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are established for different purposes, and with different powers. Between those powers questions may arise; and who shall decide them? Some provision for this end is absolutely necessary. What shall it be? This was the question before the Convention; and various schemes were suggested. It was foreseen that the States might inadvertently pass laws inconsistent with the Constitution of the United States, or with acts of Congress. At least, laws might be passed which would be charged with such inconsistency. How should these questions be disposed of? Where shall the power of judging, in cases of alleged interference, be lodged? . It was thought wiser and

er, on the whole, to require State legislatures and State judges to take an oath to support the Constitution of the United States, and then leave the States at liberty to pass whatever laws they pleased, and if interference, in point of fact, should arise, to refer the question to judicial decision. To this end, the judicial power, under the Constitution of the United States, was made coextensive with the legislative power. It was extended to all cases arising under the Constitution and the laws of Congress. The judiciary became thus possessed of the authority of deciding, in the last resort, in all cases of alleged interference between State laws and the Constitution and laws of Congress.

There can be no uncertainty what would be Webster's attitude were he alive to-day.


There is an interesting coincidence of opinion between Webster and Chief Justice John B. Gibson, of Pennsylvania, commonly regarded as one of the ablest men who ever sat upon the bench of that State, a bench renowned for the brilliancy and ability of its judges. This coincidence has enhanced interest because, in the judgment of some writers, the opinion of Judge Gibson in the case of Eakin v. Raub, decided in 1825, contains a formidable argument against the right of the State judiciary to annul laws of the commonwealth. It has been declared to be a most convincing, in fact quite unanswerable, argument against the existence as well as against the expediency of the power of the judiciary to review legislation under any circumstances. I Those who appeal to it as a most convincing argument against judicial control may well be asked whether that portion of it which deals with the power of the Federal judiciary must not be accepted as convincing. In contrasting the functions of State and Federal judges, Chief Justice Gibson said:


But in regard to an act of assembly, which is found to be in collision with the Constitution, or treaties of the United States, I take the duty of the judiciary to be exactly the reverse. By becoming parties to the Federal Constitution, the States have agreed to several limitations of their individual sovereignty, to enforce which, it was thought to be absolutely necessary to prevent them from giving effect to laws in violation of those limitations, through the instrumentality of their own judges. Accordingly, it is declared in the sixth article and second section of the Federal Constitution, that “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby; anything in the laws or Constitution of any State to the contrary notwithstanding."

1 "Government by Judiciary," L. B. Boudin, Political Science Quarterly, xxvi., 258.

This is an express grant of a political power and it is conclusive to show that no law of inferior obligation, as every State law must necessarily be, can be executed at the expense of the Constitution, laws, or treaties of the United States.

And he concludes:

Unless, then, the respective States are not bound by the engagement, which they have contracted by becoming parties to the Constitution of the United States, they are precluded from denying either the right or the duty of their judges, to declare their laws void when they are repugnant to that Constitution.

The learned Justice was dealing only with the powers of State tribunals. The power of the Supreme Court of the United States is an inevitable corollary, for that Court is expressly made the final authority, and upon writ of error to the State court must either affirm or reverse the decision of the State tribunal, and in doing so must necessarily declare the State law harmonious with or repugnant to the Federal Constitution. So far as Judge Gibson's reasoning extends, it squares completely with Webster's. Webster goes farther and shows the intent of the makers of the Constitution, as construed by their words and by the language of the instrument, to give Federal courts like authority over unconstitutional acts of Congress.

None of Judge Gibson's successors seems to have gone so far as to deny in toto the right of the State judiciary to override unconstitutional laws. In one of the leading cases in the State of Pennsylvania,' decided in 1853, in which a series of able opinions was delivered, Chief Justice Jeremiah S. Black, whose authority as a constitutional lawyer will be generally conceded, acknowledged that a power resided in the judiciary to annul legislation, but it was a power with limitations. To make the law void "it must be clearly not an exercise of legislative authority, or else be forbidden so plainly, as to leave the case free from all doubt." It was not the principle, but an unwarrantable extension of it against which Judge Black revolted. The Court had been asked, as he said, to hold a law, though not prohibited, “void if it violates the spirit of our institutions, or impairs any of those rights which it is the object of a free government to protect, and to declare it unconstitutional if it be wrong and unjust. But we cannot do this." The rule that should govern the judiciary forbade it to declare an act of assembly void save where “it violates the constitution clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation in our minds." These words recognize the power of the Court, while they restrict it within its appropriate boundaries. Such a decision cannot be cited as proof that the courts possess no power whatever over unconstitutional legislation.

It will, I think, be found that in most if not all the later decisions, both State and Federal, questioning

Sharpless v. The Mayor, 21 Penn. State, 147.


the extent of judicial power, the controversy was not whether the courts could set aside a law plainly and palpably unconstitutional, but whether they could do so because they deemed the law opposed to the spirit pervading the Constitution, or to the fundamental rights of property or to principles of justice. Such a power, as Mr. Justice Clifford of the United States Supreme Court well said, “is denied to the courts, because to concede it would be to make the courts sovereign over both the Constitution and the people, and convert the government into a judicial despotism."

No one has stated the true boundaries of the power in better phrase than did Iredell while sitting as Justice of the Supreme Court of the United States, in the case of Calder v. Bull, decided in 1798.' Although loyal to his earlier convictions as to the right of the judiciary to set aside laws in conflict with the Constitution, he nevertheless refused assent to the doctrine that "a legislative act against natural justice must in itself be void.” An act of Congress or of the legislature of a State that distinctly violates constitutional provisions is, said he, unquestionably void. The frontier line of clear power was thus marked by him:


As the authority to declare it (a legislative act] void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case. If, on the other hand, the legislature of the Union, or the legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the court cannot

13 Dallas, 386.

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