the intermediate points in the scale; the effect of the gradation being that whenever the superior and inferior laws apply equally well to a particular case the adjudication must be determined by the superior law in entire disregard of the inferior law. Thus if the Constitution and a statute apply equally well to a particular case the adjudication must be determined by the Constitution and the statute disregarded. So if a constitutional statute and the unwritten customary law apply to a particular case the adjudication must be determined by the statute and the customary law disregarded. What is the true place of judicial precedents in American constitutional theory? At the top of the scale of laws or at the bottom? Put them at the bottom and you do nothing inconsistent with American constitutional theory as it has always heretofore been understood. Put them at the top and, necessarily, you dethrone the Constitution and constitutional statutes and in their place make the opinions of judges the supreme law of the land.

In Marbury v. Madison, Marshall's assertion of the power of the courts to decide the constitutionality of statutes and to declare what the law is, was scrupulously and carefully guarded so as to limit the power to the single purpose of adjudicating the particular lawsuit presently before the court. Recall exactly what he said:

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply."

The constitutional amendment principle also prevents precedents from having the binding legal effect imputed to

them by the opinions quoted in § 3 ante. Consistently with that principle, no erroneous interpretation of the Constitution, and no erroneous decision of the court of last resort, and no number of erroneous decisions by all the courts, and no legislative or executive practice however inveterate, and no lapse or acquiescence or laches of the people themselves however long continued, can have the effect of amending the Constitution. The Constitution as written, according to its true meaning, stands unchanged until amended by the people themselves in the prescribed mode and must be obeyed as supreme law by the courts and all other governmental agents, regardless of past errors, so soon as its true meaning in any way comes to their knowledge. The Constitution cannot be changed in any other than the prescribed way; but the understanding of its meaning by judges, lawyers and laymen may change and, with advancing knowledge, is likely to change from one generation to another and even from one case to the next succeeding case. This is manifestly true also of constitutional treaties and statutes.

The principle that every State within this Union ought to have a republican form of government and that it is the duty of Congress to guaranty to each State that form of government also stands in the way of giving to judicial precedents the legal effect imputed to them by the opinions quoted in § 3 ante. What is the republican form of government? The first constitutions adopted in this country by the several States when they declared their independence. and the Constitution of the United States leave no doubt as to the true answer to this question. The constitutional principles which have been enumerated here are essential elements of that form of government; so that, to preserve the substance of a republic within the form, it is necessary that they should not be capable of being undermined constitutionally in the way indicated by the opinions quoted in § 3 ante. Those opinions point straight to the ultimate but stealthy conversion of our republics into oligarchies not al

together unlike the one which once ruled Venice, but probably more like the one which for centuries has ridden on the necks of the people of Great Britain and Ireland and which once oppressed the American colonists.

We sometimes see a cheese which on the outside looks good but within is perforated by maggots. Shall such be the fate of our fair-seeming constitutions?

§ 5. The principles on which the proposal rests are not merely the very bones of all our constitutions but they are accepted and admitted by everybody in this country, or nearly everybody, as the standards to which all plans for the legal, economic and social betterment of the people must be made to conform and as the common ground for the discussion of such plans. Their meaning in application to particular states of fact has been finely elucidated and clearly developed by many opinions of our highest courts. They will bear repetition. Here they are again:

First-The principle of a republican form of government having the following characteristics:

Second-The principle of a gradation of laws, which furnishes to legislators, judges, executives, economists and sociologists a brief general statement in writing of essential principles for the guidance of the ship of state, even as sea-going vessels are steered safely to their ports by observations of the sun and stars and magnetic pole:

Third-The principle of a distribution of governmental powers, preventing courts and every other agency of government from lawfully adopting and acting upon the maxim of tyrants, quod placet principi lex est, and making all legislators and executives responsible directly to the people at frequent intervals:

Fourth-The principle of due process of law, which prevents all courts from the lowest to the highest, in all matters and at all times, from depriving any person of life,

liberty or property without first giving him an opportunity to be heard on all questions of law, as well as of fact, involved in the deprivation; see letter to Mr. Rodenbeck; §1 ante;

Fifth-The constitutional amendment principle, by which the power to change the supreme law is reserved to the people themselves acting according to a prescribed mode of procedure and is denied to the courts and every other governmental agency.

§ 6. These principles, by necessary implication, carry with them the idea that the meaning and scope of constitutional and statutory provisions can never be settled by judicial decisions in lawsuits till they are settled right—that is, right according to the true intent and meaning of the Constitution and statutes. Judges cannot make law in this country; they are excluded from that function by the Constitution. In this nation it is illegal as well as highly immoral doctrine which says to the judges of our courts: "Stick to your decisions whether right or wrong. Be blind to your errors. If the people do not like your decisions let them amend their constitutions and statutes."

This false doctrine has considerable credence among lawyers, and in non-litigated matters influences the advice which they give to clients, and in litigation influences the selection and statement of issues to be presented to the courts for decision and the arguments by which those issues are supported.

"Ought I not," some judge may ask, "to try to mold my opinion of what the law is, as I see it in the present case, into conformity with the opinion which I expressed in a prior case or with the opinions of other courts in prior cases or with the opinions of the courts of last resort in prior cases?" No; you ought not to make any such attempt. Your oath does not permit you to do it. You are not commanded to be consistent with your prior opinions or with the prior opinions of any other judge or court; but

you are commanded to be consistent with the Constitution and with statutes made in pursuance thereof according to their true intent and meaning, as you understand that intent and meaning at each time you are called on to act officially. Any attempt which you may make at consistency with prior judicial decisions will surely absorb your attention and blind you to your duty. Confession of error to prevent dogged persistence in error and to prevent the propagation of error and to unfetter the mind is a necessary element of true scientific method. For all human relations is it not dictated by the ethics of Christ? For proceedings in courts is it not enjoined upon all judges by the State's Constitution and the Nation's Constitution?

Is not the basis now proposed for the administration of justice in courts a solid ground for belief in progress toward perfection of the law and in the gradual development of a higher and more lasting civilization in the United States of America than has yet been attained by any nation in the life of the world? Prior to the nineteenth century the stare decisis habit of thought in the mental processes of theologians, jurists, legislators and physicists made all real advances in knowledge very difficult and well-nigh impossible. During the nineteenth century physicists shook off the stare decisis habit and approached the problems of medicine and surgery and mechanics and other physical sciences with unfettered minds; with what result of good for mankind everybody knows. Is it not time for lawyers and judges to take thought and exert their wills in order to rid themselves of the same bad habit? Are they not commanded to do this by the supreme law, whose supremacy they are sworn to uphold?

Ought not every judge and every lawyer to be made to see that he may never deny or doubt that in this land every possible or conceivable governmental act, including all judicial decisions, as well as legislative fiats and executive orders, may be challenged as unconstitutional by anybody aggrieved (excepting only those whose rights inter sese have