Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1829-01-13
@fficiat 3saper.-

]
ciary Committee, in the House of Representative
OF the ". States, oil which, owing to the inpuct-
lance Of the subject three thousand cxtra csnics
were ordered 10 be printed: -
The Committee on the Judiciary TO whom wac
referred the resolution Of the House insructins-
| them TO inquire into the expediency of providing,
by law, that a greater number than a majority
,ofihe Supreme Court should concur in r,rono,,nr.
| ing any part OF State Constitution, or actofai
State Legislature, TO be invalid. and that with
| outsuch concurrence, no part of Constitution
| oil State, or act o! State Legislature. shall
be holden invalid, beg leave to submit the ioS-
| lowing tt
REPORT:
The committee, considering the subject maHer
OF The resolution TO be Of great importance
have bestowed upon II that grave consideration
which il so emphatcally deserved. At an early
period OF our judicial history the principle was
decided IN the Supreme Federal Court, that il was
within their competency TO decide any law to be
void, which was in contravention of the constitu-
ton | his decision was placed by them upon the
ground that the constitution and laws of the uni
ted States made in pursuance thereof and treaties
made under the authority Of the United States,
were declared 10 be the supreme law of the Aand:
they therefore held, that, when any State const-
tuition or law came, in their opinion into conflict
with what was declared to be the supreme law
that which was not supreme must yield 10 that
which trdS; and that consequently any State con-
snnuoh or ia'S, mus coming into conflict, must be
held nu:l and void. Ii will be seen that this is a
principle derived by our judiciary from the nafuro
Oh our written constitution, imposing many )irniia-
tons ana restrictions, as well upon the Federal as
State Governments, and at the same time pnors
its face, declaring its own supremacy The,com-
nitsee do not propose at all explore the founda
tons OF this great principle; but, taking il as one
winch has long been decided and acted upon they
cannot iorhear TO remark, that the power which il
implies Is one oil great gnitude and most or ten
size operation; embracing within i's compyeben-
sivc grasp the authority to nuIlfy the legislative
acts ofthe Union, and of the States indis.itualIv
and even the most solemn Of all acts, The expres,
sion oil the viii Of the sovereign People OF the
states, IN the form OF their written constitutions
| That power 50 tremendous should be fenced a.
round with prcl~r guards, is proposition which
! the committee suppose scarcely requires the aij
OF argument 10 challenge the assent of all They
are awaTF. that II Is question about which there
! s much more difference Of opinion 10 what'ex-.
tent this caution shall b. clri .d!-As the Supreme
Court OF the U. :. is al resent organized il coz
| sists o seven members, Of whom four constitu "a
a quorum, and three being majority OF that QUO.
rum. l'rcsuits that the concurrence OF three ,of
the Judges is competent 10 the notification of a
State law, constitution; it may then bar
pen, in the actual posture OF Judiciary aha, n
I minority of III Cont might nulify the most So
Tenn acts oftiie States, whilst the majority Of tho
Court might possibly entertain different opinion
The Committee presume that there. are but fe W
W no would not at once acquiesce in the ulstice
and proprieiy Of the proposition, that in making &c
solemn and important decision there should Sc
a concurrence OF at least majority of the whole
Court. They however think that II would be adj
visable to require the concurrence OF five mem.
!
more or less and upon which j. is admitted that IL
canno; be predicated with absolute certainty tina:
any particular number is the proper one, but they
viii offer 10 the House some OF the prominent con.
sleradons which have induced III elm TO decide in
! favor OF the number five.
II viii he recollec;ed, that in controversies
cInating in the State Courts, question copccrnire
The validity OF a State law, Constitutions eanna.
! be brought before the Supreme Court OF the Eh,-
I ted States unit il shall have been ad;udisated nv
he highest State tribunal nor unless the jecision
,.ss a.. n -
dity. Before. hen the Supreme Cout AN pass upop
such question. in any case, the validity of The
law, or Constitution, the case NAV be- must
have received The most authoritative stamp of an-
probation in the state III which it arose. Ii il re-
late TO The validity Of law, il must have been
approved OF by both the branches OF the Leeis(a-
turc II 1t relate to that OF Constitutions il must
/ have been approved Of By the People OF the
state, i'll The exercise Of their sovereign power
IN their primary assembly, az a Convention; and
/ II must, IN controversies originating in STATE
! Courts also have been decided in favor Of BY the
ourt of deruer resort in lie State. In this pos-
ttre OF The subject, It bare majority of the SUI
prerne Court OF the United States should decide,
agains, the validity, the State, whose Constitution
or law, was thus nullited, can scarcely acauiescs
without murmur, especially when 1t is consider
ed, that, besides The concuTring appreciation of ts
Convention Legislature, and its judiciary, II
iniehtbe sustained by that also of the three re-
naming members Of The Court; and when tits re-
jnem5ercd, too, that the question must always be
whether tue State has, has not, ,anscenied Gle
limits of its reserved rights growing Of ts-com
pact with another party. to wit the Federal Co
vcTninent, and thar The Supreme Court of the Uni
ted States c-!he tribunal of that otiIsr party
The concurrence. then, OF greater number than
bare majority OF that itunal, will tend 10 pro.
Guce a greater spirit OF arguie scence IN o,,;s,
heari-burninGs, and thus add a strong cement 10
ilai Union which all desire 10 be indissoluble
ssd perpetual.
Nor is the selection Of he number FIVE Al AL
40 arbitrary one as might possibly at The FIRST view
be supposed The Constitution of the United States
III several instances, where the subject is iopor
tdnt requires the concurrence of two thit of tho
boay called upon to act in relation To it, Thus an
amcndmcnt TO itself cannot even be originated
WiUhont the concurrent vote Of two thirds Of both
Houses OF Congress or the application of t,yo-thrls
Of the several States--Thus, too, a treaty cannot
De TaniIcd without the concurring vote ogt,To-
'hrus ~ the Senators present. But there il anoih-
er provision Of that instrument which bears much
closer analogy to the present question, because =
mas reference to judicial tribunal; it is that
which declares, that in case Of impeat fn,t nt no
person shall be convicted without the. conct,r.
renee OF two-thrds Of the members of the Sen.
ate present " will AZ once be- seen by the House.
4 tidt the number tiveis may be 10 flrat
! proportion Of tho whole Court
! Nor can the Committee perceive any vel
founded objection 10 the requisition of mole
/ 'bsn bare majority; because they hold i, 10
/ be sound principle, that the successive an.
probation Of tho convention or Jeglsratuso
Of state, and Of its highest indicisl fr;b1,n5S
ought. az least, TO proven, the notification ola con,
'htuton or law in every case of doubtful charse.
Ter ara indeed IN every in which lis inro,,-
ldUp NY WITH ihe supreme law WIS not clear be-
Eoi' any rational doubt; and in cases OF lin
y! class, Ut can scarcely he doubted, but five nj