are sworn to support the Constitution as fully as are the judges. It is to be presumed that in their official acts they mean to sup port it. Only in a clear case should it be held by the courts that they have failed in this purpose. It is always a misfortune when a statute is judicially pronounced unconstitutional and void by anything less than a unanimous court. A dissenting opinion, under ordinary circumstances, is almost a demonstration that the statute may fairly be held to be con sistent with the Constitution. At the National Democratic Convention, held in 1896 for the nomination of a Presi dent, one of the Kansas delegates advocated the insertion in the party platform of the following declaration: "Our theory of government is, in the main, averse to the decision of one, but relies with confidence upon the voice of the whole. From very necessity, the judicial branch of the government must, in matters of con stitutional right, become the final arbiter, and to the end that its determination shall have that highest confidence and respect, as being the determination practically of the whole, rather than of one, we would com mend to the thoughtful and patriotic con sideration of our country, the advisability of the following amendment to our national Constitution: "That before any act of Congress which shall have been regularly enacted according to the general forms provided for the enact ment of laws by Congress, and duly approved by the President as the representative of the executive branch of the nation, shall be held void by the judicial department of the government as being in conflict with the Constitution, such decision shall be the con current opinion of seven (7) judges of the Supreme Court." This was rejected, and probably wisely. Any numerical rule of decision tends to sub stitute quantity for quality. The proposition, however, voices a general feeling that this great power vested in the judiciary should
be exercised with caution, and is open to abuse. Nor is it to be denied that it often reflects the popular and even the political feeling of the day, or of the former day in which the judges giving the decision were appointed. This, however, is not an unmixed evil Theory may be perfect; practice is imperfect. The best government, as Solon said, is the best which the 'people subject to it will endure. Authority may be too rigid; it may be strained till it snaps. This atmospheric influence of the judicial surroundings increases with the public in terest in the questions to be determined. No bad illustration of it was furnished by the "Dred Scott Case" in 1856. Almost ever}' great public measure in those days was con sidered in Congress and out of it largely in view of its relations to slavery. Did it tend to strengthen the hold of that institution upon the nation? Then the South was for it, and the North was divided. Of those who were then upon the Supreme Court of the United States, the Chief Justice and four of his associates were from Southern States. All five, with one of the Justices from the North, stood for the doctrine that the Mis souri Compromise was unconstitutional and void. It purported, they said, to dictate to the people of the United States what should be the character of their local institutions. and this was outside the powers with which Congress had been invested, and never within the view of those who framed the Constitution. "I look in vain," said one of the strongest of the Associate Justices, Camp bell, of Louisiana, "among the discussions of the time, for the assertion of a supreme sovereignty for Congress over the territory then belonging to the United States, or that they might thereafter acquire. I seek in vain for an annunciation that a consolidated power had been inaugurated, whose subject com prehended an empire, and which had no restriction but the discretion of Congress. This disturbing element of the Union entirely escaped the apprehensive previsions of
