s view of the Constitution, if not actually
encouraged, was allowed to go unchallenged in order not to endanger its
adoption.

The Constitution is and was intended to be rigid only in the sense that
it effectually limits the power of the majority. The founders of our
government were not averse to such changes in the system which they
established as would promote or at least not interfere with their main
purpose--the protection of the minority against the majority. Indeed,
they intended that the Constitution as framed should be modified,
amended and gradually molded by judicial interpretation into the form
which they desired to give it, but which the necessity of minimizing
popular opposition prevented them from accomplishing at the outset.
Amendment by judicial interpretation was merely a means of conferring
indirectly on the minority a power which the Constitution expressly
denied to the majority. No hint of this method of minority amendment,
however, was contained in the Constitution itself. But, on the contrary,
any such view of the Constitution would have been negatived by the
general theory of checks and balances which, consistently applied, would
limit the power of the minority as well as that of the majority. It was
not reasonable to suppose that the Constitution contemplated placing in
the hands of the minority a power which it was so careful to withold
from the majority. In fact, the language of the Constitution warranted
the belief that it was intended as a means of checking the general
government itself by protecting the states in the exercise of all those
powers not expressly denied to them. And since the Constitution, as we
have seen, merely marked off the limits of federal and state
jurisdiction, without specifying how the general government on the one
hand, or the state government on the other, was to be kept within the
territory assigned to it, it was natural to suppose that it contemplated
giving to each the same means of protecting itself against the
encroachments of the other.

Accordingly, when Congress appeared to overstep the limits which the
Constitution set to its authority, the states naturally looked for some
means of making the checks imposed upon the general government
effective. True, the Constitution itself did not specify how this was to
be done; but neither could one find in it any provision for enforcing
the limitations on the authority of the states. The general government,
however, h