No words in the Constitution gave the Judiciary the power to annul legislation. The subject had been discussed in the Convention, but the brief and scattering debate had arisen upon the proposition to make the President and Justices of the Supreme Court members of a Council of Revision with power to negative acts of Congress. No direct resolution was ever offered to the effect that the Judiciary should be given power to declare acts of Congress unconstitutional. In the discussion of the proposed Council of Revision there were sharp differences of opinion on the collateral question of the right and wisdom of judicial control of legislative acts.[334] But, in the end, nothing was done and the whole subject was dropped.
Such was the record of the Constitutional Convention when, by his opinion in Marbury vs. Madison, Marshall made the principle of judicial supremacy over legislation as much a part of our fundamental law as if the Constitution contained these specific words: the Supreme Court shall have the power to declare invalid any act of Congress which, in the opinion of the court, is unconstitutional.
In establishing this principle Marshall was to contribute nothing new to the thought upon the subject. All the arguments on both sides of the question had been made over and over again since the Kentucky and Virginia Resolutions had startled the land, and had been freshly stated in the Judiciary debate in the preceding Congress. Members of the Federalist majority in most of the State Legislatures had expressed, in highly colored partisan rhetoric, every sound reason for the theory that the National Judiciary should be the ultimate interpreter of the Constitution. Both Federalist and Republican newspapers had printed scores of essays for and against that doctrine.
In the Virginia Convention of 1788 Marshall had announced as a fundamental principle that if Congress should pass an unconstitutional law the courts would declare it void,[335] and in his reply to the address of the majority of the Virginia Legislature[336] he had elaborately, though with much caution and some mistiness, set forth his views.[337] Chief Justice Jay and his associates had complained that the Judiciary Act of 1789 was unconstitutional, but they had not had the courage to announce that opinion from the Bench.[338] Justices Iredell and Paterson, sitting as circuit judges, had claimed for the National Judiciary the exclusive right to determine the constitutionality of laws. Chief Justice Jay in charging a grand jury, and Associate Justice Wilson in a carefully prepared law lecture, had announced the same conclusion.
Various State judges of the Federalist faith, among them Dana of Massachusetts and Addison of Pennsylvania, had spoken to like effect. At the trial of Callender[339] Marshall had heard Chase deliver the opinion that the National Judiciary had the exclusive power to declare acts of Congress unconstitutional.[340] Jefferson himself had written Meusnier, the year before the National Constitution was framed, that the Virginia Legislature had passed unconstitutional laws,[341] adding: "I have not heard that in the other states they have ever infringed their constitution; ... as the judges would consider any law as void which was contrary to the constitution."[342]
Just as Jefferson, in writing the Declaration of Independence, put on paper not a single new or original idea, but merely set down in clear and compact form what had been said many times before,[343] so Marshall, in his opinion in Marbury vs. Madison, did nothing more than restate that which had previously been declared by hundreds of men. Thomas Jefferson and John Marshall as private citizens in Charlottesville and Richmond might have written Declarations and Opinions all their lives, and to-day none but the curious student would know that such men had ever lived. It was the authoritative position which these two great Americans happened to occupy and the compelling emergency for the announcement of the principles they expressed, as well as the soundness of those principles, that have given immortality to their enunciations.
Learned men have made exhaustive research for legal decisions by which Marshall's footsteps may have been guided, or which, at least, would justify his conclusion in Marbury vs. Madison.[344] The cases thus discovered are curious and interesting, but it is probable that Marshall had not heard of many of them. At any rate, he does not cite one of them in the course of this opinion, although no case ever was decided in which a judge needed so much the support of judicial precedents. Neither did he know anything whatever of what was said on the subject in the Constitutional Convention, unless by hearsay, for its sessions were secret[345] and the Journals were not made public until 1819—thirty years after the Government was established, and sixteen years after Marbury vs. Madison was decided.[346] Nor was Marshall informed of the discussions of the subject in the State Conventions that ratified the Constitution, except of those that took place in the Virginia Convention.[347]
On the other hand, he surely had read the Judiciary debate in Congress, for he was in the Capital when that controversy took place and the speeches were fully reported in the Washington press. Marshall probably was present in the Senate and the House when the most notable arguments were made.[348] More important, however, than written decisions or printed debates in influencing Marshall's mind was The Federalist, which we know he read carefully. In number seventy-eight of that work, Hamilton stated the principle of judicial supremacy which Marshall whole-heartedly adopted in Marbury vs. Madison.
"The interpretation of the laws," wrote Hamilton, "is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, ... the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."[349]
In this passage Hamilton merely stated the general understanding of nearly all the important framers of the Constitution. Beyond question, Marshall considered that principle to have been woven into the very fiber of the Nation's fundamental law.