Page:Harvard Law Review Volume 8.djvu/363

347 SUPREME COURT ON JUDICIAL LEGISLATION. 347 court. Furthermore, if we examine the Constitution from the point of view of those who framed it, it is plain that in declaring " no State shall pass a law impairing the obligation of contracts," it could not have been intended to include the decision of a court under the term " law." The mischief at which the prohibition was aimed had not been felt in the courts, but in the legislatures.^ The language of the clause, too, forbids such an interpretation. Even the most thorough-going disciple of Austin would hesi- tate to speak of a court's " passing " a law, and the statesmen and lawyers of a century ago were still under the spell of the fiction that all decisions are merely declaratory. A decisive test of this view is a writ of error directed to the Supreme Court of a State on the ground that its decision has impaired the obli- gation of a contract. According to Mr. Justice Swayne and the writers mentioned, such a writ should be supported, there being no distinction in the prohibition between legislative and judicial acts. Mr. Reno, indeed, cites cases ^ to show that such a writ has been sustained ; but they will not bear investigation. In each of them it was a statute, as construed by the court, which was averred to violate the Constitution. The question of construction was not open to review, and the only question raised was whether the statute, bearing the meaning fixed b}'' the Supreme Court of the State, was forbidden by the Constitution. The position of the Supreme Court with respect to the State decisions was this : — We must take your law to be correctly interpreted by your own courts, and if, so interpreted, it impairs the obligation of a contract, it is our duty to set it aside. This is a very different thing from re- versing a decision of the Supreme Court of a State, because it impairs the obligation of a contract. If in Gelpcke v. Dubuque the statute had threatened innocently acquired contract rights, the case would be analogous to those cited by Mr. Reno. Instead of this, the contract sued upon in that case had no other foundation but the statute. At the present time this question is no longer open, for in New Orleans Waterworks Co. v. Louisiana Sugar Co.,^ the court has decided that such a writ of error will not lie. It is the unanimous opinion of the court, as delivered by Mr. Justice Gray, that : — 1 The Federalist, No. XLIV. 2 Life Ins. Co. v. Debolt, 16 How. 416; Boyd v. Alabama, 94 U. S. 645; Wright v. Nagle, loi U. S. 794; Louisiana z'. Pillsbury, 105 U. S. 278, 294-295. « 125 U. S. 18, 30.