North found it bad enough for the
Supreme Court to hold that, under the Constitution, Congress could not
exclude slavery from the national territory beyond a certain boundary
which had been fixed by compromise between the North and South. But the
North would have found it intolerable if the Court, while fully
conceding that Congress might so legislate, if the character of the
legislation commended itself to the judges, had held the Missouri
Compromise to be unconstitutional because they thought it
_unreasonable_. Yet this, in substance, is what our courts have done.
And this brings me to the consideration of American courts as
legislative chambers.

FOOTNOTES:

[6] The relation of courts to legislation in European countries has been
pretty fully considered by Brinton Coxe, in _Judicial Power and
Constitutional Legislation_.

[7] _Federalist_ No. LXXVIII.

[8] _The Federalist_, No. LXXVIII.

[9] _The Federalist_, No. LXXVIII.

[10] Cohens _v_. Virginia, 6 Wheaton 415.

[11] To Madison, Ford, 9, 275.

[12] Marshall's constitutional doctrine was not universally accepted,
even in the courts of the northern states, until long afterward. As
eminent a jurist as Chief Justice Gibson of Pennsylvania, as late as
1825, gave a very able dissenting opinion in opposition in Eakin _v_.
Raub, 12 S.&R., 344.

[13] Memoirs, I, 322.

[14] Hepburn _v._ Griswold, 8 Wallace 603. Decided in conference on Nov.
27, 1869, more than a month before Grier's resignation. Knox _v_. Lee,
12 Wallace 457.

[15] 157 U.S. 608.

[16] Pollock _v_. The Farmers' Loan & Trust Co., 158 U.S. 715.

[17] In 1889 Mr. J.C. Bancroft Davis compiled a table of the acts of
Congress which up to that time had been held to be unconstitutional. It
is to be found in the Appendix to volume 131 U.S. Reports, page CCXXXV.
Mr. Davis has, however, omitted from his list the Dred Scott Case,
probably for the technical reason that, in 1857, when the cause was
decided, the Missouri Compromise had been repealed. Nevertheless, though
this is true, Tansy's decision hinged upon the invalidity of the law.

Besides the statutes which I have mentioned in the test, the two most
important, I suppose, which have been annulled, have to me no little
interest. These are the Civil Rights Act of 1875, and the Employers'
Liability Act of 1906. The Civil Rights Act of 1875 grew rapidly
unpopular, and the decision which overturned it coincided with the
strong drift of opinion. T