principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop

here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. . . . It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a supreme paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. . . Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be that an act of the legislature repugnant to the Constitution is void. If an act of the legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? . . . It is emphatically the province and duty of the judicial department to say what the law is. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply."

The reasoning of Webster and Kent as to the invalidity of

legislative acts contrary to the Constitution, and as to the power of the court to declare them such, is substantially the same as that of Marshall.2

§ 3. Criticism.

The force of the reasoning of Marshall, Webster and Kent may in some respects be questioned, or at least added to.

That organ or body which has the final power to interpret the Constitution has necessarily the power to give to that instrument what meaning it will. It thus becomes, in a sense, supreme over all the other organs of government. Unless, therefore, the body from whose action the Constitution itself derived its force is to be resorted to in every case of doubtful construction (and this, of course, is impracticable) the only alternative is to delegate this supreme power to some one of the permanent organs of government. But it does not necessarily follow, as the reasoning of Marshall, Webster and Kent would seem to indicate, that, as an abstract proposition, this power must always be possessed by the judiciary. Indeed, in all other countries except the United States, this power is vested in the legislature. These other written constitutions did not, indeed, exist at the time that Marshall rendered his opinion, but their present existence shows that under a written instrument of government it does not necessarily follow that the courts should have a power to hold void legislative acts contrary to its provisions.

If, then, the possession of this power by American courts is to be established, it must be by a resort either to the words of

2 Webster declares: "The Constitution being the supreme law, it follows of course, that every act of the legislature contrary to the law must be void. But who shall decide this question? Shall the legislature itself decide it? If so, then the Constitution ceases to be a legal and becomes only a moral restraint on the legislature. If they, and they only, are to judge whether their acts be conformable to the Constitution, then the Constitution is admonitory or advisory only, not legally binding; because, if the construction of it rest wholly with them, their discretion, in particular cases, may be in favor of very erroneous and dangerous constructions. Hence the courts of law, necessarily, when the case arises, must decide upon the validity of particular acts." Webster, Works, Vol. III, 30.

the Constitution itself; or, if these be not explicit, to the general intention of the framers and adopters of the Constitution, so far as this intention may be deduced from the general nature of the government sought to be established, from the records preserved of the conventions in which the instrument was framed and adopted, and from the precedents drawn from colonial practice, if any such are to be found. We are not here concerned, it is to be repeated, with the question whether the federal judiciary should have the power to hold void such acts of the state legislatures as might contravene the provisions of the federal Constitution. This is a distinct question and is considered in its proper place. We have here to deal with the power of the federal courts to refuse to recognize the validity of such acts of the National Legislature as it may consider unconstitutional, and of state tribunals to hold void acts of their state legislatures because contrary to their respective state Constitutions.

As regards state precedents prior to the adoption of the federal Constitution it may be said that there are scarcely to be found a sufficient number to warrant one in saying that the doctrine had

Kent, in his Commentaries, says: "The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void. The judicial department is the proper power in the government to determine whether a statute be or be not constitutional. The interpretation or construction of the Constitution is as much a judicial act, and requires the exercise of the same legal discretion, as the interpretation or construction of a law. To contend that the courts of justice must obey the requisitions of an act of the legis lature when it appears to them to have been passed in violation of the Constitution, would be to contend that the law was superior to the Constitution, and that the judges had no right to lock into it, and regard it as a paramount law. It would be rendering the power of the agent greater than that of his principal and be declaring that the will of only one concurrent and co-ordinate department of the subordinate authorities under the Constitution was absolute over the other departments, and competent to control. according to its own will and pleasure, the whole fabric of the government, and the fundamental laws on which it rested. The attempt to impose restraints upon the exercise of the legislative power would be fruitless, if the constitutional provisions were left without any power in the government to guard and enforce them." Chapter XX.

become an established one in America in 1787, and therefore to be presumed to have been held by the framers and adopters of the federal Constitution. Still there had been a few instances in which, prior to 1789, the courts had held void acts of their respective legislatures, though not without incurring more or less animadversion for so doing.

Whatever may be the evidence of prior state or colonial practice, it appears quite plainly from the proceedings of the constitutional convention, as well as from the words of the Constitution itself, that it was intended that the courts should have the power of disregarding unconstitutional legislative acts. The greatest solicitude was constantly expressed that the national legislative power should be prevented from encroaching upon the powers of the other departments of government, and a great variety of schemes for preventing this were discussed. In addition to the qualified presidential veto which was finally adopted, it was expressly provided that the Constitution and the laws of the United States made in pursuance thereof should be the supreme law of the land, and that the federal judicial power should extend to "all cases, in law and equity, arising under the Constitution." From this would clearly appear an intention that the courts should have the power to consider the constitutionality of legislative acts.

Marshall in his opinion in Marbury v. Madison adverts to this, but does not, as he should have done, make it the foundation of his argument. He says: "The judicial power of the United States is extended to all cases arising under the Constitution. Could it be the intention of those who gave this power, to say that in using it the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained." After quoting certain prohibitions of the Constitution upon legislative action, Marshall continues: "From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to

take an oath to support it? It is also not entirely unworthy of observation that in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank. Thus the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument."

This last paragraph clearly exhibits the sequence of the argument in Marshall's mind. First is stated the abstract principle, necessarily bound up with the idea of a written fundamental instrument of government, that the constitutionality of a legislative act may be questioned by the courts. Then the validity of this principle is supported by the express provisions of the Constitution itself. This first observed principle we have seen to be not a necessary one. The entire argument should therefore have been thrown upon the provisions of the Constitution itself interpreted in the light of the intentions of its framers so far as these intentions are discoverable from the debates in the federal constitutional convention and the state ratifying conventions.3

§ 4. The Expediency of This Judicial Power.

As regards the expediency of granting to the courts rather than to the legislature itself the final power of construing the Con

It is generally stated that the power of the courts to declare void unconstitutional laws is an implied one and not an expressly granted power. Mr. Brinton Coxe, however, in his interesting work, Judicial Power and Unconstitutional Legislation, argues that the power is expressly given in the clauses which have been quoted in the text,― not expressly in the sense of being unequivocally stated in so many words, but as being necessarily intended by the words used, and not implied as a means of rendering effective some other expressly granted power. In other words, he says in effect, that the power is expressly given even though a careful examination of the text is required to determine the fact. To the author, however, it seems more satisfactory to hold the power an implied one - implied from the express authority given to the federal courts to adjudicate all cases arising under the Constitution which is declared to be the supreme law of the land.