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.
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