surrender to the people their official trusts at stated periods, as most other officers of our general and State governments do. I am therefore at a total loss to understand in what sense it can justly be said that the Supreme Court is "of the people, by the people, and for the people." Its strength and steadiness consist in the fact that it is not a democratic institution. Out of touch with the people, it is not swayed by the thought or clamor of the hour. It is well for the people that it is not so swayed. It is for the people in much the same sense that the King, the Emperor, the Pope is for the people. It is not for them in the sense that it is part of them, or that it depends upon them. It indeed possesses the power of declaring the law; but I am not prepared to assent to the conclusion that "this power keeps the whole mighty fabric of government from rushing to destruction." The power to declare the law resided in the judges of England, but it did not prevent the Revolution of Cromwell, which "hewed the throne down to a block; nor did the power of the Cromwellian judges prevent the restoration of Charles II.; nor did the, judges prevent the revolution which placed the scepter in the hands of William and Mary. Our Supreme Court possessed the power to declare the law at the time when it rendered the Dred Scott decision, but that did not prevent the Civil War. Its judges, for the most part, had the good sense not to attempt to interfere with the operations of that war. They sat in their judicial robes and administered justice with courage, dignity, and decorum while the thunder of hostile cannon could be heard across the Potomac.

XXII. Its Power to Amend the Constitution.

It is not merely the power to declare the law which makes the workings of that great tribunal so beneficent. It is the power to expound, and incidentally to amend, the constitution, that gives the court its transcendent importance. The constitution is the briefest political code. Its framers could not think of everything, foresee everything, provide for everything. Nevertheless, as it cannot be amended except with the consent of three-fourths of the States, formal amendments cannot be made except to meet the greatest exigencies. What a blessing

it is, then, for the people to have a wise, learned and patriotic bench of lawyers who can amend it by a progressive interpretation. For example, our fathers, who framed the constitution, some of them great lawyers, in drafting the judiciary article, forgot to say anything about corporations. How convenient, then, to have the word "citizen," as used in that article, interpreted so as to mean "corporation," a body which might be composed of non-residents, or aliens, or even of free negroes, who, under the Dred Scott decision, could not be citizens of the United States so as to sue in its courts as individuals. Without this useful amendment, the cherished corporations, which have done so much in promoting our industrial development, would have been remitted for their justice to the beggarly elements of the State judicatories. Moreover, this convenient power of amendment may be exercised back and forth according to changing times and exigencies. It may make the venerable instrument read so as to allow Congress to levy an income tax without an apportionment in time of war, and to prohibit it from doing so in time of peace. The exercise of this convenient power of amendment may be necessary, under imaginable circumstances, to prevent a revolution.

XXIII. The Keystone of the Arch.

Nor do I assent in its full meaning to the statement that "it is to the glory of the people, that always and everywhere has been yielded a willing obedience" to the decisions of that court. The statement is not true. A willing obedience was never rendered to the Dartmouth College decision, and it has been so far curtailed by a rising and expanding police power that it has nearly passed out of our constitutional law. A willing obedience was not rendered to the Dred Scott decision, and it was reversed, as I have said, upon the field of battle. A willing obedience has not been rendered to the Income Tax decision, and it will be reversed by the popular action whenever it becomes really necessary to raise revenue in that way. Nor do I assent to the conclusion that it is, under all circumstances, to the "glory" of

