liberties of individuals, interpretation of the Constitution by
the Supreme Court falls into four tolerably distinguishable periods. The
first, which reaches to the death of Marshall, is the period of the
dominance of the Constitutional Document. The tradition concerning the
original establishment of the Constitution was still fresh, and in the
person and office of the great Chief Justice the intentions of the
framers enjoyed a renewed vitality. This is not to say that Marshall did
not have views of his own to advance; nor is it to say that the
historicity of a particular theory concerning the Constitution is
necessarily a matter of critical concern save to students of history. It
is only to say that the theories which Marshall urged in support of his
preferences were, in fact, frequently verifiable as theories of the
framers of the Constitution.

The second period is a lengthy one, stretching from the accession of
Chief Justice Taney in 1835 to, say, 1895. It is the period _par
excellence_ of Constitutional Theory. More and more the constitutional
text fades into the background, and the testimony of the _Federalist_,
Marshall's sole book of precedents, ceases to be cited. Among the
theories which in one way or other received the Court's approval during
this period were the notion of Dual Federalism, the doctrine of the
Police Power, the taboo on delegation of legislative power, the derived
doctrine of Due Process of Law, the conception of liberty as Freedom of
Contract, and still others. The sources of some of these doctrines and
the nature of the interests benefited by them have been indicated
earlier in these pages. Their net result was to put the national
law-making power into a strait-jacket so far as the regulation of
business was concerned.

The third period was that of Judicial Review pure and simple. The Court,
as heir to the accumulated doctrines of its predecessors, found itself
for the time being in possession of such a variety of instruments of
constitutional exegesis that it was often able to achieve almost any
result in the field of constitutional interpretation which it considered
desirable, and that without flagrant departure from judicial good form.
Indeed, it is altogether apparent that the Court was in actual
possession and in active exercise of what Justice Holmes once termed
"the sovereign prerogative of choice." It was early in this period that
Governor Hughes, soon to ascend the Bench, said, wi