Page:The Wisconsin idea (IA cu31924032449252).pdf/292

 content with the courts? When this is true, is there not another legislative body above and beyond that elected by the people? The chief legislative problem before us in many states—the problem which has required all our best energy in the past—is the creation of fictions which will in some way allow the acts demanded by the people and acknowledged to be necessary, to exist on our statute books, in spite of the limits of the federal and state constitutions as interpreted by thousands of decisions. It is not my purpose to go into history. It is generally understood that the United States constitution never gave the right to the courts to declare laws unconstitutional, but that the right has come mainly from the case of Marbury vs. Madison, 1803. However wise that decision may have been at the time, the assumption of control over legislation and consequently the assumption of legislative power by our courts, must now be regarded as the most unfortunate expansion of our unwritten constitution which has ever taken place in this country. The field of the legislature has been gradually narrowed and more and more responsibility taken from it. How often we have seen just and right legislation checked or choked by an array of decisions which seem to block the way at every step! How often the powers opposed to all progress have cited these with mighty dignity until the legislature, benumbed and confused, has yielded to what seemed to be an insurmountable mass of judge-made