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 Congress swept away, root and branch, the system of circuit courts which had been created in the previous year, but which was hateful to the newly-successful Democrats because it had been officered with Federalists in the last hours of John Adams's administration.
This balance of judiciary against legislature and executive would seem, therefore, to be another of those ideal balances which are to be found in the books rather than in the rough realities of actual practice; for manifestly the power of the courts is safe only during seasons of political peace, when parties are not aroused to passion or tempted by the command of irresistible majorities.
As for some of the other constitutional balances enumerated in that passage of the letter to John Taylor which I have taken as a text, their present inefficacy is quite too plain to need proof. The constituencies may have been balanced against their representatives in Mr. Adams's day, for that was not a day of primaries and of strict caucus discipline. The legislatures of the States, too, may have been able to exercise some appreciable influence upon the action of the Senate, if those were days when policy was the predominant consideration which determined elections to the Senate, and the legislative choice was not always a matter of astute management, of mere personal weight, or party expediency; and the presidential electors undoubtedly did have at one time some freedom of choice in naming the chief magistrate, but before the third presidential election some of them were pledged, before Adams wrote this letter the majority of them were wont to obey the dictates of a congressional caucus, and for the last fifty years they have simply registered the will of party conventions.
It is noteworthy that Mr. Adams, possibly because he had himself been President, describes the executive as constituting only "in some degree" a check upon Congress, though he puts no such limitation upon the other balances of the system. Independently of experience, however, it might reasonably have been expected that the prerogatives of the President would have been one of the most effectual restraints upon the power of Congress. He was constituted one of the three great coördinate branches of the government; his functions were made of the highest dignity; his privileges many and substantial—so great, indeed, that it has pleased the fancy of some writers to parade them as exceeding those of the British crown; and there can be little doubt that, had the presidential chair always been filled by men of commanding character, of acknowledged ability, and of thorough political training, it would have continued to be a seat of the highest authority and consideration, the true centre of the federal structure, the real throne of administration, and the frequent source of policies. Washington and his Cabinet commanded the ear of Congress, and gave shape to its deliberations; Adams, though often crossed and thwarted, gave character to the government; and Jefferson, as President no less than as Secretary of State, was the real leader of his party. But the prestige of the presidential office has declined with the character of the Presidents. And the character of the Presidents has declined as the perfection of selfish party tactics has advanced.
It was inevitable that it should be so. After independence of choice on the part