The Theory of Social Revolutions eBook

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interference have been negative.  And it would be well if in other spheres of American constitutional development, judicial activity had been always negative.  Unfortunately, as I believe, it has extended into the domain of legislation.  I will take the Dred Scott Case once more to illustrate my meaning.  The North found it bad enough for the Supreme Court to hold that, under the Constitution, Congress could not exclude slavery from the national territory beyond a certain boundary which had been fixed by compromise between the North and South.  But the North would have found it intolerable if the Court, while fully conceding that Congress might so legislate, if the character of the legislation commended itself to the judges, had held the Missouri Compromise to be unconstitutional because they thought it unreasonable.  Yet this, in substance, is what our courts have done.  And this brings me to the consideration of American courts as legislative chambers.


[6] The relation of courts to legislation in European countries has been pretty fully considered by Brinton Coxe, in Judicial Power and Constitutional Legislation.

[7] Federalist No.  LXXVIII.

[8] The Federalist, No.  LXXVIII.

[9] The Federalist, No.  LXXVIII.

[10] Cohens v.  Virginia, 6 Wheaton 415.

[11] To Madison, Ford, 9, 275.

[12] Marshall’s constitutional doctrine was not universally accepted, even in the courts of the northern states, until long afterward.  As eminent a jurist as Chief Justice Gibson of Pennsylvania, as late as 1825, gave a very able dissenting opinion in opposition in Eakin v.  Raub, 12 S.&R., 344.

[13] Memoirs, I, 322.

[14] Hepburn v. Griswold, 8 Wallace 603.  Decided in conference on Nov. 27, 1869, more than a month before Grier’s resignation.  Knox v.  Lee, 12 Wallace 457.

[15] 157 U.S. 608.

[16] Pollock v.  The Farmers’ Loan & Trust Co., 158 U.S. 715.

[17] In 1889 Mr. J.C.  Bancroft Davis compiled a table of the acts of Congress which up to that time had been held to be unconstitutional.  It is to be found in the Appendix to volume 131 U.S.  Reports, page CCXXXV.  Mr. Davis has, however, omitted from his list the Dred Scott Case, probably for the technical reason that, in 1857, when the cause was decided, the Missouri Compromise had been repealed.  Nevertheless, though this is true, Tansy’s decision hinged upon the invalidity of the law.

Besides the statutes which I have mentioned in the test, the two most important, I suppose, which have been annulled, have to me no little interest.  These are the Civil Rights Act of 1875, and the Employers’ Liability Act of 1906.  The Civil Rights Act of 1875 grew rapidly unpopular, and the decision which overturned it coincided with the strong drift of opinion.  The Civil Rights Cases were decided in October, 1883, and Mr. Cleveland was elected President in 1884.  Doubtless the law would have been repealed had the judiciary supported it.  Therefore this adjudication stood.

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