power of the judiciary will inevitably vanish, and a great part of the Constitution will be irretrievably swept away. Our constitutional law depends for its force, therefore, upon the fact that it approves itself to the good sense of the people; and the power of the courts is held upon condition that the precedents established by them are wise, statesmanlike, and founded upon enduring principles of justice which are worthy of the respect of the community.
How, then, it may be asked, are the courts to make their decisions respected and approved by the people? By catching the current of popular opinion and leaning towards that interpretation of constitutional questions which the wants of the day appear to demand? By no means. Such a course is of all the best calculated in the long run to bring the judiciary into disrepute, for it makes of them a political instead of a legal body. To suggest it shows an entire want of appreciation of the genius of our people; and, in fact, the cases in which the bench has suffered the greatest loss of influence have been those in which it has allowed popular excitement, or party prejudice, which is really the same thing, to affect its opinions. What is needed to maintain the esteem in which the courts are now held is a careful study of the principles established by the Constitution, and a clear development of the theories of constitutional law; not theory in the narrow sense of something contrasted and often irreconcilable with practice. Theory in this sense is nothing more than a set of doctrines, at best the logical result of premises more or less inaccurate. It is extremely easy to manufacture, and is justly an object of suspicion to the community. But what we need in the study of constitutional law is theory in a higher sense. We need that ripe scholarship which regards theory as truth stated in an abstract form, to be constantly measured by practice as a test of its correctness; for theory and practice are in reality correlatives, each of which requires the aid of the other for its own proper development. It often happens, when some zealous student propounds a striking doctrine whereby all the problems in the world are reduced to the form of a quadratic equation, that a bystander remarks: “That may be all very well in theory, but it will not work in practice.” This saying is a very common one, but it is founded on a most pernicious error, for either it uses the word “theory” in the ridiculous sense of something which ought to be true, and would be true if the world were properly constructed, or else it assumes