1 Springer v. United States, 102 N. Y. 586.

2 Pollock v. Farmers' Loan &c. Co., 157 U. S. 429, and 158 U. S. 601.

a free people that they yield obedience to the decrees of a nonelective body of lawyers. Those decrees may be right, and they may be wrong. In times past they have often been wrong; though in the case of the Supreme Court of the United States they have generally commanded the assent of the people. That statement is as much to the glory of the court as it is to the glory of the people. It is safe to say that, in future, the work of that court will command the approbation of the people as long as it deserves it. I do not seek to minimize its importance in the general workings of the government. I yield to none in the high esteem in which I hold it. It has been justly called the balance-wheel of our complicated Federal system. It is indeed the Keystone of the Arch. I should be ashamed to stand before an audience of my professional brethren and to say that the fabric of constitutional law which it has slowly and laboriously built up, does not, on the whole, command my reverence and admiration. What sort of a government would we have without that body of constitutional law? What a chaos it would be but for the 25th section of the Judiciary Act. But I deny that we are to extend to that, or to any other court, a fetish worship. I deny that it is so exalted that its proceedings do not deserve the same watchful vigilance on the part of the people which they bestow upon the other departments of their government. There can be no such thing as judicial infallibility. I have pointed out some of its manifest tendencies tendencies towards the aggrandizement of its own jurisdiction, at the expense of the powers of all other departments of government, Federal and State. I have pointed out some of the possibilities of a further aggrandizement of those powers. I have shown that, in the nature of things, that process of aggrandizement must go on so long as it is unchecked; since the body that is the conclusive judge not only of its own powers, but of the powers of all other departments of government, will aggrandize its own powers at the expense of the others. At the same time, I trust I am not an alarmist. I do not see in the court, as now constituted, any disposition to undermine and subvert the fabric of our government. Those judges, although non-elective, have no more motive for destroying the splendid fabric which they

and their predecessors have assisted in building up, than the King has to destroy his kingdom, the Emperor his empire, or the Pope and Cardinals their Church. While they have no motive for oppressing the people, their unquestioned tendency, in the great struggle which is coming between aggregated wealth and power on the one side, and the segregated masses on the other, is to side with wealth and power, and with the cultivation and intellect which go along with wealth and power. If that court is a conservator of the rights of property, it may be said that those rights need conservation against the modern spirit, rising and hourly increasing in strength, which is distinctly antagonistic to those rights. The right to hold and enjoy property, rightfully acquired, is of the very essence of liberty. Nor can we forget that the court has been equally zealous in upholding personal liberty, even as against military oppression. When the Civil War ended, and it was thereafter sought to try citizens by military commissions for crimes committed in connection with that war, the Supreme Court laid its heavy hand upon those who were making the attempt and said, "This shall not be done." When at the close of the Civil War, the Congress and some of the States sought to impose a test oath as a condition precedent to the right to practice law, the court said "No." When the United States sought to hold, without rendering compensation, the estates of General Lee, which it had seized for military uses during the Civil War, the court again said, "This shall not be done." When the Congress, stimulated by the motives and feelings of the Civil War, undertook, through the so-called Civil Rights Law, to impose police regulations upon the States, the court again said, "This shall not be done." the celebrated Slaughter-House cases, the court upheld the rights of the States to control their domestic concerns. The court, as was well said by one of its most distinguished members, is for the supremacy of the government, and also for

1 Ex parte Milligan, 4 Wall. (U. S.) 2.

'Ex parte Garland, 4 Wall. (U. S.) 838; Cummings v. Missouri, 4 Wall. (U. S.) 277.

In

3 United States v. Lee, 106 U. S. 196 4 Civil Rights Cases, 109 U. S. 8. Slaughter-House Cases, 16 Wall.

(U. S.) 86.

• Mr. Justice Harlan.

State's rights. The people owe it a debt of gratitude which they will never cease to render. It will never be unseated in their affections until it deserves to be.

It is true and there is great potency in the expressionthat it possesses the power to declare the law." It does not legislate directly; but when it lays down a rule of law in a contest between two suitors, it in effect publishes to the rest of us that when we bring a similar case before it for decision, it will decide it in the same manner. In that way it spreads among the people a silent but all-pervading law. It is true that you and I are not in strictness bound by a decision which any court may render in a lawsuit between Smith and Jones; as to us it is res inter alios acta, except in so far as we are admonished that the court will render a similar decision on the same state of facts in any suit to which we may be a party. The law that touches the defeated party in a civil action-that touches the convicted prisoner when called up for sentence that touches you and me- is nothing more than what the judge is going to say. It may not be "glorious," but it is a part of good citizenship, to yield obedience to that kind of law, although our elected representatives did not make it. Surrounded as we are by that law, it may be truthfully said that we are "lapped in universal law." The Great Tribunal has, indeed,

"Cleared the dark places and let in the law,

"And broke the bandit holds, and cleansed the land."

But, with all this, we cannot have Judicial Supremacy. We are still a self-governing people, and we will not have it. In the language of Mr. Hamilton, it is "the very definition of tyranny."