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in the judiciary. It is the weakest of all the departments. “ It has neither the purse nor the sword.” The legislature not only holds the key to the treasury, but prescribes the civic rights of every citizen. The executive has the power of patronage and can intrench himself behind an army of place hunters. · But the judiciary can take the initiative in nothing. It can act only, when it is called upon in the regular course of justice. “ It has neither force nor will, and must ultimately depend on the executive arm even for the efficacy of its judgments.” 1
The only power possessed by the judges is that which they have gained by their learning and integrity. Should they at any time lose the respect and confidence of the people, their decisions would be as if written on empty air. They are selected from the fittest characters in the country. They have spent their lives in the attainment of a high degree of technical skill. No office in the gift of the people is higher prized by the American lawyer than a seat on the Supreme bench of his country. To accept it with its inadequate salary many leave behind the honors and emoluments of a large practice at the sacrifice of their private fortunes. To such men what could be higher esteemed than the respect of their constituents? The eye of every lawyer at the bar is upon them. Their opinions are scanned by a thousand penetrating eyes almost as soon as they are rendered. Any sophistry would be instantly detected. They know they cannot deceive their colleagues at the bar by false reasoning or strained constructions. A continued course of judicial misfeasance would bring swift and certain retribution. They would be derided by the bar and hissed by the public until they could bear their infamy no longer and, ashamed, would not have the temerity to don their robes of office. Were there no other check on the court an enlightened public opinion would still be a sufficient safeguard against judicial tyranny. But should this influence fail and the judiciary become venal, there still remains the power of impeachment, which, happily, it has never been, and, it is hoped, never will be, necessary to enforce.
So, then, if the framers of the government meant to intrust the Supreme Court with the exposition of the constitution, it need
i Federalist, No. 78.
little be feared that the judges will abuse their trust. Within the constitution itself are the evidences that it was intended the court should have this power and that it be not hampered in exercising it. Every precaution was taken to secure the independence of the judges of the other departments. The appointment of the judges was given to the President by and with the advice of the Senate. That they might not be biased by a disposition to curry favor with the executive or the Senate, for reappointment, they were given a term during good behavior; that they might not be influenced by the power of the legislature to take away their means of subsistence, it was provided that their salary should not be diminished during their term of office2
In searching for the intent of the constitution makers, there could be no better guide than the utterances of those patriots who drafted it. The debates in the convention of 1787 on the very question under discussion are meager, but on various occasions the relationship of the judiciary to the legislature was given the fullest discussion. An examination of these debates discloses that the constant fear of the delegates was that the legislature would have too much power and the judiciary too little. The eighth resolve of Randolph's sketch provided for a council of revision, to be composed of the executive and the judiciary with power to revise all laws before they became operative and giving it a qualified veto power. On June 4, 1787, the measure was discussed in committee of the whole. Elbridge Gerry opposed the plan saying “ he doubts whether the judiciary ought to form a part of it, as they will have a sufficient check against encroachments on their own department by
exposition of the laws which involved a power of deciding on their constitutionality. In some States the judges had actually set aside laws as being against the constitution and this too with the general approbation of the people.”
Rufus King favored the plan, but James Wilson thought it did not go far enough. He was for giving the judges and the
executive an absolute negative on the legislature. The plan was rejected.
On June 6, James Wilson moved a reconsideration with the amendment that the council of revision have an absolute veto power. Madison seconded, saying: “ It would better enable the judiciary to defend itself against legislative encroachments.
The utility of annexing the weight and wisdom of the judiciary to the executive seemed incontestible.” 1 After some further debate the plan was again rejected as involving an improper mixture of powers.
The friends of the plan were persistent, however, and on July 21, James Wilson again moved reconsideration. He thought the ordinary power of the judiciary to declare void legislative acts inadequate. He believed that notwithstanding an act were strictly constitutional, if it were harsh, unjust or oppressive, the revisionary council should have the power of negativing it absolutely. Madison championed the plan with all the logic he could command. He thought it “ an additional check against & pursuit of those unjust and unwise measures which constituted so great a portion of our calamities.
* It was much to be apprehended that notwithstanding the co-operation of the two departments, the legislature would still be an overmatch for them."
