Page:Harvard Law Review Volume 1.djvu/246

 that a theory may be correct although inconsistent with the facts or practice which it attempts to explain; whereas in reality a theory which does not agree with the facts, or will not work in practice, is simply wrong. A practice, on the other hand, which is not guided and enlightened by abstract or theoretical study is short-sighted, unprogressive, and extremely likely to be based upon a blunder.

It may seem to the reader that there is no danger of falling into either of these errors in the study of constitutional law, but a careful review of the decisions on the subject, especially those to be found in some of the State reports, will convince him that the judges have been constantly falling into one or the other of these pitfalls, and sometimes, strange as the feat may appear, into both of them at the same time. There are many decisions in which the court evidently had no principle of general application in mind at all; others where the opinion is based upon some high-sounding but entirely inaccurate generality, which, if literally applied, would overrule half the cases and upset the whole fabric of constitutional law; and there are not a few cases in which the generality is enunciated with solemn gravity, while it is perfectly clear that it had nothing to do with the decision, which was determined by the judge’s general impression of the case. Let me not be supposed to apply any of this language to the decisions of our great constitutional lawyers. On the contrary, I have the highest appreciation of the labors of these men, and I feel that their country owes them an eternal debt of gratitude. Marshall, indeed, who set the tone for his successors, combined the wisdom of the philosopher with the good sense of the magistrate, and it is precisely because these qualities are so rarely united that I wish to insist on the importance of both of them, and to signalize the evils which may flow from the absence of either.

Those persons who regard the provisions of the Constitution, and particularly the ones designed to protect the rights of the individual, not as a mere collection of arbitrary rules, but as a set of principles adapted to promote the happiness and prosperity of the people, will find it easy to believe that these principles, clearly expounded and wisely applied, cannot fail to retain their hold upon the respect of the citizen.

A careful study of constitutional law is especially important at this time, because the fourteenth amendment to the Constitution of