Page:Harvard Law Review Volume 1.djvu/97

. . . and the case presented the curious spectacle of the Supreme Court reversing the determination of Congress on a point of political economy.” And, after referring to the later decision, in 12 Wall., 457, and expressing the opinion already referred to, that the argument drawn from the coinage clause is unanswerable to show that there is no power to make paper a legal tender, it is added: “Judges Strong and Bradley are more successful, to our mind, in meeting the shadowy argument drawn from the spirit of the Constitution as to impairing the obligations of contract, etc., than in overthrowing this. Less attention is given than in Hepburn v. Griswold to the fitness of the legal tender acts to accomplish their ends, which we must think a purely legislative question, in the absence of an obvious fraud on the Constitution.”

This view of the arguments alluded to appears to be a sound one. It is said to be inconsistent with the spirit of the Constitution to make paper a legal tender because it is unjust; and it is pointed out that a great and avowed purpose of the Constitution was the establishment of justice. That is an argument which has often been repeated, but it is of very slight importance. I do not mean that it is of slight importance to do an unjust thing; that is never a matter of small importance. But we are considering the value of arguments, and of arguments for the judicial setting aside of legislation; and I mean that this argument, as one justifying the declaration that a legislative act is void, is a slight one. The preamble of the Constitution in saying that its purpose is “to establish justice,” etc., is making a large preliminary declaration relating to the total aim of the instrument as a whole. If the question were about legislation reducing the duty on wool, and it should be argued in a judicial opinion that the law is contrary to the spirit of the Constitution, because it is the aim of that instrument “to form a more perfect union,” while this law is necessarily unsatisfactory to the people of a certain section of the Union, and tends to alienate them from it,— that kind of reasoning would be instantly felt to be out of place. It seems, at best, to belong to legislative, rather than judicial discussion. An answer to this sort of argument may be collected from an important early case, which held that Congress might constitutionally give the