It would be a rash person who would deny that Douglas’s doctrine is not substantially that with which defenders of the courts meet their critics to-day. Lincoln asserted the right of the people to criticize particular decisions as embodying dangerous doctrines, and, more especially, when such particular decisions, as in the Dred Scott case, clog the whole machinery of government and leave it powerless to act where action is essential.
‘We believe,’ he declared, ‘as much as Judge Douglas, perhaps more, in obedience to and respect for the judicial department of government. We think its decisions on constitutional questions when fully settled should control not only the particular case decided, but the general policy of the country, subject to be disturbed only by amendments to the Constitution, as provided in that instrument itself. More than that would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it has often overruled its own decisions, and we shall do what we can to have it overrule this.’
Judge Douglas asserted that a political issue based upon the criticism of this single decision involved or implied an attack upon the whole judicial system and created, he declared, ‘a distinct and naked issue between the friends and enemies of the Constitution, the friends and enemies of the supremacy of the laws.’
If Douglas was wrong and his doctrine was unsound at the time when it was enunciated, the political tendencies of our own day afford still less excuse for its reaffirmation. The problems of our day are essentially different from those which formed the subject of the great debates prior to the Civil War. The political relation of the states to the nation is settled. Our questions are not political in the old sense of the word, but primarily economic, social, and industrial. They are problems of corporations and labor-unions, of the regulation of railroads and industrial trusts, of taxation, of conservation of natural resources, of congestion and concentration, of natural and artificial industrial inequality. Back of all these problems is the fundamental one of the extent to which, under our constitutional system, they may be dealt with by law—and law of a new type.
As society becomes more complex, the whole tendency of legislation is to attempt to deal with the individual as a member of the state, instead of dealing, as formerly, with the state as a mere mathematical sum total of individuals, whose individual rights as such must be preserved, at least in theory, at the cost of society as a whole, and, far too often, at the cost of the individual himself.
This principle is old and well-established in Europe, and consistent with the necessities of continental government. It is new with us. It is a decided variation from American traditions. It is at variance in particular with the economic theory current when we adopted our Constitution, an economic theory which, having been unconsciously adopted, has tinged the interpretation by our courts of the broad generalities of our Constitution.