396 BURR— THE TREATY-MAKING POWER [April 20, 



to contain the materials for a final judgment. This is not the place 

 for a demonstration of the correctness of that assumption. If in the 

 judicial power of the United States the nation is not to find the final 

 arbiter of the constitutionality of State and Federal acts, then the 

 fundamental purposes of the framers of the Constitution are utterly 

 frustrated, and with the destruction of that instrument must disap- 

 pear any thought of a judicial interpretation and enforcement of 

 the treaty-making power. During many years of the nation's life, 

 the individual judgment of the States was set up by some as the 

 final arbiter of constitutional acts ; today, the tendency is rather 

 toward making of Congress that supreme tribunal, or perhaps even 

 the crowd, if the recall is to accomplish its logical end. But in this 

 essay the final authority has been recognized to be the Supreme 

 Court. Examining their decisions, we have seen in the making the 

 principles of constitutional law as they affect the treaty-making 

 power. As they have slowly formed before our eyes, these prin- 

 ciples have become a part of our thought. Not always have the re- 

 sults reached been logical from the strictly academic point of view; 

 the judges were men of political convictions and emotions, and 

 often was it necessary to pause to consider the conditions under 

 which they spoke, and the political doctrines which filled the air and 

 colored — or even animated — their words. If one would for the 

 moment forget such considerations, time and again did old-time 

 political beliefs, given voice, surprise and warn one. In a subject 

 where sanction for decisions is often to be found in political con- 

 siderations, one must ever bear in memory the opinions of the times 

 in which the judges wrote. The language of Mr. Justice Story 

 in writing to a friend in 1845, is very pertinent to the thought here 

 attempted to be expressed. He wrote: 



" Although my personal position and intercourse with my brethren on the 

 bench has always been pleasant, yet I have long been convinced that the 

 doctrines and opinions of the ' old Court ' were daily losing ground, and 

 especially those on great constitutional questions. New men and new 

 opinions have succeeded. The doctrines of the Constitution, so vital to the 

 country, which in former times received the support of the whole Court, no 

 longer maintain their ascendency. I am the last member now living of the 



