1870, when the Kentucky Courts had held the Legal Tender Act invalid, while the Courts of other States held the contrary.^ Nevertheless, on the whole, it is probably true that, as Judge Holmes recently said, "The United States would not come to an end if we lost our power to declare an Act of Congress void." ^
K, on the contrary, the Court should be deprived of its other power — that of determining the unconstitutionality of State laws, it is unquestionably true that the successful operation of the Federal system of government would be endangered. "I do think the Union would be imperilled,'" said Judge Holmes, "if we could not make that declaration as to the laws of the several States. For one in my place sees how often a local policy prevails with those who are not trained to National views, and how often action is taken that em- bodies what the Commerce Clause was meant to end.** " The power given to the Supreme Court by this (Judi- ciary) Act,** said Chief Justice Taney, "was intended to protect the General Government in the free and un- interrupted exercise of the powers conferred on it by the Constitution, and to prevent any serious impediment from being thrown in its way while acting within
^ See The Fundamental Law and the Power of the Courts, by Herbert Pope, Harv, Law Rev. (1913), XXVII.
' Address of Judge Oliver Wendell Holmes before the Harvard Law School Asso- datkm cm Law and the Court* Feb. 15, 1918. Speeches of Oliver Wendell Holmes (1918). It has been sometimes remarked that the existence of the judicial power has unquestionably tended to cause Congress to evade its own responsibility, and to enact statutes the constitutional validity of which it doubted, relying on the Court to hold them invalid. " There is every reason to think that Legislatures have passed bills, knowing them to be unconstitutional, in order to place the onus of declaring them so on the Courts." Property and Contract in Their Relations to Dietribution of WeaUh (1918), by Richard T. Ely; The New York Employers Liaffiiity Act, by Judge A. A. Bruce, Michigan Law Rev, (1911), TK. In Evans v. Oore (1980), 258 U. S. 245, 248, the Court said : "Moreover, it appears that, when this taxing provision was adopted. Congress regarded it as of uncertain constitutionality and both contemplated and intended that Uie question should be settled by us in a ease like this."
