e freedom of contract, as the Sherman Law destroyed it, was to
infringe upon the "constitutional guaranty of due process of law." To
this the Chief Justice rejoined: "But the ultimate foundation of all
these arguments is the assumption that reason may not be resorted to in
interpreting and applying the statute.... As the premise is demonstrated
to be unsound by the construction we have given the statute," these
arguments need no further notice.[38]

Should Congress amend the Sherman Act, as it seems somewhat disposed to
do, by explicitly enacting the rule of the Trans-Missouri Case, a grave
issue would be presented. The Chief Justice might submit, and thus
avert, temporarily at least, a clash; or, he might hold such an
amendment unconstitutional as denying to the Court the right to
administer the law according to due process. A trial of strength would
then be imminent.

Nearly a century ago, Jefferson wrote to Spencer Roane, "The
Constitution, on this hypothesis, is a mere thing of wax in the hands of
the judiciary, which they may twist and shape into any form they
please."[39] And however much we may recoil from admitting Jefferson's
conclusion to be true, it none the less remains the fact that it has
proved itself to be true, and that the people have recognized it to be
true, and have taken measures to protect themselves by bringing the
judiciary under the same degree of control which they enforce on other
legislators. The progression has been steady and uniform, each advance
toward an assumption of the legislative function by the judiciary having
been counterbalanced by a corresponding extension of authority over the
courts by the people. First came the protest against Marbury and Madison
in the impeachment of Chase, because, as Giles explained, if judges were
to annul laws, the dominant party must have on the bench judges they
could trust. Next the Supreme Court of New York imagined the theory of
the Police Power, which was adopted by the Supreme Court of the United
States in 1837. But it stood to reason that if judges were to suspend
constitutional limitations according to their notions of reasonableness,
the people must have the means of securing judges whose views touching
reasonableness coincided with their own. And behold, within ten years,
by the constitution of 1846, New York adopted an elective judiciary.

Then followed the Dred Scott Case, the Civil War, and the attack on
legislative authority in Hepburn