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constitute it, nor necessarily produce it. Their ultimate permanence, therefore, among the men of our race, must depend, not on themselves, but on their results.
The true analysis of the function of the Supreme Court as the conservator of the Constitution involves, consequently, the further inquiry, What is the value of the Constitution to those who dwell under the shadow of its protection?
It rests upon the foundation stone of popular sovereignty. The true definition of that familiar and muchabused phrase is not always kept in view. The sovereignty of the people is not the arbitrary power or blind caprice of the multitude any more than of an aristocracy or a despot. It is not the right of any class, small or great, high or low, to wrong or oppress another. It is not a struggle between classes at all. It is simply recognition of the natural and equal rights of men as a basis of a government formed for their protection by its people, and regulated by law. A system under which every citizen, in the peace of God and of the State, shall be assured by indefeasible right and not by favor or sufferance, in the enjoyment of his life, his liberty, his property in all its forms, his home, his family relations, his freedom of conscience and of speech. The powers of government, in all their extent and elaboration, come down at last to this ultimate purpose. For this they exist, and on this foundation is raised all that renders social life desirable. “In my mind,” said Lord Brougham, “he was guilty of no error, he was chargeable with no exaggeration, he was betrayed by his fancy into no metaphor, who once said that all we see about us, Kings, Lords, and Commons, the whole machinery of the State, all the apparatus of the system and its varied workings, end in simply bringing twelve good men into a box."
The world has seen empires and dynasties without number based upon arbitrary power. But for the most part it has seen them perish. They have illuminated the page of history, but with the light of the comet and the meteor, not of the stars. The civilization they have brought forth has been as transient as themselves. Neither government nor civilization contained any element of permanence, until they came to be founded upon
the principles of civil and religious liberty. Magna Charta was therefore the starting-point, not merely of free institutions, but of the only civilization that ever did or ever could survive political systems and pass on unimpaired from the ruins of the construction of another. Its striking and memorable language no rhetoric las been able to improve, no casuistry to obscure. When it broke upon the world it proclaimed a new era, the dawning of a better day for humanity, in which the rights of man became superior to government, and their protection the condition of allegiance. The great thought matured with a slow but certain growth. Battles enough were fought for it, but never in vain, until at last it came to be established forever upon English soil, and among the English race on every soil. And the highest eulogy upon the British constitution was spoken when Chatham said:
“The poorest man may in his cottage bid defiance to all the forces of the crown; it may be frail, its roof may be shaky, the wind may blow through it; the storm may enter, the rain may enter, but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenant.” But the great orator could go no further; he could not say that the British Parliament might not enter the home of the subject, for all the judges of England are powerless in the face of an Act of Parliament, whatever it may be. It was reserved for the American Constitution to extend the judicial protection of personal rights, not only against the rulers of the people, but against the representatives of the people.
The history of the Saxon race exhibits few changes more striking than the succession of power. First, in the king; then when royal supremacy became intolerable, in the hands of the barons, who struck the earliest blow for freedom, and long stood between the throne and the people, the supporters of the one, the protectors of the other. When in the course of time that oligarchy had in its turn abused its authority, it passed to the Parliament chosen by the people. And when at last the founders of our Constitution, driven to revolution by Parliamentary oppression, had learned that even representative government cannot always be depended upon by those it represents, they placed the protection of personal rights beyond
the reach of the popular will, and found in a constitutional judiciary the true and final custodian of the liberty of the subject.
The maintenance of these rights against all Federal interference was conferred upon the Court by amendment, almost immediately after the adoption of the Constitution, and as soon as it was perceived that the power ought to be expressed, because it might fail to be implied. The protection of them against State invasion in one important particular,—the inviolability of contracts,—was provided in the original Constitution. And when, twentytwo years ago, the interference of the States with the rights of life, liberty, and property was forbidden by the Fourteenth Amendment, the jurisdiction of the Court over this great subject became complete, and will, beyond doubt, always remain so. But one exception still exists, in the power of Congress, within the limited scope of its authority, to pass a law, though it may impair the obligation of a pre-existing contract.
