John Marshall and the Constitution, a Chronicle of the Supreme CourtCorwin, Edward Samuel
History
John Marshall and the Constitution, a Chronicle of the Supreme Court
Corwin, Edward Samuel
Constitutional history -- United States; Marshall, John, 1755-1835; United States. Supreme Court
[However, there are those who maintain] 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.
[Moreover,] 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.... "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? ...
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.
There is not a false step in Marshall's argument. It is, for instance,
not contended that the language of the Constitution establishes judicial
review but only that it "confirms and strengthens the principle."
Granting the finality of judicial decisions and that they may not be
validly disturbed by legislative enactment, the argument is logically
conclusive, whatever practical difficulties it may ignore.
Public-domain text, read in full here on John Shaqi.
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