The daily Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1841-1845, 1844-03-25

4 Constellation, certainly ~ not Tess authority
than The Federaiist itself" Cohens Us. the
State of Virginia. This act gave TO the Su-
preme Court power TO issue Wits oil Mandilus
as an original writ. There had been an execu-
tive sanction and judicial practice upon the
point, ever since the establishment oil the Gov
eminent; the practice had been UNIVERSAL unit
| FORM and unqueslioned. Yet IN case oil pc
| culiar decacy, unsolicited and undsked, the
| Supreme Court did think II necessary TO pause
and hesitate, and 10 enter, Of its oun accord
upon the examination Of the question, how lar
this Legislative and Executive exposition, and
Judicial practice under it, and of uniform, uni
versal acquiescence of the whole country was
in conformity TO the Constitution, and felt bound
| in support Of the Constitution of the United
States 10 determine and settle, in the most au-
thoritative mannorthe question Whether an
act repugnant to the Constitution can become
the law Of the land z"
| Cranch l76. Marbury Us Madison, Feb, 1903
4" The question, whether act repugnant to the
. Constitution can BECOME the law Of the land, is
question deeply interesting to the United States :
but happily, not OF an intrcacy proportioned to its
interest 1t seems only necessary to recognize GER
tain principles, supposed TO have been long and well
| established, to decide it,
THAT the people have an original right to
establish for their future government, such
principles as in their opinion shall most
conduce to their own happiness, is the basis
on which the whole American fabric has been
| erected The exercise of this original right is a
very great exertion, it, nor ought il TO be
frequently repeated. The principles, therefore,
| established, deemed fundamental and as the
authority from which they proceed is supreme, and
can seldom act, they are designed to be perma-
| nent.
"Ihis original and supreme toiH organizes the Gov
ernnent and assigns 10 different departments their re-
peetire o,oers. 1t may either stop here, establish
certain limits not 10 be ranscended by those depart
mens The Government Of the United States is of the
latter description. The powers of the Legislature
are defined and limited, and that those limits may not
be mistaken or forgotten, TIE Constitution is writ
ten To what purpose are powers limited and
to what purpose is that limitation committed to
writing If these limits may at any time be passed
by those intended to be restrained The distinction
between government with limited and unlimited
powers, is abolished, if those limits do not confne
the persons on whom they are imposed, and if acts
prohibited and acts allowed of equal obligation.
IL Is a position too plain TO be contested that the
Constitution controls any Legislative repugnant to
II, or that the Legislature may alter the Censtitu-
| ton by an ordinary act
Between these alternatives there is no middle
ground. The Constitution is either SUPERIOR par.
amount law, Interchangeable by ordinary means, or it
Is on level with ordinary Legislative acts and like
other acts Is alterable when the Legislature shall
| please to alter IT..
"a the former part of the alternative be true then
Legislative act contrary TO the Constitution is not
law If the latter part be true then writ en- Cons-
tutions are absurd attempts the part OF the Peo
| PIE 10 limit power IN It's own nature imitable.
| Certainly all those who have framed written Cons-
tutions contemplated them forming the fundamen-
tai and paramount law of the nation and, conse.
If nepfu
be- that an act Of the Legislature repugnant 10 the
| Constitution is void. This theory is essentially at
tached to a written Constitution, and is consequent
ly to be considered by this court of the fun
damentai principles OF our society Ii u.s. therefore,
MT to be lost sight of in the further consideration
OF this subject. II act of the Legislature repug.
nan' to the Constitution is void does it, notwth.
standing It's invadity, bind the courts, and oblige
them TO give 1t elect Or, IN other words, does it
i constitute rule as operative as If il a law ,
This would be to overthrow, in fact, what was
tabshed IN theory, ahd would seem, al first view
an ads"duy too gross 10 be insisted on 1t shall, how
Il ever, receive a more attentive consideration
\ at IS emphatcally the province and duty of the
Il Judicial Department to say what the law is Those
who apply the rule TO particular cases must Of
cessity eIPound and interpret that rule. If two
laws conflict with each other, the courts must de-
eide on the operation Of CHI So if law be in
opposition TO the Constitution if both the law and
the Constitution apply 10 particular case, that
the court must either decide that coniormably
TO the law disregarding the Constitution or coner-
4 msble TO the Constitution, disregardng the law
the court must determine which Of these conflicting
rules governs the case. This Is the very essence Of
Judicial duty IT, then the courts are TO regard the
Cons hutton, and the Constitution is superior to any
act OF he Legislature, the Constitution, and not
such ordinary act must govern the case 10 which
they both apply
"Those then, who conroyert the principle that the
Constitution is TO be considered in court, as a par
amount law, are reduced TO the necessity Of main
tanning that courts close their eyes on the Cons-
tuiion, and see only the lac.
This doctrine would subyert the very foundation
oil all written Constitutions 1t would declare that
an nei rhieh, according TO the principles and theory
OF our Government, IS entirely poid vet in practice
completely obligatory II would declare that # the
Legislature shall do what is expressly forbidden,
such act, notwithstanding the express prob bition
is in reality efectual. II would be giving to the
Legislature practical and real omnipotence with
the same breath which processes to restrict their
powers within narrow limits. is prescribing linn
ITS, and declaring that those limits may Be passed plea
g sure.
THAT 1t thus reduces TO nothing what we have
deemed the greatest improvement on political insiifu-
tions-a written Constitution would Of itself he suf
hcient, In America where written Constitutions
have been viewed with much reverence for re.
jecting the construction But the peculiar expires.
sons Of the Constitution Of the United States fur.
nish additional arguments in favor Of ito rejection.
The judicial power is extended 10 all cases ari-
sing under the Constitution Could it be the inten
ton OF those who gave this power to say that in
using IT, the Constitution should not be looked into
That a arising under the Constitution should
be decided without examining the instrument under
which II arises This Is too extravsgant TO be
maintained. In some cases, then, the Constitution
? must be looked into by the Judges. And II they
can open at ALL what part Of it are they forbidden
TO read or 10 obey
There are many other parts Of the Constitution
which serve TO illustrate this subject II is declared
that no bill Of attainder post facto law shall
be passed" II, however, such a bill should be
passed, and person prosecut d under il, must the
court condemn to death those victims whom the
4 Constitution endeavors TO preserve mo person