Other topics of constitutional interpretation will always remain. The time will never come when questions of conflicting authority between the States and the Nation will cease to rise. But that field must gradually grow smaller, and its inquiries less critical. The main landmarks have now been planted, the boundary lines traced, the cardinal rules strongly and clearly established. Future labor in that direction, though constant, will be easier and plainer than in the century that has passed away.
But new attacks upon individual rights in many forms and under many pretexts, are beginning to be heard of, and are to be looked for in an increasing measure. The accursed warfare of classes is the danger that appears chiefly to threaten the future. It requires little prescience to perceive that the burden of constitutional administration by the Court is to shift thereafter in a considerable degree from the preservation of the machinery of government, to the enforcing of its ultimate object; from conflicts between the States and the Federation, to those between the State and the citizen, involving the protection of property, of contracts, of personal rights. But the best assurance that the Court will be found equal to the emergencies that are to come, whatever they may prove to
be, is seen in the success with which it has encountered those of the past. And that success is most clearly shown by the public confidence it has inspired. The people of this country have learned to have faith in the Court, and pride in it. Elevated and in a measure isolated as it is, they still feel it to be their own. Many a plain man has never seen it, nor ever expects to see it. He cannot discriminate its jurisdiction nor understand its procedure. The principles of its jurisprudence are not for his comprehension. But he reposes with a more confident security under the roof his industry has raised, and enjoys with a better assurance the liberty that has made him free, because he knows there is a limit which oppression cannot transgress; that he can never be disseized, nor outlawed, nor otherwise destroyed; that no agency of power can go upon him or send upon him, but by the judgment of his peers and the law of the land; and he believes that if the worst should come to the worst, and wrong and outrage should be found intolerable and yet without other redress, there is still laid up for him a remedy under the Constitution of his country, to be based in some way or other, in the Supreme Court of the United States.
Long and late may it be, sir, before that confidence is shaken. If it is sometimes child-like in its simplicity, it is always noble in its origin. Long and late may it be before even the suggestion shall penetrate the faith of common men that the highest American justice is not for them. May no consideration of convenience, no pressure of business, ever seek its relief in any limitation which shall carry the idea to the body of the people that there is reserved in this country for the powerful corporation, the millionaire, and the great financier, an ultimate justice that the humbler citizen cannot reach; that a ruinous case may be decided against him without redress; and yet the same judgment in the case of another man, whose dealings are larger in amount though smaller in relative consequence, may be reversed and set aside as unlawful and unjust. Lawyers know that purely constitutional questions are not measured by figures. But that discrimination between the special and the general jurisdiction can neither be made nor understood by the mass of men. And such questions form, after all, but a very small part of
the administration of justice. Public confidence is a sensitive plant. No institution in a free government can afford to endanger it.
And thus, by the inexorable logic of sound constitutional principles, it has been brought to pass, that the rights of the people find their last and best security, not in the popular assembly, nor in any agency of its creation, but in that institution of government which is furthest of all beyond the popular reach, which is made, as far as any institution can be, independent of public feeling, and invulnerable to the attack of majorities. Having its origin in the sovereignty of the people it is the bulwark of the people against their own unadvised action, their own uninstructed will. It saves them not merely from their enemies but it saves them from themselves. And so it perpetuates the sovereignty from which it sprang; and which has best provided for its own supremacy by the surrender of a power it was dangerous to retain. For this purpose alone, aside from those necessary to its own maintenance, does the National government cross the line of the States. All merely legal rights of the citizen, outside of Federal affairs, are left dependent upon the authority of the State in which he is found. The only cardinal personal rights are taken in charge by the Nation, as between the Government and the individual, because only through that protection can be assured either the value or the permanence of a Constitution which is itself the government and itself the Union.
The experience of American free government has shown that it is the tendency of its legislative branches to decrease, and of its judicial power to rise, in public estimation. It has added a fresh demonstration to the truth that is as old as the history of freedom, that it must find its safety where it found its origin, in the exertions of those to whom truth is better than popularity, and right superior to gain. And it has proved again what has been proved so often, that the only liberty humanity can tolerate is the liberty that is under the law.
To you, our especial and most honored guests—Justices of the Court, whose nativity we celebrate--more than Patres Conscripti in our Republic—the Bar of this country, in all its length and breadth, has to-day but one greeting