The moment we consider the situation philosophically we perceive why using a court to control a coordinate legislature must, nearly inevitably, be sooner or later fatal to the court, if it asserts its prerogative. A court to be a fit tribunal to administer the municipal law impartially, or even relatively impartially, must be a small body of men, holding by a permanent and secure tenure, guarded from all pressure which may unduly influence them. Also they should be men of much experience and learned in the precedents which should make the rules which they apply stable and consistent. In short, a court should be rigid and emotionless. It follows that it must be conservative, for its members should long have passed that period of youth when the mind is sensitive to new impressions. Were it otherwise, law would cease to be cohesive. A legislature is nearly the antithesis of a court. It is designed to reflect the passions of the voters, and the majority of voters are apt to be young. Hence in periods of change, when alone serious clashes between legislatures and courts are likely to occur, as the social equilibrium shifts the legislature almost certainly will reflect the rising, the court the sinking power. I take the Dred Scott Case as an illustration. In 1857 the slaveholding interest had passed the zenith of high fortune, and was hastening toward its decline. In the elections of 1858 the Democratic party, which represented slavery, was defeated. But the Supreme Court had been organized by Democrats who had been dominant for many years, and it adhered, on the principle laid down by Jeffreys, to the master which created it.
Occasionally, it is true, a court has been constructed by a rising energy, as was the Supreme Court in 1789, but then it is equally tenacious to the instinct which created it. The history of the Supreme Court is, in this point of view, eminently suggestive. The Federalist instinct was constructive, not destructive, and accordingly Marshall’s fame rests on a series of constructive decisions like M’Culloch v. Maryland, Cohens v. Virginia, and Gibbons v. Odgen. In these decisions he either upheld actual national legislation, or else the power of the nation to legislate. Conversely, whenever Marshall or his successors have sought to obstruct social movement they have not prospered. Marbury v. Madison is not an episode on which any admirer of Marshall can linger with satisfaction. In theory it may be true, as Hamilton contended, that, given the fact that a written constitution is inevitable, a bench of judges is the best tribunal to interpret its meaning, since the duty of the judge has ever been and is now to interpret the meaning of written instruments; but it does not follow from this premise that the judges who should exercise this office should be the judges who administer the municipal law. In point of fact experience has proved that, so far as Congress is concerned, the results of judicial