been enabled to open an attack or to pass a censure on the
legislator, he would have played a prominent part in the political
sphere; and as the champion or the antagonist of a party, he would have
arrayed the hostile passions of the nation in the conflict. But when
a judge contests a law applied to some particular case in an obscure
proceeding, the importance of his attack is concealed from the public
gaze, his decision bears upon the interest of an individual, and if
the law is slighted it is only collaterally. Moreover, although it is
censured, it is not abolished; its moral force may be diminished, but
its cogency is by no means suspended, and its final destruction can only
be accomplished by the reiterated attacks of judicial functionaries. It
will readily be understood that by connecting the censorship of the
laws with the private interests of members of the community, and by
intimately uniting the prosecution of the law with the prosecution of
an individual, legislation is protected from wanton assailants, and from
the daily aggressions of party spirit. The errors of the legislator are
exposed whenever their evil consequences are most felt, and it is
always a positive and appreciable fact which serves as the basis of a
prosecution.

I am inclined to believe this practice of the American courts to be at
once the most favorable to liberty as well as to public order. If the
judge could only attack the legislator openly and directly, he would
sometimes be afraid to oppose any resistance to his will; and at other
moments party spirit might encourage him to brave it at every turn.
The laws would consequently be attacked when the power from which they
emanate is weak, and obeyed when it is strong. That is to say, when it
would be useful to respect them they would be contested, and when it
would be easy to convert them into an instrument of oppression they
would be respected. But the American judge is brought into the political
arena independently of his own will. He only judges the law because he
is obliged to judge a case. The political question which he is called
upon to resolve is connected with the interest of the suitors, and he
cannot refuse to decide it without abdicating the duties of his post.
He performs his functions as a citizen by fulfilling the precise duties
which belong to his profession as a magistrate. It is true that upon
this system the judicial censorship which is exercised by the courts of
justice