EQUALITY IN THE UNITED STATES 545 



tions of the legislative and judicial departments as is sometimes sup- 

 posed, and in rendering decisions the courts on occasion make the law as 

 well as declare what the law is. For the courts in their rulings 

 to avoid any recognition of a higher sense of justice in the community 

 until it has found expression in a legislative enactment seems a travesty 

 upon justice to those who hold this position. There is little doubt that 

 the unpopular reception accorded the Dred Scott decision was based upon 

 some such view as this. In point of fact, there is a large body of judge- 

 made law. Some decisions have even gone further and have amended 

 the constitution by interpretation, a procedure which the difficulty of 

 formally amending our organic law invites. In the opinion of many 

 legal lights, Justice Harlan had good ground for accusing the majority 

 of reading the word " reasonable " into the anti-trust act in the Stand- 

 ard Oil and American Tobacco Company cases. 



The second feature of the Dred Scott decision to which it is desired 

 to allude here is the storm of popular disapproval which greeted its an- 

 nouncement. The present age is familiar with the heated discussions 

 to which the judicial determination of cases involving the ideals of 

 democracy and the rights of property frequently give rise. Both parties 

 to such controversies have so much at stake that it is hard for either to 

 be a good loser. When anything that a man has once possessed himself 

 of is placed in jeopardy, or when any ideal upon which the fortunes of 

 humanity are supposed to rest is called in question, a complacent mood 

 is too much to expect. Nor is this peculiar to this age. Those who as- 

 sume that failure to acquiesce cheerfully in the rulings of the courts is 

 without precedent in the past will do well to recall the attitude of Jeffer- 

 son and Jackson, and especially the outburst of indignation which the 

 Dred Scott decision called forth. As an example of what some look 

 upon as treason to the courts, the contempt with which this decision was 

 regarded has not been duplicated before or since. 



The way in which Mr. Lincoln took the Supreme Court to task de- 

 serves a passing notice. He did not content himself with maintaining 

 that the decision was bad law. In a speech at Springfield, Illinois, June 

 17, 1858, he boldly insinuated that Chief Justice Taney, Stephen A. 

 Douglas, James Buchanan and Franklin Pierce conspired together in 

 handing down the Dred Scott decision. After citing the successive 

 points in the alleged conspiracy, he threw his indictment into the fol- 

 lowing classic: 



We can not absolutely know that all these exact adaptations are the result of 

 preconcert. But when we see a lot of framed timbers, different portions of which 

 we know have been gotten out at different times and places and by different 

 workmen — Stephen, Franklin, Koger and James, for instance — and when we see 

 these timbers joined together, and see they exactly make the frame of a house or 

 a mill, all the tenons and mortices exactly fitting, and all the lengths and propor- 



