DEPARTMENTS OF GOVERNMENT though superficially it might be thought correct. Roosevelt received 7,620,332 votes in 1904, as against 7,220,077 for McKinley in 1900. Before "an overwhelming endorse ment" can be predicated upon these facts it should appear that under relatively similar conditions his vote at least exceeded McKinley's. i I assume that the growth in population since 1900 was at least in proportion to the preceding decade, and in that case it would be two per cent per annum, or eight per cent for the four years. No reason is perceived why the vote should not increase in the same ratio, so that Roosevelt's vote in 1904 to equal McKinley 's in 1900 should be eight per cent, or 577,606 larger than 7,220,077, or 7,797,683. On the contrary, he fell short of that number 177,351. What created the general impression of "an overwhelming endorsement" was the fact that Parker fell short of Bryan's vote 1,280,985, giving Roosevelt an abnormally large popular majority. The total vote in 1904 was 435 '7 23 smaller than in 1900, when, with an equally general expression of the people at the polls, there should have been eight per cent, or 1,117,176 more than in 1900, showing that 1,552,899 voters failed to vote, as compared with 1900. The overwhelming result was not caused by more votes for Roosevelt, but by less for the other tickets, so that the people can hardly be said to have given an overwhelm ing endorsement of anything. JUDICIARY. "The judicial power of the United States is vested in one Supreme Court and in such inferior Courts as Congress may from time to time ordain and establish." (Con., Art. Ill, sec. i .) Hamilton believed that the judicial was "beyond comparison, the weakest of the three departments of power. " In the essen tial right which it has asserted and main tained to pass upon the constitutionality of legislation, it has demonstrated that it is all
81
powerful, and in restraining the other depart ments within their constitutional orbits, it is the real guarantor of the rights and liberties of the people. Without the fearless exercise of this power ' ' the distribution of its powers and the vesting their exercise in separate departments would be an idle ceremony." Experience has demonstrated that there was never a more baseless notion than that the judgment of the Legislature upon the question of constitutionality of legislation is as reliable as that of the Court. I could cite an instance within my own knowledge of a distinguished lawyer of unusual courage and decision, voting as a legislator for a proposition, which, within two years there after, acting in a judicial capacity, he denounced with righteous and indignant vigor as unconstitutional, in making it unlawful for one class of men to do an act which another class of men, under like cir cumstances, were permitted to do. That is the difference between a limited and a life tenure. When you "control another man's means of living" you may control his will. "Alas, our frailty is the cause, not we." In a comparison of courage in resisting the popular demand for unconstitutional legis lation the advantage would not be with the Federal as compared with the State legis lature. The rule under which an act will be held unconstitutional has been settled from Marbury v. Madison (i Cranch, 177) to Fairbanks v. United States (181 U. S., 285), where Mr. Justice Brewer says: "The constitutionality of an act of Con gress is a matter always requiring the most careful consideration. The presumptions are in favor of constitutionality, and before a Court is justified in holding that the legislative power has been exercised beyond the limits granted, or in conflict with restrictions imposed by the fundamental law, the excess or conflict should be clear. And yet, when clear, if written Constitutions are to be regarded as of value, the duty of the Court is plain to uphold the Constitu
