Occasionally, it is true, a court has been constructed by a rising energy, as was the Supreme Court in 1789, but then it is equally tenacious to the instinct which created it. The history of the Supreme Court is, in this point of view, eminently suggestive. The Federalist instinct was constructive, not destructive, and accordingly Marshall's fame rests on a series of constructive decisions like M'Culloch _v_. Maryland, Cohens _v_. Virginia, and Gibbons _v_. Odgen. In these decisions he either upheld actual national legislation, or else the power of the nation to legislate. Conversely, whenever Marshall or his successors have sought to obstruct social movement they have not prospered. Marbury _v_. Madison is not an episode on which any admirer of Marshall can linger with satisfaction. In theory it may be true, as Hamilton contended, that, given the fact that a written constitution is inevitable, a bench of judges is the best tribunal to interpret its meaning, since the duty of the judge has ever been and is now to interpret the meaning of written instruments; but it does not follow from this premise that the judges who should exercise this office should be the judges who administer the municipal law. In point of fact experience has proved that, so far as Congress is concerned, the results of judicial interference have been negative. And it would be well if in other spheres of American constitutional development, judicial activity had been always negative. Unfortunately, as I believe, it has extended into the domain of legislation. I will take the Dred Scott Case once more to illustrate my meaning. The North found it bad enough for the Supreme Court to hold that, under the Constitution, Congress could not exclude slavery from the national territory beyond a certain boundary which had been fixed by compromise between the North and South. But the North would have found it intolerable if the Court, while fully conceding that Congress might so legislate, if the character of the legislation commended itself to the judges, had held the Missouri Compromise to be unconstitutional because they thought it _unreasonable_. Yet this, in substance, is what our courts have done. And this brings me to the consideration of American courts as legislative chambers. FOOTNOTES: [6] The relation of courts to legislation in European countries has been pretty fully considered by Brinton Coxe, in _Judicial Power and Constitutional Legislation_. [7] _Federalist_ No. LXXVIII. [8] _The Federalist_, No. LXXVIII. [9] _The Federalist_, No. LXXVIII. [10] Cohens _v_. Virginia, 6 Wheaton 415. [11] To Madison, Ford, 9, 275. [12] Marshall's constitutional doctrine was not universally accepted, even in the courts of the northern states, until long afterward. As eminent a jurist as Chief Justice Gibson of Pennsylvania, as late as 1825, gave a very able dissenting opinion in opposition in Eakin _v_. Raub, 12 S.&R., 344. [13] Memoirs, I, 322.