authority to negative any law of a State which might conflict with the Federal laws.

"Mr. Sherman thought it unnecessary; as the courts of the states would not consider as valid any law contravening the authority of the Union."23

On August 22nd, the question of ex post facto laws was before the Convention, and Mr. Williamson said: "Such a prohibitory clause is in the Constitution of North Carolina, and though it had been violated, it has done much good there, and may do good here, because the Judges can take hold of it."23a And again on August 28th, we find: "Mr. Madison. Is not that already done by the prohibition of ex post facto laws, which will oblige the Judges to declare interferences null and void?"24

So if Madison's Journal, cited by Justice Clark, and the letters written by members of the Convention, are to be given their proper weight, there can be no doubt as to the intention of the Convention to confer, in the Constitution, authority upon the Supreme Court to declare void acts of Congress unconstitutional. When the history of the Constitution is studied step by step, we cannot doubt but that the language of the Constitution confers the authority. On August 26th the present section 2 of Article III, read: "The judicial Power shall extend to all cases, in Law and Equity, arising under the Laws of the United States, *." On August 27th, Dr. Johnson moved to insert the words 'this Constitution and the' before the word 'laws.' "25

*

*

"Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a judiciary na

(23) Madison's Journal, July 17, Vol. 3, Doc. Hist. Con., 351.

(23a) Madison's Journal, Aug. 22, Vol. 3, Doc. Hist. Con., 593.

(24) Madison's Journal, Aug. 28, Vol. 3, Doc. Hist. Con., 631.

(25) Madison's Journal, Aug. 27, Vol. 3, Doc. Hist. Con., 626.

*

*

*

Section 2 of Article III, now reads: "The judicial Power shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States, * *." No one will doubt but that the Constitution is an instrument of greater authority than Congressional Acts, and Article VI, of the Constitution, wherein it says: "This Constitution, and the Laws of the United States which shall be made in pursuance thereof, *, shall be the supreme Law of the Land," is conclusive on this point. The judicial power extends to all cases arising under the Constitution and the laws of the United States, which shall be made in pursuance thereofthen, is it not necessary for the court, when the question is properly raised, to say whether or not the act of Congress is authorized by, or in "pursuance" of, the Constitution?

,

Justice Clark in each of his articles says that Jefferson, Jackson, and Lincoln, criticised the Supreme Court, intending, no doubt, to leave the impression that each of them questioned the authority of the Court to choose between the Constitution and the acts of Congress. Some of these men were on several sides of many questions-let them speak for themselves. Shortly after the election of Mr. Jefferson to the Presidency, the Legislature of Rhode Island presented him with a congratulatory address

soliciting an expression of his views on the Federal Constitution, and in his reply thereto Mr. Jefferson said: "The Constitution shall be administered by me according to

(26) Madison's Journal, Aug. 27, Vol. 3, Doc. Hist. Con., 626.

(27) Madison's Journal, Aug. 27, Vol. 3, Doc. Hist. Con., 626.

the safe and honest meaning contemplated by the plain understanding of the people at the time of its adoption-a meaning to be found in the explanations of those who advocated, not those who opposed it. These explanations are preserved in the publications of the time."28

What were the publications of the time? After the Convention had concluded its labors, the proposed Constitution was submitted to the people of the State for adop tion. Not to the Legislatures of the States, as suggested by Justice Clark, but to the people through their chosen delegates, for that purpose.29 In many of the States there was great opposition to the adoption of the Constitution, both by speeches and through the press. Its enemies raised every conceivable objection to its adoption. That the Congress had too much power; that the President would become a King, and that too much authority had been given to the Federal Courts. The friends of the Constitution did not deny that great power had been given to the Courts, and that it would be the duty of the Supreme Court to declare void acts of Congress unconstitutional, but defended the same, both by public speeches and through the press.

Hamilton, one of the most active members of the Constitutional Convention, and Madison, also a member of the Convention, known as the "father of the Constitution,"

with John Jay, published a series of articles under the name of "Publius" defending and expounding the meaning of the Constitution. These articles were copied by the press in most of the States where there was a contest, and were published in pamphlet form and given very wide circulation, becoming known as the "Federalist." Six of these articles are devoted to the judiciary, and they are most instructive. No doubt Mr. Jefferson had the Federalist in mind when he wrote to the Legislature of

(28) Elliot's Debates, Vol. 4, page 446. (29) Elliot's Debates, Vol. 1, pages 319, 335, Article VII of Constitution.

Rhode Island. In number LXXVIII, and everyone should read the entire paper, Mr. Hamilton said:

"The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority: such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

"Some preplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void must necessarily be superior to the one whose acts must be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

"There is no position which depends on clearer principles than every act of dele gated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they

forbid.

"A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascer tain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be

an

irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws rather than by those which

are not fundamental."

Can argument be more convincing than the above from Hamilton? John Marshall was one of the delegates to the Virginia Convention which adopted the Constitution. The Constitution was most bitterly fought in that Convention. Patrick Henry with all the force of his great eloquence led the fight against its adoption, and did not overlook the Supreme Court of the United States. In reply Mr. Marshall said in part: "These, sir, are the points of federal jurisdiction to which he objects, with a few exceptions. Let us examine each of them with a supposition that the same impartiality will be observed there as in other courts, and then see if any mischief will result from them. With respect to its cognizance in all cases arising under the Constitution and the laws of the United States, he says that, the laws of the United States being paramount to the laws of the particular states, there is no case but what this will extend to. Has the Government of the United States power to make laws on every subject? Does he understand it so? Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can they go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void."30

(30) Elliot's Debates, Vol. 3, page 553.

