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thereto, and may by those very laws be disabled from such an act.” He adds, that neither the Constitutions of the State Governments, nor that of the United States, can be said to be founded upon the consent of the whole people. Nor were they founded upon the consent of even the whole of that portion of the people who were by the law qualified voters in each case, but only on that of the majority of such qualified voters. He affirms * that “there is not, probably, a single State in the Union, whose Constitution has not been adopted against the opinions and wishes of a large minority, even of the qualified voters; and it is notorious that some of them have been adopted by a small majority of votes ;” and “in respect to the American Revolution itself, it is notorious that it was brought about against the wishes and resistance of a formidable minority of the people.”+ Who are or are not to be deemed qualified voters is a matter, in all the States of the Union, resting on no doctrine of abstract right, but held to be within the discretion and competence of the actual possessors of the franchise, acting under a sense of their responsibility as trustees for the public good. But the decision of these qualified voters, through their representatives, having been duly expressed, the Constitution passed from the nature of a compact into that of a law; it became “a fundamental law, of absolute paramount obligation,” not to be dissolved in the words of Burke), except under the pressure of supreme and inevitable necessity, and by the deliberate choice and determination of the same power that enacted it.* The language of the Constitution itself, in its sixth article, declares it to be the “supreme law of the land ;" and appoints as its arbiter and interpreter, not the varying wills or occasional interests of the individual States, but those high judicial functionaries whom, in its third article, it expressly designates for that purpose. .
* $$ 308–321.
+ $$ 329, 330.
And this last-mentioned peculiarity in the Constitution of the United States is one which ought constantly to be borne in mind in considering it, or in instituting comparisons between it and other systems of government. According to our own law and practice, an Act of Parliament once passed becomes part and parcel of the law of the land. Not so always or necessarily an Act of the Congress of the United States. If that Act should, in the opinion of the judges of the Supreme Court, be contrary to the written words of the Constitution, it is, ipso facto, void and of no effect. “ The Constitution” is the supreme power (not the united act of the legislative and executive power
* $$ 338-372.
of the State in each particular case, as with us); "the judicial power extends to all cases of law and equity under it; and the Courts of the United States are, and in the last resort, the Supreme Court of the United States is, vested with this judicial
The judgments of the Courts of the United States upon constitutional questions are “ of paramount and absolute obligation” throughout all the States; are “conclusive and binding upon the citizens at large;" and
* § 376.
if any attempt be made to alter the written words of the Constitution, such attempt can only be successful by the concurrence of twothirds of both houses of Congress, or of the legislatures of two-thirds of the States, in proposing, and of the legislatures of three-fourths of the States in ratifying, the change.
Not only has the Supreme Court of the United States the power of determining whether “ the laws of Congress, or the acts of its president, are contrary to, or warranted by, the Constitution,” but it has also constantly exercised this power of final interpretation over the acts of the legislatures of the individual States. And in so doing it has been sustained by public opinion, which has in all cases determined that such power resides in the Supreme Court under the terms of the Constitution. The question has been frequently raised; by Virginia in 1798, by Kentucky in 1800, and by other States at different times ; says Mr. Justice Story, “it may be asserted with entire confidence, that for forty years,
* Article 5 of the Constitution.
three-fourths of all the States composing the Union have expressly assented to, or silently approved, this construction of the Constitution, and have resisted every effort to restrict or alter it." *
The reason why this great power should be placed in the judges of the Supreme Court, and not elsewhere, is stated by one of the greatest legal authorities of the United States, the late Chief-Justice Marshall, (in an able judgment upon this important question, in the case of Cohens v. Virginia, given in vol. vi. of Wheatstone's Reports, pages 384 to 390; Story, § 392, note,) to have been, that the judges of the Supreme Court are, by the Constitution, appointed “ during good behaviour,” in other words, for life; whereas the judges in many of the States are appointed for short periods, “and are dependent for office and salary on the will of the legislatures; and the Constitution of the United States furnishes no security against the universal adoption of that principle.” And when “we observe the im
* § 391.