The question whether an act, repugnant [_opposed_] to the
Constitution, can become the law of the land is a question deeply
interesting to the United States but, happily, not of an intricacy
proportioned to its interest. It seems only necessary to recognize
certain principles, supposed to have been long and well established,
to decide it.
That the people have an original right to establish, for their future
government, such principles as, in their opinion, shall most conduce
to their own happiness is the basis on which the whole American fabric
has been erected. The exercise of this original right is a very great
exertion; nor can it, nor ought it, to be frequently repeated. The
principles, therefore, so established are deemed fundamental. And as
the authority from which they proceed is supreme, and can seldom act,
they are designed to be permanent.
This original and supreme will organizes the government and assigns to
different departments their respective powers. It may either stop here
or establish certain limits not to be transcended by those
departments.
The government of the United States is of the latter description. The
powers of the legislature are defined and limited; and that those
limits may not be mistaken or forgotten, the Constitution is written.
To what purpose are powers limited, and to what purpose is that
limitation committed to writing, if these limits may, at any time, be
passed by those intended to be restrained? The distinction between a
government with limited and unlimited powers is abolished if those
limits do not confine the persons on whom they are imposed, and if
acts prohibited and acts allowed are of equal obligation. It is a
proposition too plain to be contested that the Constitution controls
any legislative act repugnant to it or that the legislature may alter
the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution
is either a superior paramount law, unchangeable by ordinary means, or
it is on a level with ordinary legislative acts and, like other acts,
is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act
contrary to the Constitution is not law; if the latter part be true,
then written constitutions are absurd attempts, on the part of the
people, to limit a power in its own nature illimitable.
Certainly, all those who have framed written constitutions contemplate
them as forming the fundamental and paramount law of the nation, and,
consequently, the theory of every such government must be, that an act
of the legislature repugnant to the Constitution is void.
Marshall goes on to refute the argument that the Supreme Court should
concern itself only with interpreting the law, regardless of the
Constitution. Then he quotes specific passages from the Constitution:
It is declared that “no tax or duty shall be laid on articles exported
from any state.” Suppose a duty on the export of cotton, of tobacco,
or of flour; and a suit instituted to recover it. Ought judgment to be
rendered in such a case? Ought the judges to close their eyes on the
Constitution and only see the law?...
“No person,” says the Constitution, “shall be convicted of treason,
unless on the testimony of two witnesses to the same _overt_ act, or
on confession in open court.” Here the language of the Constitution is
addressed especially to the courts. It prescribes directly for them, a
rule of evidence not to be departed from. If the legislature should
change that rule and declare one witness, or a confession out of
court, sufficient for conviction, must the constitutional principle
yield to the legislative act?
From these, and many other selections which might be made, it is
apparent that the framers of the Constitution contemplated that
instrument as a rule for the government of _courts_ as well as of the
legislature.
Why otherwise does it direct the judges to take an oath to support it?
This oath certainly applies in an especial manner to their conduct in
their official character. How immoral to impose it on them if they
were to be used as the instruments, and the knowing instruments, for
violating what they swear to support!
At the end of the decision the Chief Justice concluded that the language
of the Constitution confirmed and strengthened the principle essential
to all written constitutions “that a law repugnant to the Constitution
is void.”