The history of that trenchant policy of "reconstruction," which followed close upon the termination of the war, as at once its logical result and significant commentary, contains a vivid picture of the altered balances of the constitutional system which is a sort of exaggerated miniature, falling very little short of being a caricature, of previous constitutional tendencies and federal policies. The tide of federal aggression probably reached its highest shore in the legislation which put it into the power of the federal courts to punish a state judge for refusing, in the exercise of his official discretion, to impanel negroes in the juries of his court,11 and in those statutes which gave the federal courts jurisdiction over offenses against state laws by state officers.12 But that tide has often run very high, and, however fluctuating at times, has long been well-nigh irresistible by any dykes of constitutional state privilege; so that Judge Cooley can say without fear of contradiction that "The effectual checks upon the encroachments of federal upon state power must be looked for, not in state power of resistance, but in the choice of representatives, senators, and presidents holding just constitutional views, and in a federal supreme court with competent power to restrain all departments and all officers within the limits of their just authority, so far as their acts may become the subject of judicial cognizance."13
Indeed it is quite evident that if federal power be not altogether irresponsible, it is the federal judiciary which is the only effectual balance-wheel of the whole system. The federal judges hold in their hands the fate of state powers, and theirs is the only authority that can draw effective rein on the career of Congress. If their power, then, be not efficient, the time must seem sadly out of joint to those who hold to the "literary theory" of our Constitution. By the word of the Supreme Court must all legislation stand or fall, so long as law is respected. But, as I have already pointed out, there is at least one large province of jurisdiction upon which, though invited, and possibly privileged to appropriate it, the Supreme Court has, nevertheless, refused to enter, and by refusing to enter which it has given over all attempt to guard one of the principal, easiest, and most obvious roads to federal supremacy. It has declared itself without authority to interfere with the political discretion of either Congress or the President, and has declined all effort to constrain these its coördinate departments to the performance of any, even the most constitutionally imperative act.14 "When, indeed, the President exceeds his authority, or usurps that which belongs to one of the other departments, his orders, commands, or warrants protect no one, and his agents become personally responsible for their acts. The check of the courts, therefore, consists in their ability to keep the executive within the sphere of his authority by refusing to give the sanction of law to whatever he may do beyond it, and by holding the agents or instruments of his unlawful action to strict accountability."15 But such punishment, inflicted not directly upon the chief offender but vicariously upon his agents, can come only after all the harm has been done. The courts cannot forestall the President and prevent the doing of mischief. They have no power of initiative; they must wait until the law has been broken and voluntary litigants have made up their pleadings; must wait nowadays many months, often many years, until those pleadings are reached in the regular course of clearing a crowded docket.
Besides, in ordinary times it is not from the executive that the most dangerous encroachments are to be apprehended. The legislature is the aggressive spirit. It is the motive power of the government, and unless the judiciary can check it, the courts are of comparatively little worth as balance-wheels in the system. It is the subtile, stealthy, almost imperceptible encroachments of policy, of political action, which constitute the precedents upon which additional prerogatives are generally reared; and yet these are the very encroachments with which it is hardest for the courts to deal, and concerning which, accordingly, the federal courts have declared themselves unauthorized to hold any opinions. They have naught to say upon questions of policy. Congress must itself judge what measures may legitimately be used to supplement or make effectual its acknowledged jurisdiction, what are the laws "necessary and proper for carrying into execution" its own peculiar powers, "and all other powers vested by" the "Constitution in the government of the United States, or in any department or officer thereof." The courts are very quick and keen-eyed, too, to discern prerogatives of political discretion in legislative acts, and exceedingly slow to undertake to discriminate between what is and what is not a violation of the spirit of the Constitution. Congress must wantonly go very far outside of the plain and unquestionable meaning of the Constitution, must bump its head directly against all right and precedent, must kick against the very pricks of all well-established rulings and interpretations, before the Supreme Court will offer it any distinct rebuke.
Then, too, the Supreme Court itself, however upright and irreproachable its members, has generally had and will undoubtedly continue to have a distinct political complexion, taken from the color of the times during which its majority was chosen. The bench over which John Marshall presided was, as everybody knows, staunchly and avowedly federalist in its views; but during the ten years which followed 1835 federalist justices were rapidly displaced by Democrats, and the views of the Court changed accordingly. Indeed it may truthfully be said that, taking our political history "by and large," the constitutional interpretations of the Supreme Court have changed, slowly but none the less surely, with the altered relations of power between the national parties. The Federalists were backed by a federalist judiciary; the period of democratic supremacy witnessed the triumph of democratic principles in the courts; and republican predominance has driven from the highest tribunal of the land all but one representative of democratic doctrines. It has been only during comparatively short periods of transition, when public opinion was passing over from one political creed to another, that the decisions of the federal judiciary have been distinctly opposed to the principles of the ruling political party.
But, besides and above all this, the national courts are for the most part in the power of Congress. Even the Supreme Court is not beyond its control; for it is the legislative privilege to increase, whenever the legislative will so pleases, the number of the judges upon the supreme bench,—to "dilute the Constitution," as Webster once put it, "by creating a court which shall construe away its provisions;" and this on one memorable occasion it did choose to do. In December, 1869, the Supreme Court decided against the constitutionality of Congress's pet Legal Tender Acts; and in the following March a vacancy on the bench opportunely occurring, and a new justiceship having been created to meet the emergency, the Senate gave the President to understand that no nominee unfavorable to the debated acts would be confirmed, two justices of the predominant party's way of thinking were appointed, the hostile majority of the court was outvoted, and the obnoxious decision reversed.16
The creation of additional justiceships is not, however, the only means by which Congress can coerce and control the Supreme Court. It may forestall an adverse decision by summarily depriving the court of jurisdiction over the case in which such a decision was threatened,17 and that even while the case is pending; for only a very small part of the jurisdiction of even the Supreme Court is derived directly from the Constitution. Most of it is founded upon the Judiciary Act of 1789, which, being a mere act of Congress, may be repealed at any time that Congress chooses to repeal it. Upon this Judiciary Act, too, depend not only the powers but also the very existence of the inferior courts of the United States, the Circuit and District Courts; and their possible fate, in case of a conflict with Congress, is significantly foreshadowed in that Act of 1802 by which a democratic