the compact, it ought to be rejected, although it may provide some temporary advantages in the eyes of speculative men." And, said Uriah Tracy of the same State: "You should not attempt an alteration without being able, by the test of experiment, to discern clearly the necessity of alteration, and without a moral certainty that the change shall not only remove an existing evil, but that it shall not produce any itself." 1

To the proposal to curb the power of the Supreme Court, the answer can be definitely made that there is no necessity for such an Amendment to the Constitution. The Court may err on occasions. It is not infallible, and like all other human institutions it makes its mistakes. Even Presidents and Members of Congress have been known to make mistakes. But the Court's degree of errancy has been small indeed; and if power is to be taken away, simply because of possibility of an erroneous exercise of power, little authority would be left in the hands of any branch of the Government. Moreover, as President Coolidge has said: "It is not necessary to prove that the Supreme Court never made a mistake; but if the power is to be taken away from them, it is necessary to prove that those who are to exercise it, would be likely to make fewer mistakes."2

Finally, the Constitution itself contains ample provision for remedying any mistakes of the judicial branch of the Government. The experience of the

18th Cong., 1st Sess., Griswold, Dec. 2, 1803, pp. 163, et seq.; Tracy, Dec. 8, 1803, p. 746. 7th Cong., 1st Sess., Morris, Feb. 3, 1802; Henderson, Feb. 15, 1802.

2 Speech of President Calvin Coolidge before the United States Chamber of Commerce in Washington, D. C., Oct. 23, 1924.

last twenty-five years clearly shows that if there is any change or reform in our Government which the people really want, and to which a decision of the Supreme Court is a temporary bar, such change or reform can be and is easily brought about by an Amendment to the Constitution. Hence, the present power of the Supreme Court to pass on the constitutionality of statutes can never really prevent a change actually desired by the people. The Court can only delay such change. And delay is by no means an evil. Delay produces careful consideration by the people; and if a proposed change is desirable, consideration by the people strengthens its chance of success. If the proposed change is not desirable, why give to Congress alone the right to enact it? One hundred and twenty-three years ago, Gouverneur Morris of New York said in a great debate in the United States Senate, in 1802: "The moment the Legislature of the Union declare themselves supreme, they become so. . . . The Sovereignty of America will no longer reside in the people, but in the Congress; and the Constitution is whatever they [the Congress] choose to make it." And Archibald Henderson of North Carolina said in the House, at the same time: "Concentrating judicial and legislative power in the same hands. . . is the very definition of tyranny; and whenever you find it, the people are slaves, whether they call their government a monarchy, republic or democracy.'

To-day, the Constitution reads: "This Constitution and the laws of the United States which shall be made in pursuance thereof. . . shall be the supreme law of the land." Some radicals would have it read:

"Acts of Congress and such parts of this Constitution as are in accordance therewith, shall be the supreme law of the land."

Each American citizen must consider whether he is willing to trust Congress with such proposed unlimited, uncontrollable, final power, and with the supreme authority to judge the extent of its own powers, not only over the rights of individuals but over the rights of the States. And he will certainly conclude that rights of liberty, of property, and of State sovereignty are more likely to be guarded by a majority of a Court than by a majority of a Congress - a Congress which may be swayed at any particular time by political, sectional, or class appeal a Congress which may be influenced "by the power and wealth of vested interests on one day and by the passing whim of popular passion on another day" a Congress which may be looking to see the influence of its decisions on party success and personal chances of reëlection. He will certainly conclude that, if any body of men is to possess final and uncontrolled power of ultimate judgment as to his constitutional rights and as to the constitutional restrictions imposed on the Legislature and the Executive, such power can be more safely lodged in Judges, not dependent for election on partisan issues in passionate political campaigns, but guided only by their conscience and the Constitution, uninfluenced by hope of popular or Executive favor, undisturbed by fear as to their tenure of office so long as they are honest, and under no obligation to comply with Executive or Congressional desire or dictation.

As has been pointed out in the first chapter of this

book, the abolition of the Court's power of judicial review would not destroy the United States as a Nation; and as Mr. Justice Holmes has said: "The United States would not come to an end." But it would inevitably eventually destroy our present form of Government. Instead of a federal republic with limited powers, we would become a centralized consolidated government with unlimited powers. If American citizens wish to change to that form, should they not do so directly and consciously, rather than by the indirect method, embodied in a Constitutional Amendment lessening the powers of the Supreme Court?1

1 In the Introductory Chapter of my book, The Supreme Court in United States History (1922), pp. 16, 17, I have stated that as between the two powers vested in the Court — that of passing on the constitutionality of State statutes, and that of passing on the constitutionality of Acts of Congress, the latter power "may fairly be termed of the lesser importance." Some persons have inferred that I, therefore, did not regard the Court's possession of the latter power as of importance. This is a wrong inference. I was treating only of relative importance; and my view was that, were the Court deprived of the first power, the whole successful operation of the Nation as a united Nation would have been imperilled; for the United States could not have held together, had the different States been at liberty, each for itself, to construe the extent of their own powers. On the other hand, with the Court deprived of the second power, the United States might have held together, since Congress could have enforced its supreme will upon the States; but it would have held together under an entirely different form of Government from that which our ancestors intended or their successors desired.

CHAPTER SIX

THE PROPOSAL TO VEST IN A MINORITY OF THE COURT THE POWER TO CONTROL ITS DECISIONS

"The first principle of republicanism is that the law of the majority (lex majoris partis) is the fundamental law of every society of individuals of equal rights; to consider the will of the society enounced by the majority of a single vote, as sacred as if unanimous is the first of all lessons in importance, yet last which is thoroughly learned," JEFFERSON to F. H. Alexander Von Humboldt, June 13, 1817.

THOMAS

"To give a minority a negative upon the majority, which is always the case where more than a majority is requisite to a decision, is, in its tendency, to subject the sense of the greater number to that of the lesser." ALEXANDER HAMILTON in The Federalist, No. 22, Dec. 15, 1787.

"When a cause has been adjudged according to the rules and forms of the country, its justice ought to be presumed. Even error in the highest Court, which has been provided as the last means of correcting the errors of others and whose decrees are therefore subject to no other revisal, is one of those inconveniences flowing from the imperfection of our faculties, to which every society must submit; because there must be somewhere a last resort, wherein contestations may end. Multiply bodies of revisal as you please, their number must still be finite, and they must finish in the hands of fallible men as judges." - THOMAS JEFFERSON to the British Minister, George Hammond, March 29, 1792.

Some persons, who disagree with the results of the decisions made by the Court in certain cases decided in the exercise of its judicial power of review of statutes, admit that its power ought not to be impaired to the extent advocated by Senator La Follette, yet, at the same time, suggest another serious modification or regulation of the Court's judicial