Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol I).djvu/387

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CH. IV.]

FINAL INTERPRETER.

347

remedy, however, in such cases is solely by an appeal to the people at the elections; or by the salutary power of amendment, provided by the constitution itself.^[1]

§ 375. But, where the question is of a different nature, and capable of judicial inquiry and decision, there it admits of a very different consideration. The decision then made, whether in favour, or against the constitutionality of the act, by the state, or by the national authority, by the legislature, or by the executive, being capable, in its own nature, of being brought to the test of the constitution, is subject to judicial revision. It is in such cases, as we conceive, that there is a final and common arbiter provided by the constitution itself, to whose decisions all others are subordinate; and that arbiter is the supreme judicial authority of the courts of the Union.^[2]

§ 376. Let us examine the grounds, on which this doctrine is maintained. The constitution declares, (Art. 6,) that "This constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties, &c. shall be the supreme law of the

↑ The Federalist, No. 44.—Mr. Madison, in the Virginia Report of Jan. 1800, has gone into a consideration of this point, and very properly suggested, that there maybe infractions of the constitution not within the reach of the judicial power, or capable of remedial redress through the instrumentality of courts of law. But we cannot agree with him, that in such cases, each state may take the construction of the constitution into its own hands, and decide for itself in the last resort; much less, that in a case of judicial cognizance, the decision is not binding on the states. See Report, p. 6, 7, 8, 9.
↑ Dane's App. § 44, 45, p. 52 to 59.—It affords me very sincere gratification to quote the following passage from the learned Commentaries of Mr. Chancellor Kent, than whom very few judges in our country are more profoundly versed in constitutional law. After enumerating the judicial powers in the constitution, he proceeds to observe: "The propriety and fitness of these judicial powers seem

[1] The Federalist, No. 44.—Mr. Madison, in the Virginia Report of Jan. 1800, has gone into a consideration of this point, and very properly suggested, that there maybe infractions of the constitution not within the reach of the judicial power, or capable of remedial redress through the instrumentality of courts of law. But we cannot agree with him, that in such cases, each state may take the construction of the constitution into its own hands, and decide for itself in the last resort; much less, that in a case of judicial cognizance, the decision is not binding on the states. See Report, p. 6, 7, 8, 9.

[s375n1-2] Dane's App. § 44, 45, p. 52 to 59.—It affords me very sincere gratification to quote the following passage from the learned Commentaries of Mr. Chancellor Kent, than whom very few judges in our country are more profoundly versed in constitutional law. After enumerating the judicial powers in the constitution, he proceeds to observe: "The propriety and fitness of these judicial powers seem

[1]

[2]