modern
initiative and referendum, and a citizen claims that the statute
deprives him of some right guaranteed by the constitution, the people
should not be the judge; much less should a majority. If the
individual is left to be the judge of his constitutional or legal
right as against the government, the result would be anarchy. If the
government, even the most popular government, is to be the judge, the
result would often be tyranny. There would be occasions, as there have
been, when an excited people or majority would tyrannize over the
individual, indeed over the minority. To secure alike the people
against anarchy and the individual against tyranny, power must
be vested in some impartial, independent arbiter to determine
authoritatively and finally the relative rights and duties of each
under the constitution.

The proper department to be made the depositary of this important
power would seem to be the judicial. That department does not
initiate, has no policies, does not act of its own volition, but acts
only when its action is regularly invoked in some controversy and then
only to end that controversy. It may seem unnecessary even to state,
much less defend, the proposition, but as its logical result is that
the judiciary when invoked by the individual must refuse effect, so
far as he is concerned, to a legislative act which deprives him of
some right guaranteed by the constitution, and must thus disappoint
those who procured the passage of the act, the proposition has been,
is still being, denied. The action of the courts in exercising that
power has been and is even now denounced as usurpation. Though the
proposition is now long established, these attacks justify some
repetition of the argument in its support. The logic of Chief Justice
Marshall in _Marbury_ v. _Madison_, 1 _Cranch_ 137 _at p. 176_, seems
to me irresistible and worthy of frequent quotation despite the
attacks upon it. The Chief Justice said: "This original and supreme
will (of a people) organizes the government and assigns to different
departments their respective powers. It may either stop here,
or establish certain limits not to be transcended by those
departments.... The government of the United States is of the latter
description. The powers of the legislature are defined and limited;
and that those limits may not be mistaken or forgotten, the
Constitution is written. To what purpose are powers limited and to
what purpose is that limitatio