On the other hand, the Employers’ Liability Act of 1906 was held bad because Congress undertook to deal with commerce conducted wholly within the states, and therefore beyond the national jurisdiction.  The Court, consequently, in the Employers’ Liability Cases, simply defined the limits of sovereignty, as a Canadian Court might do; it did not question the existence of sovereignty itself.  In 1908 Congress passed a statute free from this objection, and the Court, in the Second Employers’ Liability Cases, 223 U.S. 1, sustained the legislation in the most thoroughgoing manner.  I know not where to look for two better illustrations of my theory.

CHAPTER III

AMERICAN COURTS AS LEGISLATIVE CHAMBERS

In one point of view many of the greatest of the Federalists were idealists.  They seem sincerely to have believed that they could, by some form of written words, constrain a people to be honest against their will, and almost as soon as the new government went into operation they tested these beliefs by experiment, with very indifferent success.  I take it that jurists like Jay and Marshall held it to be axiomatic that rules of conduct should be laid down by them which would be applicable to rich and poor, great and small, alike, and that courts could maintain such rules against all pressure.  Possibly such principles may be enforced against individuals, but they cannot be enforced against communities, and it was here that the Federalist philosophy collapsed, as Hamilton, at least partly, foresaw that it must.

Sovereigns have always enjoyed immunity from suit by private persons, unless they have been pleased to assent thereto, not because it is less wrongful for a sovereign than for an individual to cheat, but because the sovereign cannot be arrested and the individual can.  With the Declaration of Independence the thirteen colonies became sovereigns.  Petty sovereigns it is true, and singly contemptible in physical force as against most foreign nations, but none the less tenacious of the attributes of sovereignty, and especially of the attribute which enabled them to repudiate their debts.  Jay, Marshall, and their like, thought that they could impose the same moral standard upon the states as upon private persons; they were unable to do so, but in making the attempt they involved the American judicial system in a maze of difficulties whose gravity, I fear, can hardly be exaggerated.  Before entering upon this history, however, I must say a word touching the nature of our law.