In all the arguments against the plan not a voice was raised gainsaying the right of the judiciary to declare void an unconstitutional act of Congress. Indeed, it seems to have been assumed that this power was in the court. This is well illustrated by the remarks of Luther Martin 3 in opposition to the plan. He said: “As to the constitutionality of laws that will come before the judges in their official character. In this character they have a negative on the laws. Join them with the executive in the revision and they will have a double negative. Could there have been a more explicit recognition of the court's power to set aside unconstitutional acts of Congress than this?
Great stress has been laid“ on a remark made by Madison 5 in the debate of August 27, opposing the insertion of the words
1 Ibid. 164. % Joid. 344. 3 Ibid. 346.
4 Sylvester Pepnoyer in American Law Review, Vol. XXIX, No.4, p. 555.
5 Vide Elliott's Debates, 483.
"the constitution ” in the sentence giving jurisdiction to the court " in cases arising under the constitution, the laws of the United States, etc., Madison saying: “ It was going too far to extend the jurisdiction of the courts generally to cases arising under the constitution; and that it ought to be limited to cases of a judiciary nature.” On a vote being taken the words were allowed to stand as they were “it being generally understood that the jurisdiction given was constructively limited to cases of a judiciary nature.” This throws little light on the question. That Madison could not have intended to take away the power of the court to declare void an act of Congress regularly brought before it for violation of the constitution is shown by his vigorous advocacy of the plan to give the judiciary and the President an absolute veto on the legislature. Although he at various times discussed this question before the convention he had never questioned the court's power in this respect. Now what are cases of a judiciary nature?” Is there any magic in these words which excludes the idea that the judges could declare void an unconstitutional act when it came before them in their ordinary judiciary capacity? The court has never claimed jurisdiction in any but " cases of a judiciary nature.” Indeed it has again and again expressly disclaimed it. It has never acted except on a case made. It refuses to pass on the policy of laws. Chief Justice Marshall who is now so singularly accused of having been the chief instrumentality in effecting this “grab of jurisdiction,' went so far as respectfully to decline to give an opinion requested from him by President Washington involving the construction of a treaty with France.2
One writer 3 insists that the words “ of a judiciary nature must have been used in derogation of the power, because the "jurisdiction referred to was that of the common law and “6 at that time no common law court in Christendom considered its jurisdiction broad enough to nullify the law of the legislature.”
In this he is certainly in error. This giving of judicial power in the last resort to a distinct body of men independent of the legislature with powers to set aside acts in excess of its powers, is a copy of the constitutions of New Hampshire, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Massachusetts, South Carolina, and Georgia, as they existed long before the convention of 1787.1 There is then no mystery about this feature of the Supreme Court's jurisdiction; it was no innovation; it had been tried in the States and found successful; and it is therefore no violent assumption to say that the framers of this government meant to perpetuate it.
This question then was not a new one when Chief Justice Marshall in two of his greatest opinions gave it its judicial exposition in Cohens v. Virginia and Marbury v. Madison. It had been regarded as settled long before those decisions were made. It was fully canvassed in the State conventions to which the constitution was submitted for ratification. Mr. Ellsworth, a delegate to the constitutional convention, said in the Connecticut convention: “ If the United States go beyond their power and make a law which the constitution does not authorize, it is void; and the judicial power, the national judges, who to secure their independence are to be made independent, will declare it void.” Similar utterances were made in the Pennsylvania convention by James Wilson; in the New York convention by Alexander Hamilton; by James Madison, and by John Marshall, afterward Chief Justice, in the Virginia convention.
The question also received thorough treatment in the Federalist. In a paper which has been ascribed to Hamilton it is said: “ The complete independence of the courts of justice is peculiarly essential to a limited constitution. By a limited constitution I understand one which contains certain exceptions to the legislative authority,- such, for instance, as that it shall pass no bills of attainder, no ex post faclo laws and the like, limitations of this kind can be preserved in practice in no other way than through the medium of the courts of justice, whose duty
i Federalist, No. 81; Bryce American Commonwealth, I., 250.
? 6 Wheat. 264, 1 Cranch, 137.
8 Elliott's Debates, Vol. II., 432, 489; Vol. III., 532, 553.