Does the power reside in the States? Has the legislature of a State a right to declare an act of Congress void? This would be erring upon the opposite extreme. It would be placing the general government at the feet of the State governments. It would be allowing one member of the Union to control all the rest. It would inevitably lead to civil dissension and a dissolution of the general government. Will it be pretended that the State courts have the exclusive right of deciding upon the validity of our laws?
I admit they have the right to declare an act of Congress void. But this right they enjoy in practice, and it ever essentially must exist, subject to the revision and control of the courts of the United States. If the State courts definitely possessed the right of declaring the invalidity of the laws of this government, it would bring us in subjection to the States. The judges of those courts, being bound by the laws of the State, if a State declared an act of Congress unconstitutional, the law of the State would oblige its courts to determine the law invalid. This principle would also destroy the uniformity of obligation upon all the States, which should attend every law of this government. If a law were declared void in one State, it would exempt the citizens of that State from its operation, whilst obedience was yielded to it in the other States. I go further, and say, if the States or State courts had a final power of annulling the acts of this government, its miserable and precarious existence would not be worth the trouble of a moment to preserve. It would endure but a short time, as a subject of derision, and, wasting into an empty shadow, would quickly vanish from our sight.
Let me now ask, if the power to decide upon the validity of our laws resides with the people. Gentlemen cannot deny this right to the people. I admit they possess it. But if, at the same time, it does not belong to the courts of the United States, where does it lead the people? It leads them to the gallows. Let us suppose that Congress, forgetful of the limits of their authority, pass an unconstitutional law. They lay a direct tax upon one State and impose none upon the others. The people of the State taxed contest the validity of the law. They forcibly resist its execution. They are brought by the executive authority before the courts upon charges of treason. The law is unconstitutional, the people have done right, but the court are bound by the law, and obliged to pronounce upon them the sentence which it inflicts. Deny to the courts of the United States the power of judging upon the constitutionality of our laws, and it is vain to talk of its existing elsewhere. The infractors of the laws are brought before these courts, and if the courts are implicitly bound, the invalidity of the laws can be no defense. There is, however, Mr. Chairman, still a stronger ground of argument upon this subject. I shall select one or two cases to illustrate it. Congress are prohibited from passing a bill of attainder; it is also declared in the constitution, that "no attainder of treason shall work corruption of blood or forfeiture, except during the life of the party attainted." Let us suppose that Congress pass a bill of attainder, or they enact, that any one attainted of treason shall forfeit, to the use of the United States, all the estate which he held in any lands or tenements.
The party attainted is seized and brought before a federal court, and an award of execution passed against him. He opens the constitution and points to this line, "no bill of attainder or ex post facto law shall be passed." The attorney for the United States reads the bill of attainder.
The courts are bound to decide, but they have only the alternative of pronouncing the law or the constitution invalid. It is left to them only to say that the law vacates the constitution, or the constitution voids the law. So, in the other case stated, the heir after the death of his ancestor, brings his ejectment in one of the courts of the United States to recover his inheritance. The law by which it is confiscated is shown. The constitution gave no power to pass such a law. On the contrary, it expressly denied it to the government. The title of the heir is rested on the constitution, the title of the government on the law. The effect of one destroys the effect of the other; the court must determine which is effectual.
There are many other cases, Mr. Chairman, of a similar nature to which I might allude. There is the case of the privilege of habeas corpus, which cannot be suspended but in times of rebellion or invasion. Suppose a law prohibiting the issue of the writ at a moment of profound peace! If, in such case, the writ were demanded of a court, could they say, it is true the legislature were restrained from passing the law suspending the privilege of this writ, at such a time as that which now exists, but their mighty power has broken the bonds of the constitution, and fettered the authority of the court? I am not, sir, disposed to vaunt, but standing on this ground, I throw the gauntlet to any champion upon the other side. I call upon them to maintain, that, in a collision between a law and the constitution, the judges are bound to support the law, and annul the constitution. Can the gentlemen relieve themselves from this dilemma? Will they say, though a judge has no power to pronounce a law void, he has a power to declare the constitution invalid?
The doctrine for which I am contending, is not only clearly inferable from the plain language of the constitution, but by law has been expressly declared and established in practice since the existence of the government.
The second section of the third article of the constitution expressly extends the judicial power to all cases arising under the constitution, laws, etc. The provision in the second clause of the sixth article leaves nothing to doubt. "This constitution and the laws of the United States, which shall be made in pursuance thereof etc., shall be the supreme law of the land." The constitution is absolutely the supreme law. Not so the acts of the legislature! Such only are the law of the land as are made in pursuance of the constitution.
I beg the indulgence of the committee one moment, while I read the following provision from the twenty-fifth section of the judicial act of the year 1789: "A final judgment or decree in any suit in the highest court of law or equity of a state, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity, etc., may be re-examined and reversed or affirmed in the Supreme Court of the United States, upon a writ of error." Thus, as early as the year 1789, among the first acts of the government, the legislature explicitly recognized the right of a State court to declare a treaty, a statute, and an authority exercised under the United States, void, subject to the revision of the Supreme Court of the United States; and it has expressly given the final power to the Supreme Court to affirm a judgment which is against the validity, either of a treaty, statute, or an authority of the government.
I humbly trust, Mr. Chairman, that I have given abundant proofs from the nature of our government, from the language of the constitution, and from legislative acknowledgment, that the judges of our courts have the power to judge and determine upon the constitutionality of our laws.