454
THE GREEN BAG
To the getting of such a ratification for any conclusion of our Federal Supreme Court it is manifestly necessary that its determination be not generally regarded as an exercise of usurped power. If the charge of usurpation is not well founded, and the intention, on the part of the mem bers of the federal convention who pro posed, and of the state convention which adopted, the Constitution, and of their con stituents who put it in practice, to confer this power upon the court can be clearly shown, it ought to be done. It is necessary, also, to meet this new discussion because it takes somewhat differ ent ground from that where Marshall, in Marbury v. Madison, following the;8th paper of the Federalist, put the question. The present discussion, as embodied by Judge Clark and Professor Trickett, assails Marshall's and Hamilton's assumption that written constitutions are laws, supreme laws, and therefore, of course, to be recog nized as such by the courts where they are involved in the determination of private rights of genuine litigants. The constitu tions purport to be laws; the judges swear to maintain and support them, and of course must give effect to them in their judgments when private rights under them are asserted. This "simple and severe line of argument," as Professor Thayer called it, had prevailed in all the states where the question had arisen before 1788, is used by Hamilton in the Federalist, controlled the intervening decisions till applied by Mar shall in Marbury v. Madison, and has uni versally prevailed ever since throughout this country. Not so, however, in other countries, except as they have imitated us. Of course, as Marshall pointed out in Marbury v. Madison, the Federal Constitu tion does declare that it and laws and treaties made in pursuance of it "shall be the supreme law of the land and the judges in every state shall be bound thereby, anything in the laws or constitution of any state to the contrary notwithstanding." This, says
Marshall, expressly includes the Constitu tion and mentions it first among laws, and by another clause, jurisdiction is extended to all cases arising under it. His claim, that this does give express authority to the judges to apply the Constitution to acts of Congress, when it is involved in one of the "cases," is seldom much discussed by his opponents and not at all by the recent ones. The other ground, however, for the as sumption that American constitutions are law for the courts as well as political rules for the guidance of legislatures and peoples, namely, that such a character is inseparable from written constitutions, must be given up. Too many such constitutions are now in the world which claim no such legal character, which are wholly political, and upon which the courts predicate no action. So far as the argument of Marshall is drawn from the nature of written constitutions, it is now recognized as question begging. Evidently, to admit that the courts get their powers from the constitutions, and then in addition that the Constitution is silent as to the power, is to concede the power away, as Chief Justice Gibson showed in 1827, in Eakin v. Raub, 128. R. 330. Gibson just as definitely begs the question on the other side by assuming that only a definite and express bestowal of such a power in unequivocal terms could convey it; and that we must refuse to admit the possibility of its being conveyed by merely establishing courts, authorizing them to pass upon claims of private right, and then enacting constitutional provisions expressly for the protection of such rights against the legislature. It is by no means surprising, in view of the fact that the early state constitutions were made during the attempt of the colonies to assert rights against the legislation of the Imperial Parliament; and the Federal Constitution so quickly followed that struggle that Gibson's assumption has never been accepted by professional opinion in this country, nor by unprofes sional opinion except when smarting under
