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

mating in the State Courts, question concerno,, A..
validity of State law, or Constitution, cannot bo
brought before the Supreme Court of the Untod
States until shall have been adjudicated bv ,ba
highest State tribunal unless the decision of a4
tribunal shall have been in favor of its VALIDITY Re-
fore, then, the Supreme Court can pass upon such
question, in any case, the validity Of the law on
Constitution. as the may be, must have rece;n
ed the most authoritative stamp Of approbation IN
The State in which it arose. fit relate to The vo
dy of IA law, it must have been approved of bv
both the branches OF the Legislature if il relate r.
that of Constitution, ii must have been approved oc
by the People of The State, in the exercise of their
sovereign power, their primary assembly az a
Convention and it must, in controversies orsua.
ting in State Courts, also have been decided in avo
of, by the Court Of derner resort in the State In
this posture of the subject ii bare majority of ,b
Supreme Court of the United States should decide
against the validity the State, whose Constitution nh
law, was thus nullified, canscarcely acquiesce VIA
out murmur, especially when it is considered tia,
besides the concuring appreciation of its Convention
or Legislature, and its Judiciary. it might be sustain
ed by that also of the three remaining members Of
the Court and when it is remembered, too, that the
question must always be, whether the State has. on
has not, transcribed the limits Gifts reserved rights
growing out of its compact with another party. "a
witt the Federal Government, and that the Supreme
Court of the United States the tribunal Of that
| other party. The concurrence, then, of a greater
number than bare majority of that tribunal, will
tend to produce greater spirit of acquiescence 70
quiet heart-burnings, and thus add a strong cement
to that Union which we all desire to be indissoluh-
| and perpetual.
| Nor is the selection of the number five at all an
arbitrary one as might possibly at the first view be
supposed. The Constitution of the United States.
in several instances, where the subject isimpoant,
requires the of twO-hirds of the body
called upon to act in relation to it. Thus, an
amendment to itself cannot even be originated with
out the concurrent vote of two-thirds of both Hon.
ses OF Congress, OF the application of twothirds Of
the several States. Thus too, treaty cannot be
ratified without the coDcurring vote of wothirdsof
the Senators present. But there is another proys.
ion Of that instrument which bears much closer an.
alogy to the present question, because it has refer
ence TO judicial tribunal it is that which declares,
that in case of impeachment, person shall be con.
lvicted without the concurrence of twothrds of The
members of the Senate present. 1t will at once be
seen by the House, that the number five is as near
may be to that proportion of the whole Court.
Il Nor can the Committee perceive any ell-found
ed objection to the requisiton of more than bare
majority because they hold il to be sound prnci
pie, that the successive appreciation of the Convex
ton or Legislature of State, and then of its hgb
est judicial tribunal, ought at least, to prevent
the notification of constitution or law in every
case of doubtful character, and indeed in every case
E in which its incompatibty with the supreme law
was not clear, beyond any rational doubt and inca
ses of this latter class. it can scarcely be doubted
but that five of the Judges would perceive that ill.,
compatibility, and, perceiving it, declare it by Their
decision. Upon the whole view of the subject, the
Committee are OF opinion that it is but reasonable
e-guard to the reserved rights of the States pro-
vide that they shall not be declared to have passed
beyond them, without the concurrence of five judges
of that Government, whose own tribunal is deciding
upon Its own powers and in conformity with the:s
views, they herewith report bill