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not only the constitutionality but also the expediency of proposed legislation. The difference between this power and the power to disregard an unconstitutional statute in a litigated case is apparent. The proposal for a revisionary council was rejected.

Not only was no proposition to confer upon the judges the power in litigated cases to declare unconstitutional legislation void ever presented to the Convention, but the existence of such a power was expressly recognized in the debates on the proposition to create the revisionary council.13 And one of the arguments urged against the power of revision was that it would constitute an additional check which the judges would have over lawmaking. In opposing the measure Luther Martin said: 14 "As to the constitutionality of laws, that point will come before the judges in their proper official character. In this character they will have a negative on the laws. Join them with the executive in the revision and they will have a double negative.'

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The views of the members of the Constitutional Convention on the subject of the power of the judges to declare unconstitutional statutes void have recently been very carefully examined. It appears that of the fifty-five members of the Convention at least one-third took little or no part in its proceedings. As to some of the rest there is no evidence indicating their opinion on the question. But it is clearly established that a decided majority of the active members of the Convention held that the judges would have the power in the exercise of their judicial office to pass upon the constitutionality of legislation and to refuse to enforce those laws found unconstitutional. Only three members are known to have been of a contrary opinion, and they were men of no special prominence.15

13-See Beard, Chapter II.
14-Beard, p. 34; 2 Farrand,

15-Beard, p. 51.

The enactment of the twenty-fifth section of the Judiciary Act of 1789, giving the Supreme Court the power to review the judgments of state courts as to the constitutionality of state and federal legislation, is an impressive contemporaneous recognition of the power of the courts to pass on the constitutionality of statutes. Several of the members of the Convention participating in the enactment of this statute had been members also of the Constitutional Convention.

§ 17. View of Alexander Hamilton. The evidence on this subject is abundant and conclusive and is easily accessible to all. It is not necessary, therefore, to set it out in detail. It may be useful, however, to present the views of two of the most conspicuous men of the times, Alexander Hamilton and John Marshall.

The views of Hamilton are found in the Federalist, a work which though written for the specific purpose of persuading the people of New York state to ratify the Constitution, has always been regarded as the most authoritative of the early expositions of the Constitution. Hamilton, the principal author of the Federalist, had been a member of the Convention and was one of the ablest men this country has produced. His views on the subject in question are, in part, as follows: 16

"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 exemptions 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 in no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the mani

16-The Federalist, No. 78. The entire number is of interest in this

connection.

fest tenor of the Constitution void. Without this, all the reservation of particular rights or privileges would amount to nothing. . . . There is no position which depends on clearer principles than that every act of a delegated 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. . . If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered that this cannot be the natural presumption where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar function of the courts. A constitution is, in fact, and must be regarded by the judges as a fundamental law. It must, therefore, belong to them to ascertain 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; 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 Consti

tution, the judges ought to be governed by the latter rather than the former."

§ 18. View of John Marshall. The power and duty of the courts to pass upon the constitutionality of legislation were expressly recognized in the discussions of some of the state conventions that ratified the Constitution. Thus we find the express declarations of James Wilson before the Pennsylvania convention,1 of Oliver Ellsworth before the Connecticut convention,18 and of John Marshall before the Virginia convention.19 A peculiar interest attaches to the remarks of Marshall on this subject as he afterwards as chief justice was the first to declare a federal statute void. Objections having been raised in the Virginia convention respecting the danger of the encroachment of the federal power on that of the states, Marshall pointed out that the proposed federal government was one of enumerated and limited powers and said:

"Has the government of the United States power to make laws on every subject? . . . 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

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of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void." Beard, p. 72; 2 Elliot's Debates, 196.

19-Beard, p. 69; 3 Elliot's Debates, 553.

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."

Fifteen years later for the first and only time in his long career as chief justice he exercised the power so clearly announced by him before the Virginia convention.

§ 19. How the power has been exercised by the Supreme Court. While a good deal of attention has been paid in the past to the question as to whether the courts may rightfully declare a statute unconstitutional, the connected but distinct question as to how the court has used that power has been largely overlooked. It appears to have been assumed in some of the discussions that a great many acts of Congress have been nullified in this manner by the Supreme Court. This, however, is not the fact.

The first case in which an act of Congress was held unconstitutional was the famous case of Marbury v. Madison 20 decided by Chief Justice Marshall in 1803. Sixtytwo years elapsed before the second case, in which, as in the first case, the Supreme Court dismissed a suit for want of jurisdiction.21 Since then statutes or parts of statutes have been held unconstitutional in twenty-nine cases.2

20-1 Cranch 137. For account of this case, see post, § 62.

The Supreme Court first assumed jurisdiction to pass upon the constitutionality of an act of Congress in 1795 in the case of Hylton v. United States, 3 Dall. 171, in which a tax law was unanimously held constitutional.

21-Gordon v. United States, 2 Wall. 561. For the opinion in this case, said to be the last opinion written by Chief Justice Taney, see 117 U. S. 697, and for a further ac

22

count of this case, see the opinion in United States v. Jones, 119 U. S. 477.

22-Ex parte Garland (1866), 4 Wall. 33; Reichart v. Felps (1867), 6 Wall. 160; The Alicia (1868), 7 Wall. 571; Hepburn v. Griswold (1869), 8 Wall. 603; United States v. Dewitt (1869), 9 Wall. 41; Justices v. Murray (1869), 9 Wall. 274; United States v. Klein (1872), 13 Wall. 322; United States v. Reese (1875), 92 U. S. 214; United States v. Fox (1877), 95 U. S. 670; Trade

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