PROBLEMS OF CONSTITUTIONAL LAW 595 



this sphere against encroachment from any and every source, and 

 to summon the whole power of the nation to its aid, if necessary. 

 And it w r ould be the constitutional duty of those summoned to obey 

 the call and render the aid required, although it might be directed 

 against their o\vn conceived views and interests. The doctrine 

 of the greatest good to the greatest number and the principle of 

 majority rule have no application whatsoever wdthin this domain. 

 When a constitution is being framed or amended, then the question 

 of the nature and extent of civil liberty or individual immunity is, 

 indeed, a matter of highest policy for the sovereign to determine in 

 accordance with its own forms of procedure, but once established, 

 it becomes subject only to the provisions and principles of the con- 

 stitution, interpreted by the organs of justice, and is removed 

 entirely from the realm of legislative or executive policy and major- 

 ity control. Now the only way to maintain this true idea and prin- 

 ciple in regard to civil liberty is to put its protection under a non- 

 political body, the organs of justice, not the organs for the fixing 

 of policies, and to vest the organs of justice with the constitutional 

 power to nullify any acts of the political branches of the government 

 which may, in their judgment, undertake to encroach thereon. 

 The legislature, in these modern times, is the branch of the govern- 

 ment which is most prone to undertake these encroachments. The 

 legislature is the branch which, by its very nature, regards everything 

 as a matter of policy to be determined, at each moment, by majority 

 action, and that action based upon majority will, not upon majority 

 interpretation of higher law. It is the branch of the government 

 which is almost sure to lose sight of the distinction between civil 

 liberty, individual immunity, and what it conceives to be general 

 welfare between justice and policy. It is absolutely certain to do 

 so when a socialistic majority holds sway in the legislature. It was 

 natural that the European peoples, accustomed tq the despotism 

 of the executive, with the courts as a branch of the royal power, 

 should have come upon the idea, in the period of the revolutions, 

 that is, in the period of their transitions from absolute to constitu- 

 tional government, that the representatives of the people in the 

 legislature would be the only reliable support for civil liberty. 

 Perhaps this was correct for that period and for those conditions. 

 But I am sure that that period and those conditions have now passed, 

 and that the realm of individual immunity is now in more danger 

 from legislative, than from executive, encroachment. It is under 

 the force of this conviction that I contend that the problem of creat- 

 ing an independent judiciary by constitutional amendment and vest- 

 ing it with the protection of individual immunity against govern- 

 mental encroachment, w r hether executive or legislative, or proceeding 

 from any other source whatever, is one of the chief constitutional 



