Either the judges would seek to give expression to
"preponderant" popular opinion, or they would legislate. In the one
event they would be worthless as a restraining influence. In the other,
I apprehend, a blow would fall similar to the blow which fell upon the
House of Lords, only it would cut deeper. Shearing the House of Lords of
political power did not dislocate the administration of English justice,
because the law lords are exclusively judges. They never legislate.
Therefore no one denounced them. Not even the wildest radical demanded
that their tenure should be made elective, much less that they should be
subjected to the recall. With us an entirely different problem would be
presented for solution. A tribunal, nominally judicial, would throw
itself across the path of the national movement. It would undertake to
correct a disturbance of the social equilibrium. But what a shifting of
the social equilibrium means, and what follows upon tampering with it,
is a subject which demands a chapter by itself.
FOOTNOTES:
[18] 6 Cranch 135.
[19] New Jersey _v_. Wilson, 7 Cranch 164; decided in 1812.
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