rs later, in 1898. In that case it appeared that the
State of Nebraska had, in 1893, reduced freight rates within the state
about twenty-nine per cent, in order to bring them into some sort of
relation to the rates charged in the adjoining State of Iowa, which were
calculated to be forty per cent lower than the Nebraska rates. Several
of the most opulent and powerful corporations of the Union were affected
by this law, among others the exceedingly prosperous and influential
Chicago, Burlington & Quincy Railway. No one pretended that, were the
law to be enforced, the total revenues of the Burlington would be
seriously impaired, nor was it even clear that, were the estimate of
reduction, revenue, and cost confined altogether to the commerce carried
on within the limits of the State of Nebraska, leaving interstate
commerce out of consideration, a loss would be suffered during the
following year. Trade might increase with cheaper rates, or economies
might be made by the company, or both causes and many others of
increased earnings might combine. Corporation counsel, however, argued
that, were the principle of the statute admitted, and should all the
states through which the line passed do the like, ultimately a point
might be reached at which the railway would be unable to maintain, even
approximately, its dividend of eight per cent, and that the creation of
such a possibility was conceding the power of confiscation, and,
therefore, an unreasonable exercise of the Police Power, by the State of
Nebraska. With this argument the Supreme Court concurred. They held the
Nebraska statute to be unreasonable. Very possibly it may have been
unsound legislation, yet it is noteworthy that within three years after
this decision Mr. Hill bought the Chicago, Burlington & Quincy, at the
rate of $200 for every share of stock of the par value of $100, thus
fixing forever, on the community tributary to the road, the burden of
paying a revenue on just double the value of all the stock which it had
been found necessary to issue to build the highway. Even at this price
Mr. Hill is supposed to have made a brilliant bargain.

This brings me to the heart of my theorem. Ever since Hamilton's time,
it has been assumed as axiomatic, by conservative Americans, that courts
whose function is to expound a written constitution can and do act as a
"barrier to the encroachments and oppressions of the representative
body."[33] I apprehend that courts can perfo