where this proper authority resides; or, that no one is bound by a law which he thinks is unconstitutional, which is nonsense. It is not open to contradiction that judicial review posits a constitutional system, complete in all points, and furnished with the machinery for determining all questions that arise out of it. But the right of revolution is a right external to any constitution, and therefore to invoke it as a means of settling constitutional questions is to discard the constitution at the outset.3 33

And similarly is the doctrine that the power to construe the constitution is a departmental function allowable or unallowable according as one understands it. If what is meant by it is that all functionaries of government have to interpret the constitution prelimi

33 Vattel's Apothegm that the legislature cannot "change the constitution without destroying the foundation of its authority” was a commonplace in Massachusetts before the Revolution : see the Massachusetts Circular Letter of 1768 in MacDonald, Documentary Source Book, 146-50. For interesting statements basing judicial review on the right of revolution, see Elliot, II, 100-06 (Parsons in the Massachusetts convention), and IV, 93-4 (Steele in the North Carolina convention); also note 58, below. In confirmation of the view set forth in the text, that judicial review is not a revolutionary function, are the following words by Curtis, Const'l Hist. II, 13 (Ed. of 1890): "The government of the U. S. has no prerogative which entitles it to be exempt from revolution, when the people choose to resort to that desperate remedy. It must defend its rightful existence and authority by the means with which the Constitution has clothed it. But the right to resort to revolution against intolerable oppression is governed by no law. The right to find relief against an act of Congress which transcends its constitutional powers springs from and is regulated by the Constitution itself. It is a right that can be exercised only by resorting to a judicial remedy."

nary to performing their supposed duties under it, in the same way that the private citizen has to interpret the ordinary law whenever he performs an act having legal consequences-why the theory is correct enough, but perhaps hardly necessary. On the other hand, if what is meant is that the three departments have an equal right, when acting within their respective spheres, to determine the validity of their own acts, then it is untrue.

But the second meaning is in fact, as we shall see later, the meaning which was attached to the doctrine by those who brought it forth, not to support judicial review but to arrest it. And this is still its meaning in the classic statement of it in President Jackson's famous Veto Message of July 10, 1832. Said the President on that occasion:

"The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. . . . The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges; and, on that point, the President is independent of both."34

The day following the appearance of the message, Webster replied to it, on the floor of the Senate, in the following terms:

"The President is as much bound by the law as any private citizen. . . . He may refuse to obey the law and so may any private citizen, but both do it at their own peril and neither can settle the question of its validity.

34

J. D. Richardson, Messages and Papers of the Presidents, II, 582.

The President may say a law is unconstitutional, but he is not the judge. If it were otherwise, there would be not government of laws, but we should all live under the government, the rule, the caprices of individuals;

The President, if the principle and reasoning of the message be sound, may either execute or not execute the laws of the land, according to his sovereign pleasure. He may refuse to put into execution one law, pronounced valid by all branches of government, and yet execute another which may have been by constitutional authority pronounced void." The message converted "constitutional limitations of power into mere matters of opinion," denied "first principles," contradicted "truths heretofore received as indisputable," denied "to the judiciary the interpretation of the law."

And Webster elsewhere inquired, with pertinent reference to a then impending issue: "Does nullification teach anything more revolutionary ?”35

But indeed, Professor McLaughlin too urges that the political departments are obliged "to accept as final . . . the decision of the court in the particular case." Yet he also contends that further acquiescence by these departments in the views of the judiciary on constitutional questions is not required by constitutional theory, but must be reckoned as "accommodation" on their part based on reasons of expediency. The significance of this view all hinges on the meaning of the word "decision" in the phrase "decision of the court in the particular case." This may mean

35

Speech of July 11, 1832; speech of Oct. 12, 1832, before the Whig convention at Worcester, Mass.: Works, II, 122 (National Ed.). The logical implications of Jackson's doctrine were soon illustrated. At the close of this year the Sup. Ct. rendered its decision in Worcester v. Ga., 6 Pet. 515, which the Pres. refused to enforce, saying: "John Marshall has made his decision, now let him enforce it": Greeley, Am. Conflict, I, 106.

merely the judgment of the court on the question of rights at issue between the parties to the case or it may mean, where the judgment is based on the nullity of an act of the legislature, the court's determination that the act was null, or, even more broadly, the reasons given by the court for this determination. To discuss the last meaning would take us too far afield, and is unnecessary. For even if we take the second meaning as the correct one, the right of the court to pass finally on the validity of the acts of the legislature as these come before it is admitted, and the doctrine of departmental construction of the constitution is quoad hoc abandoned.

But it may have been Professor McLaughlin's intention to voice acceptance of a theory which has the support of Bancroft, Meigs, and other authorities, and which, stated in its clearest form, runs thus:

"The judicial power extends to the determination of 'cases,' not questions. . . There is no power in the courts to annul an act of Congress, but only to decide 'cases'. . . . There is no power anywhere to annul an act because deemed unconstitutional. The President may declare that, in his opinion, an act is void because unconstitutional, and refuse to enforce it; and so may the courts; but neither can control the other. . . . The judiciary can no more annul an act of Congress on the ground of its unconstitutionality than Congress can set aside a decree of the courts because without jurisdiction."36

36 R. G. Street, 6 Reports of Am. Bar Assoc., 184-6. Bancroft's view is to be found on page 350 of volume VI of his History (Last Revision), thus: "The decision of the court in all cases within its jurisdiction is final between the parties to a suit and must be carried into effect by the proper officers; but as an interpretation of the Constitution, it does not bind the

Obviously the question raised by this theory is as to the correctness of the view it states of the scope of judicial duty. The courts, it is said, decide cases, and it is thence concluded that the other departments must support them in the exercise of their constitutional prerogative. This definition of the scope of judicial duty is, however, erroneous. It is not the duty nor yet the power of courts to decide cases, but to decide them in accordance with the law, of which the constitution is part and parcel; and if the other departments are bound by their decisions it is because they are presumed by the constitution itself to be in accordance with the constitution and laws. Otherwise, we should be confronted with the solecism of those sworn to support the constitution obliged by it to promote its violation on occasion. The courts then must ascertain the meaning of the constitution and laws, from which it would seem to follow that those who are bound by the constitution are bound by the judicial view of it in the same general sense as that in which those bound by the ordinary law are bound by the judicial view of it. In neither case does the judicial view attempt to constrain opinion but it does set the standard of acts when these fall within judicial cognizance.

But not only does the theory under discussion land us in paradox, but it is contrary to fact. The fact of the matter is that the courts do annul legislative acts,

President or the Legislature of the United States." This view is stated ex cathedra and without any attempt at argument, and three pages later (p. 353) is substantially contradicted. Mr. Meig's view will be found in 19 Am. Law Rev. 190-203.