an exceedingly convenient means of defending it against
encroachments. If it is set near the boundary and allowed to
stay there unchallenged, it may in time become itself the
accepted boundary. But if the attempt is made to establish a
factitious boundary by the mere act of setting up a fence the
effort fails."[Footnote: Freedom and Responsibility, 30.]
Americans took principles and institutions with which they had
become familiar in colonial days and made their Constitutions out
of them. Their attachment to what the Constitution provides goes
behind the Constitution to the rock of ancient custom and
precedent on which it rests, the common heritage of all the
States.

There is an obvious reason for the unwillingness of the judiciary
to exercise the power under consideration unless in case of
necessity. The legislature presumably does only what the public
sentiment of the day justifies or demands. One branch of it, at
least, is the direct representative of the people. To defeat the
operation of a statute is therefore always presumably an
unpopular thing to do, and if in any case there is known to be
truth behind the presumption, it requires, as the Federalist
[Footnote: No. LXXVIII.] put it, "an uncommon portion of
fortitude in the judges to do their duty as faithful guardians of
the constitution."

It is seldom that an inferior court declares a statute void. The
mere fact that it was enacted by the legislature imports the
opinion of that body that it was within its powers; and such an
opinion of a department of government is entitled to great
respect. If a different, opinion is to prevail, it should