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 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.


FOOTNOTES:

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