thout perhaps
intending all that his words literally conveyed, "We are under a
Constitution, but the Constitution is what the judges say it is." A
decade later it was suggested by an eminent law teacher that attorneys
arguing "due process cases" before the Court ought to address the
Justices not as "Your Honors" but as "Your Lordships"; and Senator
Borah, in the Senate debate on Mr. Hughes' nomination for Chief Justice,
in 1930, declared that the Supreme Court had become "economic dictator
in the United States". Some of the Justices concurred in these
observations, especially Justices Holmes and Brandeis. Asserted the
latter, the Court has made itself "a super-legislature" and Justice
Holmes could discover "hardly any limit but the sky" to the power
claimed by the Court to disallow State acts "which may happen to strike
a majority [of its members] as for any reason undesirable".[77]

The fourth period is still with us. It was ushered in by World War I,
but its results were consolidated and extended during the 1930's, and
have been subsequently still further enlarged and confirmed by World War
II and the "cold war". Many of these results have been treated above.
Others can be searched out in the pages of this volume. What they sum up
to is this: that what was once vaunted as a Constitution of Rights, both
State rights and private rights, has been replaced to a great extent by
a Constitution of Powers. The Federal System has shifted base in the
direction of a consolidated national power; within the National
Government itself there has been an increased flow of power in the
direction of the President; even judicial enforcement of the Bill of
Rights has faltered at times, in the presence of national emergency.

In this situation judicial review as exercised by the Supreme Court does
not cease being an important technique of government under the
Constitution, but its field of operation has contracted. The purpose
which it serves more and more exclusively is the purpose for which it
was originally created to serve, the maintenance of the principle of
National Supremacy. But in fact, this is the purpose which it has always
served predominantly, even in the era when it was cutting its widest
swathe in the field of national legislative policy, the period from 1895
to 1935. Even then there was a multiplicity of state legislatures and
only one Congress, so that the legislative grist that found its way to
the Court's mill was over