legislative virtue with
irresistible temptation. The answer to this charge is a "confession in
avoidance"; the facts alleged are true enough but hardly to the point.
Yet even if they were, what is to be said of that other not uncommon
incident of legislative history, the legislative "strike," whereby
corporations not protected by irrepealable charters are blandly
confronted with the alternative of having their franchises mutilated or
of paying handsomely for their immunity? So the issue seems to resolve
itself into a question of taste regarding two species of legislative
"honesty." Does one prefer that species which, in the words of the late
Speaker Reed, manifests itself in "staying bought," or that species
which flowers in legislative blackmail? The truth of the matter is
that Marshall's decision has been condemned by ill-informed or
ill-intentioned critics for evils which are much more simply and much
more adequately explained by general human cupidity and by the power
inherent in capital. These are evils which have been experienced quite
as fully in other countries which never heard of the "obligation of
contracts" clause.

The decisions reached in Fletcher vs. Peck and Dartmouth College vs.
Woodward are important episodes in a significant phase of American
constitutional history. Partly on account of the lack of distinction
between legislative and judicial power and partly on account of the
influence of the notion of parliamentary sovereignty, legislative
bodies at the close of the eighteenth century were the sources of much
anonymous and corporate despotism. Even in England as well as in
this country the value, and indeed the possibility, of representative
institutions had been frankly challenged in the name of liberty. For
the United States the problem of making legislative power livable
and tolerable--a problem made the more acute by the multiplicity of
legislative bodies--was partly solved by the establishment of judicial
review. But this was only the first step: legislative power had still
to be defined and confined. Marshall's audacity in invoking generally
recognized moral principles against legislative sovereignty in his
interpretation of the "obligation of contracts" clause pointed the way
to the American judiciaries for the discharge of their task of defining
legislative power. The final result is to be seen today in the Supreme
Court's concept of the police power of a State as a power not of
arbitrary b