Patrick Henry, among other things, said: "When Congress, by virtue of this sweeping clause, will organize these courts, they cannot depart from the Constitution; and their laws in opposition to the Constitution would be void. If Congress, under the specious pretense of pursuing this clause, altered it, and prohibited appeals as to fact, the federal judges, if they spoke the sentiments of independent men, would declare their prohibition nugatory and void."31

Wilson and others in Pennsylvania; Ellsworth and Sherman in Connecticut, and delegates in all the Conventions where the question was raised, admitted that the Constitution gave the authority to the Supreme Court, and defended it. President Adams, knowing John Marshall's avowedly strong views on the authority of the Court in this regard, appointed him in 1801 Chief Justice of the Court, saying, "This is the greatest act of my administration." Luther Martin, a delegate from Maryland to the Constitutional Convention, refused to sign the instrument, and wrote a letter to the people of Maryland, in which he called attention to the many things which he considered defects in the new Constitution, and urged the people not to adopt it, had this to say of the Court:

"Whether, therefore, any laws or regulations of the Congress, any acts of its president or other officers, are contrary to, or not warranted by, the Constitution, rests only with the judges who are appointed by Congress, to determine; by whose determination every state must be bound."32

For several years after the adoption of the Constitution, there sat in Congress many of the men who had been active in the Constitutional Convention, and the debates of the early sessions of Congress throw much light on the meaning of the instrument. In the Senate in January, 1800, Mr. Mason

said:

"It will be found that the people, in forming their Constitution, meant to make the judges as independent of the legislature as of the executive; because the duties they have to perform call upon them to expound

(31) Elliot's Debates, Vol. 3, pages 540, 541. (32) Elliot's Debates, Vol. 1, page 380.

not only the laws, but the Constitution also ; in which is involved the power of checking the legislature, in case it should pass any laws in violation of the Constitution. For this reason, it was more important that the judges in this country should be placed beyond the control of the legislature, than in other countries, where no such power attaches to them.

"He knew that they might pass unconstitutional laws: and that the judges, sworn to support the Constitution, would refuse to carry them into effect; and he knew that the legislature might contend for the execution of their statutes. Hence the necessity of placing the judges above the influence of these passions; and for these reasons the Constitution had put them out of the power of the legislature."33

The celebrated "Virginia Resolutions" of 1798, pronouncing certain Alien and Sedition Laws unconstitutional, and calling on the other States to join Virginia in resisting them, received a cold shoulder from most of the States, and the reply of Rhode Island is somewhat typical of the answers received by Virginia:

irresistible force. The Supreme Court, it is admitted, may nullify an act of Congress, by declaring it to be unconstitutional. Can Congress, after such a nullification, proceed to enforce the law, even if they should differ in opinion from the court?"35

Justice Clark says that Jackson had denied the authority of the Supreme Court in this respect. In November, 1832, South Carolina passed an Ordinance, touching the tariff laws of the United States, which, had the State been permitted to carry out,

would have taken the State out of the Union. President Jackson issued a Proclamation to the State, which had the desired effect, wherein he said:

"If it should be said that public opinion is a sufficient check against the abuse of this power, it may be asked why it is not deemed a sufficient guard against the passage of an unconstitutional act by Congress. There is, however, a restraint, in this last case, which makes the assumed power of a state more indefensible, and which does not exist in the other. There are two appeals from an unconstitutional act passed by Congress-one to the judistates."36

1799.

"Certain resolutions of the legislature of Virginia, passed on 21st of December last, being communicated to this Assembly

"1. Resolved, That, in the opinion of this legislature, the second section of third article of the Constitution of the United States, in these words, to-wit-'The judicial power shall extend to all cases arising under the laws of the United States'-vests in the federal courts, exclusively, and in the Supreme Court of the United States, ultimately, the authority of deciding on the constitutionality of any law of the Congress of the United States."34

It is generally known that Webster had no doubts as to the authority of the Court, and in the famous debate in the Senate in 1830, between Mr. Webster and Mr. Hayne, with which most school boys are familiar, Mr. Hayne said:

"But there is one point of view in which this matter presents itself to my mind with

(33) Elliot's Debates, Vol. 4, page 442. (34) Elliot's Debates, Vol. 4, page 533.

Lincoln exercised the right to criticize the Court, but he never denied the right of the Court to declare void acts unconstitutional. In a speech in Springfield, Ill., he said: "We believe as much as Judge Douglas (perhaps more), in obedience to and respect for the judicial department of government. We think its decisions on constitutional questions, when fully settled, should control, not only the particular case decided, but the general policy of the country, subject to be disturbed only by amendments to the Constitution as provided in that instrument itself. More than this would be revolution."37

History does not support, and for that reason I cannot agree with the statement that, "Judge Marshall recognized this in Marbury v. Madison, in which case in an

(35) Elliot's Debates, Vol. 4, page 514. (36) Elliot's Debates, Vol. 4, page 584. (37) Reply to Douglas, June 26, 1857 (Centenary Edition of Lincoln's Speeches).