A Century of Federal Judicature. he took his seat, Marshall, for the first and only time during his long service, adjudged an act of a coordinate department of the Fed eral government null and void. His method of reaching this momentous conclusion de serves careful consideration. "The powers of the Legislature,'1 he says, "are defined and limited: and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers lim ited, 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 distinction between a gov ernment with limited and unlimited powers «is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. . . . 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 alterna tive is true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are ab surd attempts, on the part of the people, to limit a power in its own nature illimitable. . . . If an act of the Legislature repug nant to the Constitution is void, does it, not withstanding its invalidity, bind the courts, and oblige them to give it effect? This would be to overthrow in fact what was established in theory. . . . It is emphati cally the province and duty of the judicial de partment to say what the law is. ... If a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, dis regarding the Constitution, or conformably to the Constitution, disregarding the hw— the court must determine which of these con flicting rules govern the case. This is of the very essence of judicial duty."
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This summary disposition of the issue, however admirable in itself, hardly met the requirements of the occasion. So far as it applied to the entirely different question of state legislation inconsistent with the Federal Constitution and laws, it is conclusive. The Constitution expressly provides that the laws and treaties of the United States shall foe the supreme law of the land, anything in the con stitution or laws of any state to the contrary notwithstanding. Yet, in his subsequent con sideration of the relation between the Fed eral government and the States, and of the specific restraints upon the States, he devel oped the subject with an elaboration and completeness which constitute his chief title to fame. The grave step of disregarding an act of the Federal Congress was a far more novel and difficult problem, deserving the exercise of the highest powers of his mind. But his conclusion that the Supreme Court is the arbiter' of the validity of the acts of a coordinate department of the general gov ernment, however firmly established now, was really an assumption, not a demonstra tion. The real question at issue was, as Pro fessor Thayer says, not whether the act was constitutional, but whether its constitution ality could properly be brought in question before a given tribunal. Chief Justice Gibson, of Pennsylvania, who discussed this question in 1825, in Eakin i Raub, 12 Sergeant & Rawle. 330, with an ability and acuteness commensurate to its importance, reached the conclusion that the power to set aside legis lative enactments of a coordinate depart ment of government exists only when it is expressly conferred, and it is to be observed that this power is not expressly given by the Federal Constitution. It was not overlooked by the founders, for it was 'both asserted and denied in the discussions of the Constitutional Convention of 1789; it must have been delib erately left open for subsequent determina tion. To Marshall the nation is undoubtedly indebted for its wise and momentous solu-
