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THE GREEN BAG
attempt to wrench this remark from its legitimate setting and distort it to sustain an entirely different contention is hardly worthy a serious discussion of so grave a question, however necessary it may be to influence public opinion. It may be said, in passing that this report did not receive the sanction of the American Bar Associa tion, as that body, without adopting or acting upon it by a vote of 113 to 29, referred it to the incoming committee. It is true that evolution is continually going on in the law, and that changes in conditions are factors in the legal development that applies and adjusts principles to meet existing business exigencies in an enlight ened and progressive spirit. But to say, as is openly intimated by some insurance people, that the Court is likely to yield to a widespread public demand, intensified by great and justifiable indignation caused mainly, be it remembered, by a most thorough, effective, and successful State investigation, certainly not excelled by any Federal investigation, reverse itself, and thus judicially amend the Constitution, is to stultify the Court. The Court is bound to be affected more or less by existing condi tions. That there should be by a portion of the press a deliberate propaganda to create a public sentiment for the express purpose of extra-judicially influencing the Court is intolerable. It is difficult to improve upon Cooley upon this point. He says: "Public sentiment and action affect such changes and the Courts recognize them; but a Court or Legislature which should allow a change in public sentiment to influence it in giving to a written Constitution a con struction not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty, and if its course could become a precedent, these instruments would be of little avail. The violence of public passion is quite as likely to be in the direction of oppression as in any other, and the neces sity for bills of rights in our fundamental
laws lies mainly in the danger that the Legislature will be influenced by temporary excitements and passions among the people, to adopt oppressive enactments. What a Court is to do, therefore, is to declare the law as written, leaving it to the people them selves to make such changes as new circum stances may require. "The meaning of the Constitution is fixed when it is adopted, and it is not different at any subsequent time when a Court has occasion to pass upon it. " (Cooley's " Constitutional Limitations," pp. 88, 89.) Story says: "What is to become of con stitutions of government if they are to rest, not upon the plain import of their words, but upon conjectural enlargements and restrictions to suit the temporary passions and interests of the day?" . . . "They are not to be frittered away to please the demagogues of the day. They are not to be violated to gratify the ambition of political leaders; they are to speak in the same voice now and forever. " (Story, V. ii, P- 653.) The idea that the Court is to be swept from its constitutional moorings by any popular wave lashed mountains high, though it may be by hysterical ephemeral passion, is vicious and dangerous to the last degree. It is perfectly true that the people are sovereign, but let us be able to say of the Court — "Heaven is above all; there sits a Judge that no king can corrupt."
If swaying the court by public opinion were to become a part of our policy, its inevitable corollary would be national plat forms pledging the President to fill vacancies by judges who could be relied on to carry out such constitutional views as demagogic platform makers might have seen fit to declare. This was thinly veiled in the Democratic platform of 1896, where, in connection with the income tax case, they declared that they looked for the reversal of that opinion "by the Court as it may be
