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decided, the Missouri Compromise had been repealed.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would have been repealed had the judiciary supported it.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.

On the other hand, the Employers' Liability Act of 1906 was held bad
because Congress undertook to deal with commerce conducted wholly within
the states, and therefore beyond the national jurisdiction. The Court,
consequently, in the Employers' Liability Cases, simply defined the
limits of sovereignty, as a Canadian Court might do; it did not question
the existence of sovereignty itself. In 1908 Congress passed a statute
free from this objection, and the Court, in the Second Employers'
Liability Cases, 223 U.S. 1, sustained the legislation in the most
thoroughgoing manner. I know not where to look for two better
illustrations of my theory.




CHAPTER III