We have nothing to correspond to the
praetor.
Thus the English system of binding precedents is troublesome enough in a
civilization in chronic and violent flux like modern civilization, even
when applied to ordinary municipal law which may be changed at will by
legislation, but it brings society almost to a stand when applied to the
most vital functions of government, with no means at hand to obtain a
corrective. For the court of last resort having once declared the
meaning of a clause of the Constitution, that meaning remains fixed
forever, unless the court either reverses itself, which is a disaster,
or the Constitution can be amended by the states, which is not only
difficult, but which, even if it be possible, entails years of delay.
Yet pressing emergencies arise, emergencies in which a settlement of
some kind must almost necessarily be reached somewhat rapidly to avert
very serious disorders, and it has been under this tension, as I
understand American constitutional development, that our courts have
resorted to legislation. Nor is it fair for us to measure the sagacity
of our great jurists by the standard of modern experience.
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