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refused to send any delegates to the Philadelphia Convention. In most of these conventions the vote for ratification was, if New York be excepted, large; in some of the smaller States, it was unanimous. It must be presupposed that the members of these conventions comprehended the arguments both for and against ratification to which they listened. From these arguments it can be determined whether they had an intelligent conception of the mighty nature of the power to be lodged in the Federal judiciary. They could not of course foresee the wonderful expansion of that power, or its innumerable applications; but they did certainly perceive that it was designed to operate upon Congressional and State legislation, and that the judges were to be clothed with authority to nullify legislation that expressly contravened the new Constitution. To go farther—the people in the several States were through their conventions fully informed of the purpose of the Philadelphia Convention in framing those twin provisions of the Constitution upon which the Federal judiciary reposes.
The great arguments for ratification made in the Pennsylvania convention by James Wilson could profitably be read to-day. Wilson had been a delegate to the Convention, and was afterwards a justice of the Supreme Court of the United States. His fundamental theme was that all power emanated from the people, who had distributed it among the State governments and the government of the Union. Concerning the judicial power he said:
Under this Constitution, the legislature may be restrained, and kept within its prescribed bounds, by the interposition of the judicial department. This I hope, sir, to explain clearly and satisfactorily. I had occasion, on a former day, to state that the power of the Constitution was paramount to the power of the legislature acting under that Constitution; for it is possible that the legislature, when acting in that capacity, may transgress the bounds assigned to it, and an act may pass, in the usual mode, notwithstanding that transgression; but when it comes to be discussed before the judges,—when they consider its principles, and find it to be incompatible with the superior power of the Constitution, it is their duty to pronounce it void; and judges independent, and not obliged to look to every session for a continuance of their salaries, will behave with intrepidity, and refuse to the act the sanction of judicial authority. In the same manner, the President of the United States could shield himself, and refuse to carry into effect an act that violates the Constitution.
The article respecting the judicial department is objected to as going too far, and is supposed to carry a very indefinite meaning. Let us examine this: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution and the laws of the United States.” Controversies may certainly arise under this Constitution and the laws of the United States, and is it not proper that there should be judges to decide them? The honorable gentleman from Cumberland (Mr. Whitehill) says that laws may be made inconsistent with the Constitution; and that therefore the powers given to the judges are dangerous. For my part, Mr. President, I think the contrary inference true. If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates. Anything, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law."
Pennsylvania was the first State to hold a convention. It is well known that the debates in that body were read in other States. Wilson's sharply defined position upon the judicial power could not have been misunderstood.
In the Virginia ratifying convention no one spoke more elaborately nor opposed the judicial power more forcibly than did Patrick Henry. From his various utterances it is apparent that he keenly appreciated that the State judges could annul unconstitutional State legislation, and that like authority was to be given, with addition, to the new Federal judiciary. Henry said:
But what will the judges determine when the states and federal authority come to be contrasted? Will your liberty then be secure, when the congressional laws are declared paramount to the laws of your state, and the judges are sworn to support them?2
The honorable gentleman did our judiciary honor in saying that they had firmness to counteract the legislature in some cases. Yes sir, our judges opposed the acts of the legislature. We have this landmark to guide us. They had fortitude to declare that they were the judiciary and would
1 Elliot's Debates, ii., 445-6, 489.
oppose unconstitutional acts. Are you sure that your federal judiciary will act thus? Is that judiciary so well constructed and so independent of the other branches as our state judiciary? Where are the landmarks in this government? I will be bold to say you cannot find any in it. I take it as the highest encomium on this country that the acts of the legislature, if unconstitutional, are liable to be opposed by the judiciary."
On June 20, 1788, while the first and second sections of the third article were under consideration, Mr. Henry, following Mr. Madison, said:
In what a situation will your judges be when they are sworn to preserve the Constitution of the State, and of the general government! If there be a concurrent dispute between them, which will prevail? They cannot serve two masters struggling for the same object. The laws of Congress being paramount to those of the states, and to their constitutions also, whenever they come in competition, the judges must decide in favor of the former.
When Congress, by virtue of this sweeping clause, will organize these courts, they cannot depart from the Constitution, and their laws in opposition to the Constitution would be void. 2
Marshall, answering Henry:
With respect to its cognizance in all cases arising under the Constitution and the laws of the United States, he says that, the laws of the United States being paramount to the laws of the particular states, there is no case but what this
Patrick Henry, Life and Correspondence, iii., 517. * Id., iii., 561, 563.
will extend to. Has the government of the United States power to make laws on every subject? Does he understand it so? Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can they go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void.
Grayson, speaking upon the same theme, said:
If the Congress cannot make a law against the constitution I apprehend it cannot make a law to abridge it. The judges are to defend it.
He truthfully exclaimed 2: This court has more power than any court under heaven."
Governor Randolph, following Grayson, said:
Nothing is granted which does not belong to a federal judiciary. Self-defence is its first object. Has not the constitution said that the states shall not use such and such powers, and given exclusive powers to Congress? If the state judiciaries could make decisions conformable to the laws of their states, in derogation to the general government, I humbly apprehend that the federal government would soon be encroached upon.3
Both friends and foes of the Constitution admitted that the judiciary enjoyed the power of nullifying 1 Elliot's Debates, iii., 553. a Ibid., 564.
3 Ibid., 570.