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were to be called on to disregard all state acts contrary to the law of the land. Had the convention, instead of finding this admirable idea, bestowed on the central authority the right to veto laws, untold friction would have resulted; it is difficult to see how the Constitution could have lasted a decade.

The Constitution was to be binding as law on state officers and to be applied by state judges; it was likewise, of course, to bind the central government in all of its branches. If the national government overstepped its authority, it also should be restrained by the courts, by the refusal of judges to recognize invalid enactments or illegal official action. Concerning the advisability of establishing a federal judiciary there was from the beginning of the convention's work a general agreement;' but as to the structure and functions of the department there was much difference of opinion. Provision for the system at length reached satisfactory form; a separate and distinct department of government, one supreme court and such inferior courts as Congress might establish, the judges to hold office during good behavior, the court to have a wide jurisdiction.

Here again we must especially remark the power, the duty, of the federal courts to recognize the Constitution as law, and thus with the state courts to preserve the Constitution, to maintain the distribution of power between state and nation, and to enforce its obligations. With regard to state courts, the Constitution contented itself with saying that the Constitution as law was to be binding on state judges; in prescribing the jurisdiction of the federal courts there was in addition the statement that they were to have cognizance of cases“ arising under this Constitution.” Possibly the framers did not consciously intend by these words expressly to declare that the federal courts would have the right in all cases to declare a law of Congress void because exceeding Constitutional limits. As to that it is hard to speak with absolute assurance. Certainly the Constitution was by this clause recognized and proclaimed as law, and we may at least assert that by force of logic, if not because of the full conscious purpose of the members of the convention, this power was bestowed—the power to declare of no effect an act of Congress contrary to the law of the land.'

1 Virginia plan, in Madison, Writings (Hunt's ed.), III., 19; New Jersey plan, ibid., 169; Pinckney plan, in Amer. Hist. Re. view, IX. 745.

The delegates at Philadelphia must have known that the new state constitutions were regarded as law by the state courts. When the Federal Convention assembled, the nature of a written constitution, emanating from an authority outside the government, had already been made manifest by several judicial decisions. In New Jersey, as early as 1780, the court refused, in the case of Holmes vs. Walton, to regard as valid an unconstitutional act of the

1 Brinton Coxe, Judicial Power and Unconstitutional Legislation, especially pt. iv.

2

legislature. Two years later a similar doctrine was laid down in Virginia, and in 1786, as we have already seen, the Rhode Island court announced the same principle. Just as the convention was assembling at Philadelphia, the superior court of North Carolina distinctly asserted that the legislature could not by passing any act“ repeal or alter the constitution, because if they could do this, they would at the same instant of time, destroy their own existence as a legislature, and dissolve the government thereby established.'

The preservation of the Constitution, the maintenance of the authority, laws, and treaties of the national government, was of the deepest importance to the delegates at Philadelphia; but they did not establish a special tribunal, as a body of censors, or a special court to declare state or national acts void. All that was necessary was to see that the Constitution was made law and had the qualities of a fundamental law. It would then be the duty, not of the supreme court alone, but of all state and national courts, to recognize it as law and to apply it in controversies coming before them. This, then, was a great discovery, and not less great because it required no novel and unfamiliar machinery, no principle altogether new and strange. The courts, acting as courts have always acted in distributing justice to litigants, were to declare the law and decide cases accordingly, by the well-known methods of English and American jurisprudence; they were simply expected in all controversies to apply, when need be, the Constitution as the supreme law of the land.

1 Austin Scott, “Holmes vs. Walton," in Amer. Hist. Review, IV., 456.

* Coxe, Judicial Power, 221, 251; Thayer, Cases on Constitutional Law, pt. i., 55-80; McRee, Life and Corresp. of Iredell, II., 169, 170, 172.

CHAPTER XVI

FURTHER COMPROMISES AND THE CONCLUSION OF THE CONVENTION'S WORK

(1787)

WHILE

HILE these fundamental problems were being

settled, others scarcely less important were also discussed. Of course to determine the extent of the new government's power, or, rather, the number of its powers, occupied much time and proved a matter of difficulty. The task was “to draw a line of demarkation which would give to the General Government every power requisite for general purposes, and leave to the States every power which might be most beneficially administered by them.”ı To draw this line with accuracy was as desirable as it was difficult; on the preciseness with which the distribution was made depended, in no small degree, the permanence and effectiveness of the new order.

The resolutions on this subject, as first adopted, were general in their terms, providing that the national legislature ought to have the powers of the old Congress and the right to legislate in all cases

Madison, Letters, I., 344.

253

VOL. X.-18

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