The assumption of this power in the Court to declare statutes unconstitutional has been bitterly assailed, and is still denounced in some quarters, as judicial usurpation originated by John Marshall.
On the historical side this objection is not well founded. Various state courts had exercised the power to declare statutes unconstitutional before the Supreme Court came into existence.[1] The framers of the Constitution clearly intended that such a power should be exercised by the Supreme Court.[2] Moreover, a somewhat similar power appears to have been exercised long before in England,[3] though it gave place later to the present doctrine of the legal omnipotence of Parliament.
[Footnote 1: See Bryce: "The American Commonwealth," Vol. I, p. 250.]
[Footnote 2: See e.g., "Federalist," No. LXXVIII.]
[Footnote 3: See opinion of Lord Coke in Bonham's Case, 8 Coke's
Reports, 118, decided in 1610.]
On the side of reason and logic, the argument in favor of the power formulated more than a century ago by Chief Justice Marshall has never been adequately answered and is generally accepted as final. He said:[1]
The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?… The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act, contrary to the Constitution, is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.
[Footnote 1: Marbury v. Madison, 1 Cranch, 176.]
It would seem at first blush that the power in the Court to declare legislative acts unconstitutional affords a complete safeguard against congressional encroachment on the prerogatives of the states. Such is not the fact, however. The veto power of the Court by no means covers the entire field of legislative activity. In the Convention which framed the Constitution, attempts were made to give to the judiciary, in conjunction with the executive, complete power of revision over legislative acts, but all such propositions were voted down.[1] As matters stand, there may be violations of the Constitution by Congress (or for that matter by the executive) of which the Court can take no cognizance.
[Footnote 1: See e.g., Farrand: "Records of the Federal Convention,"
Vol. I, pp. 138 et seq.; Vol. II, p. 298.]