UNCONSTITUTIONAL LAWS pecially able to point out to our modern jurists the difference between a direct voice in all legislation by sharing the executive veto, and merely passing upon the conform ity of such legislation to the Constitution, •when a claim of private right brings up the question. Madison himself, finally, brought up the same proposition for the fourth time on Aug. r$th merely adding the proportion of members of each house who should be required to pass legislation over such veto. All the states but Maryland, Delaware, and Virginia voted against it though Gouverneur Morris earnestly supported it. How Mr. Trickett can claim Morris for a dis believer in the court's power to hold laws void if contrary- to the Constitution is hard to see in view of this debate, "He could not agree that the Judiciary should be bound to say that a direct violation of the Constitution was law," p. 538. Dickinson thinks, indeed, that no such power "ought to exist" but was "at the same time at a loss what expedient to substitute," p. 538. Pinckney opposed the proposition because "it will involve them in parties (i.e., the judges) and give a pre vious tincture to their opinions." Mercer "heartily approved the motion." He "dis approved that the judges as expositors of the Constitution should have authority to declare a law void; laws ought to be well and cautiously made and then uncontrol lable." Was this thing that he heartily approved the same that he disapproved? Do his efforts to arrange things so that the laws should be "well made and then uncon trollable" indicate that he thought them uncontrollable as they were? Docs Dickin son's dislike of this power and anxiety to "substitute" something else for it indicate a doubt of its existence? No judicial function was in question in this discussion and it is clear that it was so understood, and that Sec. 8 of Randolph's proposals was rejected for that reason. All parties assume that the Constitution is
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to be law and applied as such by the courts. Neither those who wanted more power for the judges, nor those who feared what they had, questioned their right and duty to apply the Constitution as supreme law. Madison urged a people's ratification for the Constitution in order to make it a "law" and not a "treaty," precisely in order for the courts to enforce it. "A law violating a constitution established by the people themselves would be considered by the judges null and void." Doc. Hist. Ill, 411, As Patterson said, by the People's ratifica tion it would become "legally paramount." Id. 156. Wilson's opinion as clearly appears in the debates of the Convention when he was urging this proposition for a council of revi sion to include the Judges, Doc. Hist. Ill, p. 390, as it does from his lectures of 1792. WTorks, vol. i, p. 189. On the former occa sion he wanted his council of revision among other reasons, because, "The Judges a"s expositors of the law would have • an opportunity of defending their constitutional rights. But this power of the Judges did not go far enough. Laws may be unjust, unwise and dangerous; and yet may not be so unconstitutional as to justify the Judges in refusing to carry them into effect. Let them have a share in the revisionary power, etc." Hamilton apparently did not touch upon this subject in the Convention; but he did in recommending its work to the people for adoption, in the 78th paper of the Federalist, where he anticipated almost completely the argument of Marbury v. Madison. Only one statement from the Federalist needs to be cited now, and that merely because no one dreamed of disputing it then. "A constitution is in fact and must be regarded by the judges as a fundamental lau'." Lodge Edition, p. 485. There was no seeking on his part to cajole people with the idea of adopting a body of political maxims.
