"The will of the nation, deliberately and constitutionally expressed, must and will prevail, the predictions and exertions of federal monarchists and aristocrats to the contrary notwithstanding." (Independent Chronicle, March 10, 1803.)
Marshall's opinion was delivered February 24. It took two weeks of fast traveling to go from Washington to Boston. Ordinary mail required a few days longer. The article in the Chronicle was probably sent while Marbury vs. Madison was being argued.
[331] Dodd, in Am. Hist. Rev. xii, 776. Under the law Marshall's successor must come from Virginia or North Carolina.
[332] As President of the Court of Appeals of Virginia he later challenged Marshall and brought about the first serious conflict between the courts of a State and the supreme tribunal of the Nation; and as a pamphleteer he assailed Marshall and his principles of Nationalism with unsparing rigor. (See vol. iv, chaps. iii, and vi, of this work.)
[333] For example, in Fletcher vs. Peck, Roane would have held that the National Courts could not annul a State statute; in Martin vs. Hunter's Lessees and in Cohen vs. Virginia, that the Supreme Court could not review the judgment of a State court; in McCulloch vs. Maryland, that Congress could not exercise implied powers, but only those expressly granted by the specific terms of the Constitution, etc. All this we know positively from Roane's own writings. (See vol. iv, chaps. iii, vi, and vii, of this work.)
[334] It seems probable, however, that it was generally understood by the leading men of the Convention that the Judiciary was to exercise the power of invalidating unconstitutional acts of Congress. (See Corwin: Doctrine of Judicial Review, 10-11; Beard: Supreme Court and the Constitution, 16-18; McLaughlin: The Courts, the Constitution and Parties, 32-35.)
In the Constitutional Convention, Elbridge Gerry of Massachusetts asserted that the judicial function of expounding statutes "involved a power of deciding on their Constitutionality." (Records of the Federal Convention of 1787: Farrand, i, 97.) Rufus King of Massachusetts—later of New York—was of the same opinion. (Ib. 109.)
On the other hand, Franklin declared that "it would be improper to put it in the power of any Man to negative a Law passed by the Legislature because it would give him the controul of the Legislature." (Ib.)
Madison felt "that no Man would be so daring as to place a veto on a Law that had passed with the assent of the Legislature." (Ib.) Later in the debate, Madison modified his first opinion and declared that "a law violating a constitution established by the people themselves, would be considered by the Judges null & void." (Ib. ii, 93.)
George Mason of Virginia said that the Judiciary "could declare an unconstitutional law void.... He wished the further use to be made of the Judges of giving aid in preventing every improper law." (Ib. 78.)