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Constitution provides that the judge shall hold his office during good behavior, that does not prevent abolition of his office, where the office is unnecessary.” Breckinridge was among the few who explicitly denied the power of the courts to check the legislature. “I would ask," said he, “where they get the power and who checks the courts when they violate the Constitution? I deny the power. If it is derived from the Constitution, I ask the gentleman to point out the clause which grants it." Gouverneur Morris, who expressed in the Federal Convention his conviction that the judges should have such a power, answering Breckinridge, said:

They derive this authority from a power higher than the constitution. ... The judges must declare what the law is. The decision of the Supreme Court is and of necessity must be final. Otherwise the moment the legislature declare themselves supreme, they become so. . . . The sovereignty of America will no longer reside in the people, but in Congress, and the constitution is whatever they choose to make it.

needed. The Constitution intends that all the judicial power shall actually be vested. This was the view of Marshall, Story, and Webster and was, I think, accepted until the decision in McCardle's case. Nor has Congress the power seriously to infringe upon the appellate jurisdiction of the Supreme Court. Although that instrument says that the appellate jurisdiction is subject to such exceptions as Congress may make, the power to make exceptions was never intended to permit Congress to destroy all the appellate jurisdiction of the Court or make any substantial encroachments upon it. This, too, was the view of Marshall, Webster, and Story,


To the evidence already marshalled to show that judicial control rests, not upon inference, but upon the express text of the Constitution, and that it was consciously and intentionally bestowed upon the courts by the Convention, there may well be added, because of its importance, the testimony of Daniel Webster. Webster was five years of age when the Convention that framed the Constitution of the United States met at Philadelphia. He grew up in association with men who had fought in the Revolution and devise the present government. He was nearer the English Revolution of 1688 than are we to the Philadelphia Convention of 1787. He knew intimately the work of Hamilton, Madison, Jefferson, Adams, and their contemporaries. He was steeped in the history of the formative days of the Republic. He had seen thirteen colonies expand into thirty states under the influence of a government whose institutions he had profoundly studied. He venerated the Revolutionary patriots and loved the Union with an enthusiasm that was a passion, and next to Marshall upon the bench at Washington did more than any other statesman of the first sixty years of this nation to expound and interpret the Constitution.

Webster's views are lucidly set forth in the Reply to Hayne in the Senate of the United States, January 26 and 27, 1830, in his speech in the Senate February 16, 1833, in reply to Calhoun, in which Webster contended that the Constitution was not a compact between sovereign states, and in his address at a dinner given in his honor in the City of New York, March 10, 1831.

Hayne, as is well known, had set up the standard of nullification. South Carolina repudiated the tariff law of the United States, and, following in the lead of the Virginia and Kentucky resolutions, behind which were the shades of Jefferson and Madison, maintained her right to treat this legislation as void. The occasion called for a crushing answer to this fallacy, and Webster made it. He conclusively showed the utter powerlessness of a government which lay at the mercy of thirteen or twenty-four legislatures. He explained the true nature of the government created under the Constitution. It was a government of limited powers. There were restrictions upon Congress, and there were also prohibitions upon the States. Some authority must exist with ultimate jurisdiction to fix and ascertain the interpretation of all grants, restrictions, and prohibitions.

Who she asked] shall construe this grant of the people? Who shall interpret their will where it may be supposed they have left it doubtful? With whom do they repose this ultimate right of deciding on the powers of the government? Sir, they have settled all this in the fullest manner.

The Constitution has itself pointed out, ordained, and established that authority. How has it accomplished this great and essential end? By declaring, Sir, that "the Constitution, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding."


This, Sir, was the first great step. By this the supremacy of the Constitution and laws of the United States is declared. The people so will it. No State law is to be valid which comes in conflict with the Constitution, or any law of the United States passed in pursuance of it. But who shall decide this question of interference? To whom lies the last appeal? This, Sir, the Constitution itself decides also, by declaring, "that the judicial power shall extend to all cases arising under the Constitution and laws of the United States." These two provisions cover the whole ground. They are, in truth, the keystone of the arch! With these it is a government; without them it is a confederation. . . . Here,

.. [he said in conclusion) is a law which is declared to be supreme; and here is a power established which is to interpret that law.

Calhoun, in the Senate, in February, 1833, had argued that the political system established by the Constitution was a compact to which the people of the several States, as separate and sovereign communities, were parties, with the consequence that each of these sovereign parties had the right to judge for itself of any alleged violation of the Constitution by Congress. Webster repelled this idea with all the vigor and eloquence at his command. He elaborated his argument in the Reply to Hayne. He showed that the people, that is the people of all the then existing States, had ordained the Constitution as the fundamental law, that the States, as States, had not entered into a constitution, but that it was the people's Constitution, and that the instrument

created direct relations between the new government and individuals. Upon the subject of the judicial power he said:

But, Sir, let us go to the actual formation of the Constitution; let us open the journal of the Convention itself, and we shall see that the very first resolution which the Convention adopted was, “THAT A NATIONAL GOVERNMENT OUGHT TO BE ESTABLISHED, CONSISTING OF A SUPREME LEGISLATURE, JUDICIARY, AND EXECUTIVE."

The object was to supersede the Confederation by a regular government acting directly on individuals. Allow me,” said Webster, “to quote but one or two proofs out of hundreds." Connecticut had sent to the General Convention Samuel Johnson and Oliver Ellsworth. They were also members of the ratifying convention in Connecticut.

On the first day of the debates, being called on to explain the reasons which led the Convention at Philadelphia to recommend such a Constitution, after showing the insufficiency of the existing confederacy, inasmuch as it applied to States, as States, Mr. Johnson proceeded to say:

“The Convention saw this imperfection in attempting to legislate for States in their political capacity, that the coercion of law can be exercised by nothing but a military force. They have, therefore, gone upon entirely new ground. They have formed one new nation out of the individual States. The Constitution vests in the general legislature a power to make laws in matters of national concern; to appoint judges to decide upon these laws; and to appoint officers to carry them into execution. This

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