Delaware journal. [volume] (Wilmington [Del.]) 1827-1832, 1829-01-20
cH.SIc.Al PAPER

The following is the Report made by the Judicial
ry Committee, in the House of Representatives, on
Friday last, of which owing TO the Importance Of
The subject, three Thousand extra copies order
ed to be printed Nat. Int.
The Committee on the Judiciary to whom was re-
ferred the resolution of the House, instructing
them to inquire into the expediency OF providing,
by law, that greater number than majority of
the Supreme Court should concur, in pronouncing
any part of State Constitution, or act of State
Legislature TO be invalid, and that. without such
concurrence, no part of constitution OF State,
or act Of State Legislature, shall be holden in
valid beg leave TO submit the following re-
port
The committee, considering the subject matter of
the resolution 10 be one OF great importance, have
bsaGN "a upon it that grave consideration which it so
emphaiicalty deserved AT an early period of our
aicla history, the principle decided in the Su-
prene Federal Court that it was within their com
potency to decide any law to be void, which was in
conlravcnon of the constitution. This decision
was placed Ivy them upon the ground that the con-
stitution, and laws of the United States made in pur
suance thereof, and treaties made under the author
liy Of the United States, we're declared to be the
supreme law of the land they therefore held that
when any State constitution OF law came,. in their
opinion, into conflict with what was declared 10 be
yield to that which ayas and that consequently any
State constitution or law, thus coming into conflict;
must be held null and void. 1t will be seen that this
IS principle derived by our Judiciary from the ma
ture OF written constitution, imposing many lin
Itations and restrictions, well upon the Federal
as State Governments, and at the same time upon
its face, declaring its own supremacy. The COM
mlttee do not propose at all to explore the founda-
tons OF this great principle but, taking it one
which has long been decided and acted upon, they
cannot forbear to remark, that the power which il
implies is one of great magnitude and most extensive
operation; embracing within its comprehensive
grasp the authority to nuiliy the legislative acts of
the Union, and the States, individually, and even
the most solemn OF all acts, the expression of the
will ofthe sovereign People of the States, in the
form OF their written Constitution. That a power
so tremendous should be fenced around with proper
guards, is Il proposition which, the committee sup
pose scarcely requires the aid of argument to chal
enge the assent OF all. They are aware that is
question about which there is much more difference
OF opinion to what extent this caution shall be car
ried. As the Supreme Court of the United States
Is al present organized, it consist of seven mem.
bers ofwhom four constitute aquorum, and three
beng majority of that quorum it results, that the
concurrence of three of the Judges is competent TO
the qualification of State law even constitution;
it may then happen, in the actual posture of our Ju
dietary, that minority of the Court might nuIify
the most solemn acts of the States, whilst the major
y of the Court might possibly entertain different
opinion
The committee presume that there are but few
who would not at once acquiesce in the justice and
propriety Of the proposon,tha in making so solemn
and important decision, there should be concur.
renee of at least mcjory Of the whole Court They
however, think that it would be ADVISABLE to re-
quire the concurrence of five members of the Court.
This is. indeed, question Of more or less, and upon
which it is admitted that it cannot be predcated
with absolute certainty, that any particular number
is the proper one but they will offer to the House
some of the prominent considerations which have
induced them to decide in favor of the number
FIVE.
1t will be recollected, that, in controversies orig-