It was early in Marshall’s day that the Supreme Court first took the grave step of disregarding an act of Congress,—a coördinate department,—which conflicted with the National Constitution. The right to deal thus with their legislatures had already been asserted in the States, and once or twice it had really been exercised. Had the question related to a conflict between that Constitution and the enactment of a State, it would have been a simpler matter. These two questions, under European written constitutions, are regarded as different ones. It is almost necessary to the working of a federal system that the general government, and each of its departments, should be free to disregard acts of any department of the local states which may be inconsistent with the federal constitution. And so in Switzerland and Germany the federal courts thus treat local enactments. But there is not under any written constitution in Europe a country where a court deals in this way with the act of its coördinate legislature. In Germany, at one time, this was done, under the influence of a study of our law, but it was soon abandoned.[21]
In the colonial period, while we were dependencies of Great Britain, our legislation was subject to the terms of the royal charters. Enactments were often disallowed by the English Privy Council, sometimes acting as mere revisers of the colonial legislation, and sometimes as appellate judicial tribunals. Our people were, in this way, familiar with the theory of a dependent legislature, one whose action was subject to reversal by judicial authority, as contrary to the terms of a written charter of government.
When, therefore, after the war of independence, our new sovereign, namely, ourselves, the people, came to substitute for the old royal charters the people’s charters, what we call our “constitutions,”—it was natural to expect some legal restraint upon legislation. It was not always found in terms; indeed, it was at first hardly ever, if at all, found set down in words. But it was a natural and just interpretation of these instruments, made in regions with such a history as ours and growing out of the midst of such ideas and such an experience, to think that courts, in the regular exercise of their functions, that is to say, in dealing with litigated cases, could treat the constitutions as law to be applied by them in determining the validity of legislation.
But this, although, as we may well think, a sound conclusion, was not a necessary one; and it was long denied by able statesmen, judges, and lawyers. An elaborate and powerful dissenting opinion by Chief Justice Gibson, of Pennsylvania, containing the most searching argument on the subject with which I am acquainted, given in 1825,[22] reaches the result that under no constitution where the power to set aside legislative enactments is not expressly given, does it exist. But it is recognized that in the Federal Constitution the power is given, as regards legislation of the States inconsistent with the Federal Constitution and laws.
It is not always noticed that in making our Federal Constitution, there was an avoidance of any explicit declaration of such a power as touching federal legislation, while it was carefully provided for as regards the States. In the Federal Convention, there was great anxiety to control the States, in certain particulars; and various plans were put forward, such as that Congress should have a negative on state laws, and that governors of the States should be appointed by the federal authority, with power to negative state acts.
But all these, at last, were rejected, and the matter took the shape of a provision that the Constitution and the constitutional laws and treaties of the United States should be the supreme law of the respective States; and the judges of the several States should be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. Later, the Committee on Style changed the phrase “law of the respective States” to “law of the land.” But the language, as to binding the judges, was still limited to the judges of the several States. Observe, then, the scope of this provision: it was to secure the authority of the federal system within the States.
As to any method of protecting the federal system within its own household, that is to say, as against Congress, it was proposed in the convention, for one thing, that each House of Congress might call upon the judges for opinions; and, again, it was urged, and that repeatedly and with great persistence, that the judges should be joined with the executive in passing on the approval or disapproval of legislative acts,—in what we call the veto power. It was explicitly said, in objecting to this, that the judges would have the right to disregard unconstitutional laws anyway,—an opinion put forward by some of the weightiest members. Yet some denied it. And we observe that the power was not expressly given. When we find such a power expressly denied, and yet not expressly given; and when we observe, for example, that leading public men, e.g., so conspicuous a member of the convention as Charles Pinckney of South Carolina, afterwards a senator from that State, wholly denied the power ten years later;[23] it being also true that he and others of his way of thinking urged the express restraints on state legislation,—we may justly reach the conclusion that this question, while not overlooked, was intentionally left untouched. Like the question of the bank and various others, presumably it was so left in order not to stir up enemies to the new instrument; left to be settled by the silent determinations of time, or by later discussion.
Turning now to the actual practice under the government of the United States, we find that the judges of the Supreme Court had hardly taken their seats, at the beginning of the government, when Chief Justice Jay and several other judges, in 1790, communicated to the President objections to the Judiciary Act, as violating the Constitution, in naming the judges of the Supreme Court to be judges also of the circuit courts.[24] These judges, however, did not refuse to act under this unconstitutional statute; and the question did not come judicially before the court until Marshall’s time, in 1803,[25] when it was held that the question must now be regarded as settled in favor of the statute, by reason of acquiescence since the beginning of the government.[26]
In observing, historically, the earlier conceptions of the judges of the Supreme Court as to the method of dealing with unconstitutional legislation, one or two other transactions should be looked at. In 1792 (1 U. S. Statutes, 243) a statute was enacted which required the circuit court, partly composed, as we have seen, of the judges of the Supreme Court, to pass on the claims of certain soldiers and others demanding pensions, and to report to the Secretary of War; who was, in turn, to revise these returns and report to Congress. The judges found great difficulty in acting under this statute, because it imposed on them duties not judicial in their nature; and they expressed their views in various ways.