plain. It has been judicially asserted that it must be plain
beyond a reasonable doubt, thus applying a rule of evidence which
governs the disposition of a criminal cause. As judgments
declaring a statute inconsistent are often rendered by a divided
court, this position seems practically untenable. The majority
must concede that there is a reasonable doubt whether the statute
may not be consistent with the Constitution, since some of their
associates either must have such a doubt, or go further and hold
that there is no inconsistency between the two documents.

This right of a court to set itself up against a legislature, and
of a court of one sovereign to set itself up against the
legislature of another sovereign, is something which no other
country in the world would tolerate. It rests on solid reason,
but as the Due de Noailles has said, "Un semblable raisonnement
ne ferait pas fortune aupres des republicans d'Europe, fort
chatouilleux sur le chapitre de la puissance legislative. C'est
que la notion de l'Etat differe d'une facon essentielle sur les
deux rives de l'Atlantique."[Footnote: Cent Ans de Republique aux
Etats-Unis, II, 145.]

Our people have been satisfied with the interposition of the
courts to defend their Constitutions from executive or
legislative attack, because these Constitutions stand for
something in which they thoroughly believe. President Hadley has
well said that "a written Constitution serves much the same
purpose in public law which a fence serves in the definition and
protection of private rights to real estate. A fence does not
make a boundary; it marks one. If it is set where a boundary
line has previously existed by tradition and agreement, it forms