[406] Ninth Amendment.
[407] The first quotation is from Downes v. Bidwell, 182 U. S., 244 (1901); the second, from Gibbons v. Ogden, 9 Wheaton, 235 (1824), decision by Marshall. The application of the principle laid down by Chief Justice Marshall in 1824 and elaborated, at times, by the Supreme Court,—as in 1901,—was discussed by the eminent jurist, Thomas M. Cooley, in a brief address to the North Dakota Constitutional Convention, July 17, 1889. At that time he was Chairman of the Interstate Commerce Commission. “Don’t, in your constitution-making, legislate too much. In your constitution you are tying the hands of the people. Don’t do that to any such extent as to prevent the Legislature, hereafter, from meeting all evils that may be within the reach of proper legislation. Leave something for them. Take care to put proper restrictions upon them, but at the same time leave what properly belongs to the field of legislation to the Legislature of the future. You have got to trust somebody in the future and it is right and proper that each department of government should be trusted to perform its legitimate functions.” Proceedings and Debates of the First Constitutional Convention of North Dakota, Assembled in the City of Bismarck, July 4 to August 17, 1889, p. 67. (Italization in text, not in original.)
[408] Thirty-three States have an elective judiciary. In Maine, New Hampshire, Massachusetts, Connecticut, Delaware, Mississippi, and New Jersey, the Governor nominates and the Senate confirms judges; in Rhode Island, Vermont, South Carolina, and Virginia, the Legislature elects the judges; in Florida, the Governor appoints judges of the Superior Courts and judges of the Supreme Court are elected by the people.
[409] Strictly executive functions are not within the jurisdiction of courts of law. See the discussion in Chapter VII.
[410] Marbury v. Madison, 1 Cranch, 137 (1803).
[411] Art. vi., 2, 3.
[412] Chicago, etc., Ry. Co. v. Wellman, 143 U. S., 339 (1892); Frees v. Ford, 6 New York, 176 (1852); Commonwealth v. McCloskey, 2 Rawle (Pa.) 374; Wellington, Petitioner, 16 Pickering (Mass.), 96.
[413] McCulloch v. Maryland, 4 Wheaton, 421 (1819).
[414] Idem., 423.
[415] No. lxxxiv.