The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1844-03-26

N0n Me FederdttH usey." C0hens -. the
State of Virginia. This act gave to the Su-
preme Court power to issue wIits of Mandamus
as an original writ. There had been an execu-
tive sanction and judicial practice upon the
the practice had been universal. uni
form, aud unques,ioned- Yet in a case of Pc
caliar delicacy, unsolicited and unasked, the
Supreme Court did think it necessary to pause
and hesitate, and 10 enter, of its own accord,
upon the examination VI the question, how far
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 to determine, and settle, 10 the most au-
mannerthe question: ''Whether an
act repugnant to the Constitution can become
the law Of the land2"
Cranch l76 Msrbury rs Madison, Feb, 1903.
" The question, whether an act repugnant 10 the
Constitution BECOME the law of the land, is a
question deeply interesting TO the United States
but happily, not Of an intricacy proportional to it's
interest 1t seems only necessary to recognize cer-
established, to decide it. !.
That the people have an original right to
establish, for their future government, such
principles a in their opinion shall most
co0duce to their own happiness, is tho basis
on which the whole American fabric has been
erected. The exercise of this original right is a
very great oxertion, nor can it, nor ought It to be
frequently repeated. The principles therefore, so
established, are deemed fundamental, and as the
authority from which they proceed is supreme, and
can seldom act, they arc designed to be perma-
9 nent
"TAis original and supreme oiu orras;zs, the Cor
er''nen9 and assigns to different departments their re-
speef,ve potoers 1t may either stop here or establish
certain limits not to be tronsce<d by those depart-
mems 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
DC mistaken or forgotten TIE Constitution is writ
ten. 10 what purpose are powers are limited and
10 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 aud unlimited
powers, Is abolished, if those limits do not confne
me persons on whom they are imposed, and if acts
prohibited and acts allowed are of equal obligation
It is position too plain to be contested that the
Cos luton controls any Legislative act repugmdnt to
w. or that the Legislature may alter the Constitu-
ton by an ordinary act.
'B,tween these alternatives there is no middle
ground Inc Constitution is either superior, par
amount law, Interchangeable by ordinary means or il
Is on level with ordinary Legislative acts and like
other acts Is alterabe when the Legislature shall
please to alter it.
III the former part of the alternative be true then
legislative act contrary to the Constitution is not
law II the latter part be true then written Consti-
tutions are absurd attempts on the part of the PEG.
pie to limit power in its own nature ilmitable,
certainly all those who have framed written Consti-
tutions contemplated them forming the fundamen-
tai and paramount law of the nation and, conse-
quently, the theory of every such government must
De, that an act OF the Legislature repugnant 10 the
Constitution is void. This theory is essentially At.
tached to written Constitution, and is consequent
to be considered by this court us one of the fun
damental principles of our society 1t is therefore
not to be lost sight of in the further consideration
OF this subject If an act Of the Legislature repue.
nan' 10 the Constitution is void does it. notwith.
standing its invalidity, bind the courts, and obiee
them to give it effect. Or, in other words does il
: constitute rule as operative as if il was law
inns would be to overthrow, in fact, what was es-
taolshed IN theory, aid would SEEM at first view,
an ae'~dy 100 gross to Be insised II SHALL how
ever, receive moro attentive considerstion.
1T Is emphaticalIy the province and duty of the
Judicial Department to .ay what the law i. Those
who apply the rule to particular cases. must Of ne
cessy expound and interpret that rulc If two
laws conflict with each other the courts must de-
eide on the operation Of each. So il law be in
opposition to the Constitution if both the law and
the Constitution apply particular case SO that
the court must either decide that case conformaby
TO the law, dsregardng the Constitution or confer
maoIe TO the Constitution, disregarding the law
the court must determine which of these confictn g
rules governs the This is the very essence OF
Judicial duty II, them the courts are to regard the
Constitution, and the Constitution is superior to any
act of The Legislature, tho Constitution, and no,
such ordinary act, must govern the case to which
they both apply.
Those then, who conrovert the principle that the
Constitution Is to be considered, in court as par
amount law, are reduced to the necessity of main.
tanning that courts close their cues on The Consti
futon, and see only the la,c
This doctrine would subvert the very foundation
oil all written Constitutions. 1t would declare that
an oet ohioh, according TO the principles and theory
OF our Government, entirely poid yet in praetic,
completely obligatory. 1t would declare that if the
Legislature shall do what 10 expressly forbidden
such act, notwithstanding tho express prohibition
IS in reality efectual. 1t would be giving to the
Legislature practical and real omnipotence, with
the same breath which processes to restrict thei
powers within narrow limits II is prescribing lin,
ITS, and declaring that those limits may be passed plea
sure.
"That il thus reduces to nothing what we have
deemed the greatest improvement political insiiiu
tions--a rren Constitution, would of itself he sui
'hcient, IN America, where written Constitution.
have been viewed with 80 much reverence, for re
Jecting the construction. But the peculiar xpres
sons Of the Constitution of the United States fur
nish additional arguments in favor of its rejection
The Judicial power is extended to all cases ari
sing under the Constitution. Could il be the inten
ton OF those who gave this power to say that in
using II, the Constitution should not be looked into
That case arising under the Constitution should
be decided without examining the instrument under
which II arises This is too extravagant to bs
maintained. In some cases, them the Constitution
must be looked into by the Judges. And if they
can open at ALL what part of it they forbidden
to read or to obeyi
There are many other parts Of the Constitution
which serve to illustrate this subject 1t is declared
that no bill OF attaiDder or eK post facto law sba
be passed" ii, however, such bill should be
passed, and person PROSECUTED under it, must the
court condemn to death those victims whom the
Constitution epdeavors to preservei No person,
says the Constitution, shall be convicted OF trea-
son, unless on the testimony Of two witnesses TO the