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The Supreme Court and its Slanderers Island. This decision brought on a sharp conflict and discussion between the court and the legislature, but the people generally approved the action of the court, and the legislature finally yielded, although they afterwards elected other judges. The decision, however, was not reversed, and was well known and discussed by the framers in the con vention at Philadelphia. In addition to the above well-known cases, similar rulings had been made before the framing of the constitution in the states of Virginia, North Caro lina, Massachusetts, and even in Penn sylvania. In the latter state, a court of the state had in effect held an act of Congress void. Later the federal courts in effect reversed that ruling, upholding the law of Congress as superior to the law of the state. By reference to the proceedings of the convention itself it will be found that Mr. Gerry on June 4th, expressly stated in the convention that the courts would have a sufficient check against encroachments from the other depart ments by their power of construing the laws which involved a power of decid ing on their constitutionality, saying: "In some states the judges had actually set aside laws as being against the Con stitution. This was done, too, with general approbation." Later, July 17th, Mr. Madison dis tinctly referred to the case of Trevett v. Weeden. As late as August 27th there was no objection to adopting the judicial clause of the constitution as written. On that subject Brinton Coxe says: As will be seen further on, there was no oppo sition on August 27th to organizing the judicial power of the United States, so that the Supreme Court could judicially decide acts of Congress to be unconstitutional, and hold them therefore void.


In addition, it is well known that the friends and enemies of the Con stitution, in submitting it to the people for adoption or rejection, agreed that there existed in the judiciary the power to declare acts of Congress void. Hence the Constitution was adopted with that express understanding. This is clearly shown in the articles in the Federalist. The Federalist says: If it be said that the legislative body are them selves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other depart ments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. The interpreta tion of the laws is the proper and peculiar prov ince of the courts. A constitution is, in fact, and must be regarded by the judges, as a fun damental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legisla tive body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means sup pose a superiority of the judicial to the legis lative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its stat utes, stands in opposition to that of the people declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. It is thus clearly demonstrated that the people of the United States adopted