declaring a
legislative act null and void it is exercising a power which every
sovereign law-making body possesses, the power to defeat any proposed
legislation by withholding its assent. The mere fact that our Supreme
Judges and our legal writers generally have with practical unanimity
called it a judicial power does not make it such. That it is in reality
a legislative and not a judicial power is amply confirmed by the uniform
and time-honored practice of all other nations, even including England,
whose institutions until a century and a quarter ago were our own.

There is, however, no difficulty in understanding why those who framed
the Constitution and controlled its interpretation exhausted the arsenal
of logic in trying to prove that it was a judicial power. This was
merely a part of their plan to make the Supreme Court practically a
branch of the Federal legislature and thereby secure an effective check
on public opinion. As the power could not be expressly given without
disclosing too clearly the purpose of the Convention, it was necessary
that it should be implied. And it could be held to be implied only by
showing that it was a natural, usual and, under the circumstances,
proper power for the judiciary to exercise. Unless it could be
established, then, that it was essentially a judicial function and not a
political or legislative power, its assumption by the Supreme Court
could not be defended on any constitutional grounds. This explains the
persistent and untiring efforts to convince the American people that the
power to set aside an act of Congress is purely judicial--efforts which,
though supported by the weight of American authority, are far from
convincing.

The Supreme Court has, it is true, time and again expressly disclaimed
all right to exercise legislative or political power; yet under the
pretext that the authority to annul legislation is purely judicial, it
has made use of a power that necessarily involves the exercise of
political discretion. The statement, then, that it is the settled policy
of this body not to interfere with the political powers of the other
departments can not be taken literally, since under the accepted
interpretation of the Constitution it has the power to, and as a matter
of fact does interfere, whenever it declares an act of Congress null and
void.

It would be a mistake, then, to suppose that the Federal judiciary has
suffered any loss of influence through its voluntary