If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity,
bind the courts, and oblige them to give it effect? Or, in other words, though it be not law,
does it constitute a rule as operative as if it was a law? This would be to overthrow, in fact, what was
established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall,
however, receive a more attentive consideration.
It is, emphatically, the province and duty of the judicial department, to say what the law is. Those who
apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict
with each other, the courts must decide on the operation of each. So, if a law be in opposition to the
constitution; if both the law and the constitution apply to a particular case, so that the court must
either decide that case, conformable to the law, disregarding the constitution; or conformable to the
constitution, disregarding the law; the court must determine which of these conflicting rules governs
the case; this is the very essence of judicial duty. If then, the courts are to regard the constitution,
and the constitution is superior to any ordinary act of the legislature, the constitution, and not such
ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle, that the constitution is to be considered, in court, as a paramount
law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution,
and see only the law. This doctrine would subvert the very foundation of all written constitutions. It
would declare that an act which, according to the principles and theory of our government, is entirely
void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what
is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It
would be giving to the legislature a practical and real omnipotence, with the same breath which professes
to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits
may be passed at pleasure. That it thus reduces to nothing, what we have deemed the greatest improvement
on political institutions, a written constitution, would, of itself, be sufficient, in America, where
written constitutions have been viewed with so much reverence, for rejecting the construction. But the
peculiar expressions of the constitution of the United States furnish additional arguments in favor of
its rejection. The judicial power of the United States is extended to all cases arising under the constitution.
Could it be the intention of those who gave this power, to say that in using it, the constitution should
not be looked into? That a case arising under the constitution should be decided, without examining the
instrument under which it arises? This is too extravagant to be maintained. In some cases, then, the constitution
must be looked into by the judges. And if they can open it at all, what part of it are they forbidden
to read or to obey?
There are many other parts of the constitution which serve to illustrate this subject. . . .
The constitution declares ‘that no bill of attainder or ex post facto law shall be passed.’ If,
however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn
to death those victims whom the constitution endeavors to preserve?
‘No person,’ says the constitution, ‘shall be convicted of treason, unless on the testimony of two witnesses
to the same overt act, or on confession in open court.’ Here, the language of the constitution
is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be
departed from. If the legislature should change that rule, and declare one witness, or a confession out
of court, sufficient for conviction, must the constitutional principle yield to the legislative act?
From these, and many other selections which might be made, it is apparent, that the framers of the constitution
contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why
otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial
manner, to their conduct in their official character. How immoral to impose it on them, if they were to
be used as the instruments, and the knowing instruments, for violating what they swear to support!
The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion
on this subject. It is in these words: ‘I do solemnly swear, that I will administer justice, without respect
to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially
discharge all the duties incumbent on me as––––, according to the best of my abilities and understanding,
agreeably to the constitution and laws of the United States.’ Why does a judge swear to discharge his
duties agreeably to the Constitution of the United States, if that constitution forms no rule for his
government? if it is closed upon him, and cannot be inspected by him? If such be the real state of things,
this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the
land, the constitution itself is first mentioned; and not the laws of the United States, generally, but
those only which shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the
principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution
is void; and that courts, as well as other departments, are bound by that instrument.
The rule must be discharged.
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