The power of courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books, appeal lies not to the courts but to the ballot and to the processes of democratic government.
Did the Supreme Court, in the _School Segregation Cases_, have the power to abolish segregation by placing its own contemporary construction on the Fourteenth Amendment? By casting aside Stone’s “sense of self-restraint,” and by substituting their own notions of what was right for the plain history of what was constitutional, the judges could assume that naked power. In the end, that was what they did--in violation of precepts they themselves had pronounced eloquently in other cases.
Mr. Justice Black, for example, was solidly on the side of judicial tradition in 1946, in _Morgan_ v. _Virginia_ (328 U. S. 373). The question was whether a Virginia law, requiring separate seats for white and colored passengers on buses, placed an unconstitutional burden on interstate commerce. A majority of the court thought it did, but Black, though he agreed entirely with the result of the majority’s ruling, protested strongly that the power to regulate commerce was a power vested in the Congress and not in the courts. Yet in a series of cases, the court had nullified State laws just as it was nullifying Virginia’s enactment in the _Morgan_ case. “I thought then, and still believe,” said Black, “that in these cases the court was assuming the role of a ‘super-legislature’ in determining matters of governmental policy.” Where was Mr. Justice Black in May 1954?
Mr. Justice Frankfurter has expounded many times upon the obligation upon the court never to exceed its judicial powers. The question in _Board of Education_ v. _Barnette_ (319 U. S. 634), was whether West Virginia could compel its public school children to salute the flag. Five times, the Supreme Court had held that such a requirement was not in violation of the Constitution. Now, in 1943, with the shift of two justices, the holding was reversed. Frankfurter’s eloquent dissent provides a moving statement of the philosophy by which judges should be guided in contemplating their judicial power: