“Due process of law” means that there are certain fundamental principles of liberty, not defined or even enumerated in the Constitution, but having their sanction in the free and enlightened conscience of just men, and that no man can be deprived of life, liberty, or property, except in conformity with these fundamental decencies of liberty.  To protect these even against the will of a majority, however large, the judiciary was given unprecedented powers.  It threw about the individual the solemn circle of the law.  It made the judiciary the final conscience of the nation.  Your nation cherishes the same primal verities of liberty, but with you, the people in Parliament, is the final judge.  We, however, are not content that a majority of the Legislature shall override inviolable individual rights, about which the judiciary is empowered to throw the solemn circle of the law.

This august power has won the admiration of the world, and by many is regarded as a novel contribution to the science of government.  The idea, however, was not wholly novel.  As previously shown, four Chief Justices of England had declared that an Act of Parliament, if against common right and reason, could be treated as null and void; while in France the power of the judiciary to refuse efficacy to a law, unless sanctioned by the judiciary, had been the cause of a long struggle for at least three centuries between the French monarch and the courts of France.  However, in England the doctrine of the common law yielded to the later doctrine of the omnipotence of Parliament, while in France the revisory power of the judiciary was terminated by the French Revolution.

The United States, however, embodied it in its form of government and thus made the judiciary, and especially the Supreme Court, the balance wheel of the Constitution.  Without such power the Constitution could never have lasted, for neither executive officers nor legislatures are good judges of the extent of their own powers.

Nothing more strikingly shows the spirit of unity which the Constitution brought into being than the unbroken success with which the Supreme Court has discharged this difficult and most delicate duty.  The President is the Commander-in-Chief of the Army and the Navy and can call them to his aid.  The legislature has almost unlimited power through its control of the public purse.  The States have their power reinforced by armed forces, and some of them are as great in population and resources as many of the nations of Europe.  The Supreme Court, however, has only one officer to execute its decrees, called the United States Marshal; and yet, without sword or purse, and with only a high sheriff to enforce its mandates, when the Supreme Court says to a President or to a Congress or to the authorities of a great—­and, in some respects, sovereign—­State that they must do this or must refrain from doing that, the mandate is at once obeyed.  Here, indeed, is the American ideal of “a government of laws and not of men” most strikingly realized; and if the American Constitution, as formulated and developed, had done nothing else than to establish in this manner the supremacy of law, even as against the overwhelming sentiment of the people, it would have justified the well-known encomium of Mr. Gladstone.