ourt either reverses itself, which is a disaster,
or the Constitution can be amended by the states, which is not only
difficult, but which, even if it be possible, entails years of delay.

Yet pressing emergencies arise, emergencies in which a settlement of
some kind must almost necessarily be reached somewhat rapidly to avert
very serious disorders, and it has been under this tension, as I
understand American constitutional development, that our courts have
resorted to legislation. Nor is it fair for us to measure the sagacity
of our great jurists by the standard of modern experience. They lived
before the acceleration of movement by electricity and steam. They could
not foresee the rapidity and the profundity of the changes which were
imminent. Hence it was that, in the spirit of great lawyers, who were
also possibly men tinged with a certain enthusiasm for the ideal, they
began their work by ruling on the powers and limitations of sovereignty,
as if they were ruling on the necessity of honest intent in dealings
with one's neighbor.

In 1789 General Washington is said to have offered John Jay his choice
of offices under the new government, and Jay chose the chief
justiceship, because there he thought he could make his influence felt
most widely. If so he had his wish, and very shortly met with
disappointment. In the August Term of 1792, one Chisholm, a citizen of
South Carolina, sued the State of Georgia for a debt. Georgia declined
to appear, and in February, 1793, Jay, in an elaborate opinion, gave
judgment for Chisholm. Jay was followed by his associates with the
exception of Iredell, J., of North Carolina. Forthwith a ferment began,
and in the very next session of Congress an amendment to the
Constitution was proposed to make such suits impossible. In January,
1798, five years after the case was argued, this amendment was declared
to be adopted, but meanwhile Jay had resigned to become governor of New
York. In December, 1800, he was again offered the chief justiceship by
John Adams, on the resignation of Oliver Ellsworth, but Jay resolutely
declined. I have often wondered whether Jay's mortification at having
his only important constitutional decision summarily condemned by the
people may not have given him a distaste for judicial life.

The Federalist attempt to enforce on the states a positive rule of
economic morality, therefore, collapsed at once, but it still remained
possible to approach the same problem f