and the laws and treaties made in pursuance thereof, "shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding."[1]
So far as the grounds for this remarkable power are found in the mere fact of a constitution being in writing, or in jtudges being sworn to support it, they are quite inadequate. Neither the written form nor the oath of the judges necessarily involves the right of reversing, displacing, or disregarding any action of the legislature or the executive which these departments are constitutionally authorized to take, or the determination of those departments that they are so authorized. It is enough, in confirmation of this, to refer to the fact that other countries, as France, Germany, and Switzerland, have written constitutions, and that such a power is not recognized there. "The restrictions," says Dicey, in his admirable Law of the Constitution, "placed on the action of the legislature under the French constitution are not in reality laws, since they are not rules which in the last resort will be enforced by the courts. Their true character is that of maxims of political morality, which derive whatever strength they possess from being formally iniscribed in the constitution, and from the resulting support of public opinion."[2]
How came we then to adopt this remarkable practice? Mainly as a natural result of our political experience before,the War of Independence, — as being colonists, governed under written charters of government proceeding from the English Crown. The terms and limitations of these charters, so many written constitutions, were enforced by various means, — by forfeiture of the char-
- ↑ This opinion has fallen strangely out of sight. It has much the ablest discussion of the question which I have ever seen, not excepting the judgment of Marshall in Marbury v. Madison, which, as I venture to think, has been overpraised. Gibson afterwards accepted the generally received doctrine. "I have changed that opinion," said the Chief Justice to counsel, in Norris v. Clymer, 2 Pa. St., p. 281 (1845), "for two reasons. The late convention [apparently the one preceding the Pennsylvania constitution of 1838] by their silence sanctioned the pretensions of the courts to deal freely with the Acts of the legislature; and from experience of the necessity of the case."
- ↑ Ch. ii. p. 127, 3d ed. President Rogers, in the preface to a valuable collection of papers on the "Constitutionial History of the United States, as seen in the Development of American Law," p. II, remarks that "there is not in Europe to this day a court with authority to pass on the constitutionality of national laws. But in Germany and Switzerland, while the Federal courts cannot annul a Federal law, they may, in either counitry, declare a cantonal or State law invalid when it conflicts with the Federal law." Compare Dicey, ubi supra, and Bryce, Am. Com., i. 430, note (1st ed.), as to possible qualifications of this statement.
