e Constitution as interpreted by the judiciary, but to the
political and ethical views of the latter as well. The President and
Congress derive their authority from the Constitution, but the judiciary
claims, as we have seen, a control over legislation not conferred by the
Constitution itself. Yet, while laying claim to powers that would make
it supreme, the judicial branch of our Federal government has, as a
rule, been careful to avoid any open collision, or struggle for
supremacy, with the other branches of the government. It has retained
the sympathy and approval of the conservative classes by carefully
guarding the rights of property and, by declining to interfere with the
political discretion of Congress or the President, it has largely
escaped the hostile criticism which any open and avowed attempt to
thwart the plans of the dominant party would surely evoke. But in thus
limiting its own authority, the Supreme Court has attempted to make a
distinction between judicial and political powers which does not appear
to have any very substantial basis. The essential marks of a judicial
power, Judge Cooley tells us, are "that it can be exercised only in a
litigated case; that its direct force is spent in determining the rights
of the parties to that case; and that unless and until a case has arisen
for judicial determination, it can not be invoked at all."[92]

"The power given to the Supreme Court," he says, "to construe the
Constitution, to enforce its provisions, to preserve its limitations,
and guard its prohibitions, is not _political_ power, but is judicial
power alone because it is power exercisable by that court only in the
discharge of the judicial function of hearing and deciding causes in
their nature cognizable by courts of law and equity."[93]

In the first place it is to be observed that judicial power as thus
defined is practically co-extensive with that of the legislature, since
scarcely an exercise of legislative authority could be mentioned which
would not affect the rights of persons or of property and which could
not, therefore, be made the subject of a judicial controversy.

In the second place, it must be remembered that the Federal judiciary in
assuming the exclusive right to interpret the Constitution has taken
into its keeping a power which, as we have seen, was not judicial in
character when the Constitution was adopted, and is not even now
considered judicial in any other important country. In