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 legislature 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

It is also not entirely un

take an oath to support it? worthy 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

§ 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

3 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.

stitution there would seem to be little doubt, though there are indeed some who still question it.1

That it was the possible absorption of undue powers by the legislature which the constitutional fathers expressly feared, there is abundant evidence in the records of their views which have been preserved. The following is but one of many similar quotations that might be made. In the Federalist, Madison writes: "In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger and watched with all the jealousy which a zeal for liberty ought to inspire. . . . But in a representative republic, where the executive magistracy is limited both in the extent and the duration of its power; and where the legislative power is exercised by an assembly which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength, which is

4 See for example American Law Review, XL, 356, article entitled "The Great Usurpation," and North American Review, August 16, 1907, article entitled "Judicial Nullification of Acts of Congress."

5 No. XLVIII.

The argument, upon grounds of expediency, for giving the power to the courts is stated by Webster and Kent as follows: Webster says: "It cannot be denied that one great object of written constitutions is to keep the departments of government as distinct as possible; and for this purpose to impose restraints designed to have that effect. And it is equally true, that there is no department on which it is more necessary to impose restraints than the legislative. The tendency of things is almost always to augment the power of that department in its relation to the judiciary. The judiciary is composed of few persons, and those not such as mix habitually in the pursuits and objects which most engage public men. They are not, or never should be, political men. They have often unpleasant duties to perform, and their conduct is often liable to be canvassed and censured, where their reasons for it are not known, or cannot be understood. The legislature holds the public purse. It fixes the compensation of all other departments; it applies, as well as raises, all revenue. It is a numerous body and necessarily carries along with it a great force of public opinion. Its members are public men, in constant contact with one another, and with their constituents. It would seem to be plain enough that, without constitutional provisions which should be fixed and certain, such a department, in case of excitement, would be able to encroach on the judiciary. Therefore is it, that a security of judicial independence becomes necessary." Works, III, 29.

Kent declares: "From the mass of powers necessarily vested in the legiclature, and the active and sovereign nature of these powers; from the

sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions by all the means which reason prescribes, it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. Its constitutional powers being at once more exclusive and less susceptible of precise limits, it can, with greater facility, mask under complicated and indirect measures, the encroachments that it makes on co-ordinate departments."

§ 5. Courts Do Not "Nullify" Laws.

The doctrine that an unconstitutional law is void is often stated as a deduction from the premise that constitutional law is a superior kind of law to which statute law of inferior rank is obliged to yield. Accurately speaking, however, this is not the case, for the unconstitutional statute is not law at all, whatever its form or however solemnly enacted and promulgated.

There are not and cannot be degrees of legal validity. Any given rule of conduct or definition of a right either is or is not

numerous bodies of which the legislature is composed, the popular sympathies which it excites, and its immediate dependence upon the people by means of frequent periodical clections, it follows that the legislative department of the government will have a decided superiority of influence. It is constantly acting upon all the great interests of society, and agitating its hopes and fears. It is liable to be constantly swayed by popular prejudice and passion, and it is difficult to keep it from pressing with injurious weight upon the constitutional rights and privileges of the other departments. An independent judiciary, venerable by its gravity, its dignity and its wisdom, and deliberating with entire serenity and moderation, is peculiarly fitted for the exalted duty of expounding the Constitution, and taxing the validity of statutes by that standard. It is only by the free exercise of this power that courts of justice are enabled to repel assaults, and to protect every part of the government, and every member of the community, from undue and destructive innovations upon their chartered rights. It has accordingly become a settled principle in the legal polity of this country, that it belongs to the judicial power, as a matter of right and duty, to declare every act of the legislature, made in violation of the Constitution, null and void." Commentaries, Lect. XX.