would cease to be
cohesive. A legislature is nearly the antithesis of a court. It is
designed to reflect the passions of the voters, and the majority of
voters are apt to be young. Hence in periods of change, when alone
serious clashes between legislatures and courts are likely to occur, as
the social equilibrium shifts the legislature almost certainly will
reflect the rising, the court the sinking power. I take the Dred Scott
Case as an illustration. In 1857 the slaveholding interest had passed
the zenith of high fortune, and was hastening toward its decline. In the
elections of 1858 the Democratic party, which represented slavery, was
defeated. But the Supreme Court had been organized by Democrats who had
been dominant for many years, and it adhered, on the principle laid down
by Jeffreys, to the master which created it.

Occasionally, it is true, a court has been constructed by a rising
energy, as was the Supreme Court in 1789, but then it is equally
tenacious to the instinct which created it. The history of the Supreme
Court is, in this point of view, eminently suggestive. The Federalist
instinct was constructive, not destructive, and accordingly Marshall's
fame rests on a series of constructive decisions like M'Culloch _v_.
Maryland, Cohens _v_. Virginia, and Gibbons _v_. Odgen. In these
decisions he either upheld actual national legislation, or else the
power of the nation to legislate. Conversely, whenever Marshall or his
successors have sought to obstruct social movement they have not
prospered. Marbury _v_. Madison is not an episode on which any admirer
of Marshall can linger with satisfaction. In theory it may be true, as
Hamilton contended, that, given the fact that a written constitution is
inevitable, a bench of judges is the best tribunal to interpret its
meaning, since the duty of the judge has ever been and is now to
interpret the meaning of written instruments; but it does not follow
from this premise that the judges who should exercise this office should
be the judges who administer the municipal law. In point of fact
experience has proved that, so far as Congress is concerned, the results
of judicial interference have been negative. And it would be well if in
other spheres of American constitutional development, judicial activity
had been always negative. Unfortunately, as I believe, it has extended
into the domain of legislation. I will take the Dred Scott Case once
more to illustrate my meaning. The