underlay the action of the legislature. In the one case as in the other
the effort was unavailing, as Jefferson prophesied that it would be. I
have told of Marshall's overthrow in the Charles River Bridge Case, and
in 1887, after controversies of this category had begun to come before
the Supreme Court of the United States under the Fourteenth Amendment,
Mr. Justice Harlan swept Mr. Justice Comstock aside by quietly ignoring
an argument which was unanswerable.[24] The same series of phenomena
have appeared in regard to laws confiscating property invested in
lotteries, when opinion turned against lotteries, or in occupations
supposed to be unsanitary, as in the celebrated case of the taxing out
of existence of the rendering establishment which had been erected as a
public benefit to relieve the City of Chicago of its offal.[25] In fine,
whenever pressure has reached a given intensity, on one pretext or
another, courts have enforced or dispensed with constitutional
limitations with quite as much facility as have legislatures, and for
the same reasons. The only difference has been that the pressure which
has operated most directly upon courts has not always been the pressure
which has swayed legislatures, though sometimes both influences have
combined. For example, during the Civil War, the courts sanctioned
everything the popular majority demanded under the pretext of the War
Power, as in peace they have sanctioned confiscations for certain
popular purposes, under the name of the Police Power. But then, courts
have always been sensitive to financial influences, and if they have
been flexible in permitting popular confiscation when the path of least
resistance has lain that way, they have gone quite as far in the
reverse direction when the amount of capital threatened has been large
enough to be with them a countervailing force.

As the federal Constitution originally contained no restriction upon the
states touching the confiscation of the property of their own citizens,