That is the safe twofold rule; nor is the first part of it any whit less
important than the second; nay, more; to-day it is the part which most
requires to be emphasized. For just here comes in a consideration of
very great weight. Great and, indeed, inestimable as are the advantages
in a popular government of this conservative influence,--the power of
the judiciary to disregard unconstitutional legislation,--it should be
remembered that the exercise of it, even when unavoidable, is always
attended with a serious evil, namely, that the correction of legislative
mistakes comes from the outside, and the people thus lose the political
experience, and the moral education and stimulus that come from fighting
the question out in the ordinary way, and correcting their own errors.
If the decision in Munn _v._ Illinois and the “Granger Cases,”
twenty-five years ago, and in the “Legal Tender Cases,” nearly thirty
years ago, had been different; and the legislation there in question,
thought by many to be unconstitutional and by many more to be
ill-advised, had been set aside, we should have been saved some trouble
and some harm. But I venture to think that the good which came to the
country and its people from the vigorous thinking that had to be done in
the political debates that followed, from the infiltration through every
part of the population of sound ideas and sentiments, from the rousing
into activity of opposite elements, the enlargement of ideas, the
strengthening of moral fibre, and the growth of political experience
that came out of it all,--that all this far more than outweighed any
evil which ever flowed from the refusal of the court to interfere with
the work of the legislature.
The tendency of a common and easy resort to this great function, now
lamentably too common, is to dwarf the political capacity of the people,
and to deaden its sense of moral responsibility. It is no light thing to
do that.
Public-domain text, read in full here on John Shaqi.
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