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vania, April 27, 1906, upon the subject, "Some Defects in the Constitution of the United States," made the startling declaration that there is not a line in the Constitution, either express or implicit, to warrant the Supreme Court in assuming a power to annul acts of Congress as unconstitutional. The Constitution, he said, recited carefully and fully the matters over which the courts should have jurisdiction, and there is "nothing indicating any power to declare an act of Congress unconstitutional and void. Had the Convention given such power to the courts it certainly I would not have left its exercise final and unreviewable." Such a power, he argued, exists in no other country and never has existed. How wide these assertions are from the truth of history has in part been shown and will be made clear. The power has existed in other countries, was known even in the days of Roman jurisprudence. Vattel expounded it, and, while since the Revolution of 1688 no such judicial power is recognized in the British system, nor does it exist in the latest German Empire, Coxe and other authors have fairly demonstrated its recognition in other jurisdictions.
To say that the Convention did not discuss the question or that the Constitution is silent upon the subject is in conflict with history. It is in conflict also, as I hope to show, with the plan finally evolved by the Convention for the disposition of all controversies about State legislation which might be at war with the Constitution of the United States, or with treaties made by the government, or acts of Congress. Had the members
of the Convention been able to shut their eyes to the attempts in different States to emasculate the treaty with Great Britain, they could not have been ignorant of decisions like Trevett v. Weeden, or Bayard v. Singleton, which had convulsed the States in which these judgments were pronounced.
In a debate upon the judiciary in the Convention June 4th, Gerry said distinctly, "they [the judges] will have a sufficient check against encroachments of their own department by their exposition of the laws, which involved a power of deciding on their constitutionality. In some states the judges had actually set aside laws, as being against the constitution. This was done, too, with general approbation.
On July 17th, Madison thus referred to the case of Trevett v. Weeden:
In Rhode Island, the judges who refused to execute an unconstitutional law were displaced, and others substituted, by the legislature, who would be the willing instruments of their masters2;
and on July 23d, the same distinguished statesman in discussing the modes of ratification of the Constitution said that
he considered the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a constitution. . . . A law violating a treaty ratified by a preexisting law might be respected by the judges as a law,
though an unwise and perfidious one. A law violating a constitution established by the people themselves would be considered by the judges as null and void.1
On July 17th, in disapproving the proposed negative of a Council of Revision, Morris2 said that he was
more and more opposed to the negative. The proposal of it would disgust all states. A law that ought to be negatived will be set aside in the judiciary department, and if that security should fail, may be repealed by a national law. 3
Later in that day, Luther Martin moved a resolution which marked the initial step in the creation of section 2, Article VI., and which was unanimously adopted. This resolution was:
RESOLVED, That the legislative acts of the United States, made by virtue and in pursuance of the Articles of Union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective states, as far as those acts, or treaties, shall relate to the said states, or their citizens and inhabitants:and that the judiciaries of the several states shall be bound I Farrand, Record of the Convention, ii., 93.
2 Ex-President Roosevelt in his Life of Gouverneur Morris (p. 155), says: “On the judiciary his views were also sound. He upheld the power of the judges, and maintained that they should have absolute decision as to the constitutionality of any law. By this means he hoped to provide against the encroachments of the popular branch of the government, the one from which danger was to be feared, as 'virtuous citizens will often act as legislators in a way of which they would, as private individuals, afterwards be ashamed.'"
3 Farrand, Record of the Convention, ii., 28.
thereby in their decisions-anything in the respective laws of the individual states to the contrary notwithstanding.1
If the judiciaries of the several States were to be bound by such legislative acts in their decisions, notwithstanding contrary legislation of the State, the implication plainly is that the judiciary must pronounce the State legislation invalid.
Without further quotation of utterances of delegates importing their express intent to clothe the judiciary with this power, I now pass to consider the significance of the plans of the Convention known respectively as the Virginia and the New Jersey plans. The one had its inception in the minds of representatives of the larger States, the other in those of representatives from the smaller commonwealths. Neither of these plans
2 The sixth resolution of the Virginia plan provided that the "national legislature ought to be empowered to negative all laws passed by the several states, contravening in the opinion of the national legislature, the Articles of the Union."
The ninth resolution of the Virginia plan proposed a national judiciary of one or more supreme tribunals and of inferior tribunals to be chosen by the national legislature. The supreme tribunal was to hear in the dernier resort cases respecting "all piracies and felonies on the high seas, captures from an enemy . . and cases . . . which respect the collection of the national revenue, and questions which may involve the national peace and harmony."
In the New Jersey plan one of the resolutions was "that the Federal government of the United States ought to consist of a supreme legislative, executive, and judiciary"; and the sixth resolution, following closely the language of the resolution of the Congress of the Confederation of the preceding April, provided that all acts of the United States should be the supreme law of the respective States, and controlling upon the judiciary of the several States.
was acceptable in all respects to the Convention, and reconciliation was effected by the substitution of the Connecticut plan, which was a combination of certain elements of each, giving representation in the Senate to the States, as States, and in the lower or more popular legislative house according to population. One feature of the Randolph, or Virginia, plan proposed that the national legislature "be empowered to negative all laws passed by the legislatures of the several states contravening, in the opinion of the national legislature, the Articles of the Union. By this phrase, “Articles of the Union," the future constitution was intended.
On May 31st, two days after its presentation by Randolph, the clause was approved and enlarged so as to include a negative of State laws contravening "treaties subsisting under the authority of the Union."2 Charles Pinckney unsuccessfully moved to empower the national legislature to negative all laws which to it "shall appear improper. The line or frontier which limited the negative was shadowy and indefinite, and this led to the offer by Paterson of New Jersey of his substitute plan. While it was not adopted, the offer led to reconsideration of the proposal to give a limited negative to the national legislature, with the result that by a vote of seven States to three the Convention decided to reject it.
The whole subject was thus reopened and a new plan proposed which grew out of Luther Martin's resolution heretofore quoted. Step by step this resolution was altered; each successive step marks with increasing 2 Id., i., 47, 61.
Farrand, Record of the Convention, i. 21.