[265] 1 Stat. 73, 81.
[266] Cr. 137, 175-180.
[267] Ibid. 180. The opinion in Marbury v. Madison is subject to two valid criticisms. In the first place the construction of the 13th Section of the Judiciary Act, if not erroneous, was unnecessary since the section could have been interpreted, as it afterward was, merely to give the Court the power to issue mandamus and other writs when it had jurisdiction but not for the purpose of acquiring jurisdiction. The exclusive interpretation of the Court's original jurisdiction, sometimes made a subject of criticism, had been adopted by the Court in Wiscart v. Dauchy, 3 Dall. 321 (1796), and while couched in terms which had later to be qualified in Cohens v. Virginia, 6 Wheat. 264, 398-402 (1821), by Marshall himself, has remained the doctrine of the Court. Secondly, there was good ground for Jefferson's criticism, which did not touch the constitutional features of the decision, but did inveigh against the temerity of the Court in passing on the merits of a case of which, by its own admission, it had no jurisdiction.
[268] In this connection Justice Patterson's jury charge in Van Horne's Lessee v. Dorrance, 2 Dall. 304, 308 (1795), is of significance for its discussion of the relation of the Constitution, the legislature and the courts. A constitution, he said, "is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it." Legislatures are the creatures of the Constitution to which they owe their existence and powers, and in case of conflict between a legislative act and the Constitution it is the duty of the courts to hold it void. In accordance with these doctrines fortified by natural law concepts, the circuit court invalidated a Pennsylvania statute as being in conflict with the federal and State Constitutions as a violation of the inalienable rights of property. In 1799 the federal circuit court in North Carolina, over which Chief Justice Marshall presided, invalidated an act of North Carolina as a violation of the contract clause and the separation of powers in Ogden v. Witherspoon, 18 Fed. Cas. No. 10,461 (1802). The reliance on general principles and natural rights continued in Fletcher v. Peck, 6 Cr. 87, 139 (1810) where the Supreme Court invalidated an act of the Georgia legislature revoking an earlier land grant as a violation either of the "general principles which are common to our free institutions," or of the contract clause.
[269] This phase of judicial review is described by Justice Sutherland as follows: "From the authority to ascertain and determine the law in a given case, there necessarily results, in case of conflict, the duty to declare and enforce the rule of the supreme law and reject that of an inferior act of legislation which, transcending the Constitution, is of no effect and binding on no one. This is not the exercise of a substantive power to review and nullify acts of Congress, for no such substantive power exists. It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law." Adkins v. Children's Hospital, 261 U.S. 525, 544 (1923). In United States v. Butler, 297 U.S. 1, 62 (1936), Justice Roberts for the Court reduced judicial review to very simple terms when he declared that when an act is challenged as being unconstitutional, "the judicial branch of the Government has only one duty,—to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former."
[270] Note, for example, the following statement of Chief Justice Marshall: "Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing." Osborn v. Bank of United States, 9 Wheat. 738, 866 (1824). Note also the assertion of Justice Roberts: "All the court does, can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the Constitution; and, having done that, its duty ends." United States v. Butler, 297 U.S. 1, 62-63 (1936).
[271] Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345 (1892).
[272] Ibid. See also Muskrat v. United States, 219 U.S. 346 (1911); Massachusetts v. Mellon, 262 U.S. 447 (1923); Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945); United Public Workers of America v. Mitchell, 330 U.S. 75 (1947); Fleming v. Rhodes, 331 U.S. 100, 104 (1947)
[273] Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 568-575 (1947). See also Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129 (1946); Spector Motor Service v. McLaughlin, 323 U.S. 101, 105 (1944); Coffman v. Breeze Corporations, 323 U.S. 316, 324-325 (1945); Carter v. Carter Coal Co., 298 U.S. 238, 325 (1936); Siler v. L. & N.R. Co., 213 U.S. 175, 191 (1909); Berea College v. Kentucky, 211 U.S. 45, 53 (1908); and the cases cited in the [notes] to the preceding paragraph.
[274] 331 U.S. 549, 571 (1947).