution,” he writes, “is either a superior paramount law ... or it is on a level with ordinary legislative acts, and like other acts is alterable when the legislature shall please to alter it.” If, he argues, the Constitution is a superior and paramount law, then it must be obeyed; and whatever is contrary to it is legally void. If, on the other hand, the Constitution is alterable at the will of the legislature, "written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.” “Certainly,” he concludes, "all those who have framed written constitutions contemplated them as forming the fundamental and paramount law of the nation; and, consequently, the theory of every such government must be, that an act of the legislature repugnant to the Constitution is void. . It is emphatically the province and duty of the judicial department to say what the law is. ... If two laws conflict with each other, the courts must decide on the operation of each.”

THE ALLEGED "JUDICIAL OLIGARCHY”

Obviously, the authority of a court to decide what the law is, even to the extent of declaring null and void the acts of a legislative body, places in the judiciary a power that might conceivably be made the subject of abuse. It is, therefore, important to note that the same high authority who is held responsible for judicially maintaining the duty of the Supreme Court of the United States to determine the constitutionality of laws has also, in the strongest terms, emphasized the responsibility of this authoritative body. “The question,” says Chief Justice Marshall, “whether a law be void for its repugnancy to the Constitution is at times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The opposition between the Constitution and the law should be such that the judge feels a clear and

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strong conviction of their incompatibility with each other.”

This is a sound principle, and a violation of it in the form of a strained decision is, undoubtedly, itself an offense against the Constitution. That there have been occasional instances of it may, however, be freely admitted without warranting an assault upon the judiciary as such, and certainly without affording the slightest ground either for revising or for facilitating in general the future amendment of the Constitution.

When the worst has been said—and, undoubtedly, there is something to be saidagainst certain judicial decisions, especially against those which have been handed down by a bare majority of the Court against the exceptions taken by a minority, there is no just ground for speaking of a “judicial oligarchy”; as if the judges were, as a class, to be condemned as arbitrary rulers, overriding in their judicial capacity the desires

of the people as expressed by legislative acts. Without a doubt, if the whole body of legislative enactments and the whole body of judicial decisions were taken into account, it would be found that the decisions of the judges would approach much nearer to the public opinion of the time in which they were rendered as to what is just and right than the acts of legislatures they have annulled.

In this connection it must be borne in mind, as Mr. Lincoln pointed out in regard to the Dred Scott decision, that judicial judgments relate only to specific cases, and that such decisions may be rectified when they are demonstrably wrong. In no case do they irrevocably determine political principles in opposition to the verdict of deliberate public opinion. In truth—while certain legislative acts, if not judicially set aside as in conflict with the fundamental law, may lay the foundation for extended and irreparable encroachments upon private