The contrary, indeed, I take to be
the truth, and I think one chief cause of this imperfection in the
administration of justice will be found to have been the operation of
the written Constitution. For, under the American system, the
Constitution, or fundamental law, is expounded by judges, and this
function, which, in essence, is political, has brought precisely that
quality of pressure on the bench which it has been the labor of a
hundred generations of our ancestors to remove. On the whole the result
has been not to elevate politics, but to lower the courts toward the
political level, a result which conforms to the _a priori_ theory.
The abstract virtue of the written Constitution was not, however, a
question in issue when Washington and his contemporaries set themselves
to reorganize the Confederation. Those men had no choice but to draft
some kind of a platform on which the states could agree to unite, if
they were to unite peacefully at all, and accordingly they met in
convention and drew the best form of agreement they could; but I more
than suspect that a good many very able Federalists were quite alive to
the defects in the plan which they adopted.
Pages:
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57