¹ Another question indirectly involved, which has received much less attention than it deserves, is, What is the justification for declaring an unconstitutional law void from the beginning? To do so is logically plausible, but it is unnecessary and politically it is a most unfortunate doctrine. Its obvious result is to increase the too prevalent disrespect for the law by making every man his own judge of the validity of every new statute. The impossible results of such a doctrine, carried to its logical conclusion in a political emergency, is shown in the case of People vs. Board of Police, 19 N. Y. 188, which arose out of the action of the New York city police in deciding for themselves that a statute reorganizing the department was unconstitutional.

² Clark, W., address, Congressional Record, July 31, 1911Google Scholar; Tricket, W., “Judicial Dispensation from Congressional Statutes,” American Law Review, xii, 65Google Scholar; Boudin, L. B., “Government by Judiciary,” Political Science Quarterly, xxvi, 238Google Scholar; Roe, G., “Our Judicial Oligarchy,” La Follette's Weekly Magazine, iii, no. 25, p. 7.Google Scholar

³ C. A. Beard, The Supreme Court and the Constitution; A. C. McLaughlin, The Courts, The Constitution and Parties.

⁴ Compare the reversal of attitude of many of the States at the time of the Hartford convention of 1814.

⁵ 1 Cranch, 137.

⁶ “The president and the federal independent judges, so much concerned in the execution of the laws and in the determination of their constitutionality.” Ford's, Pamphlets, 184.Google Scholar

⁷ Ford's, Pamphlets, 183.Google Scholar

⁸ Ford's, Pamphlets, 212.Google Scholar

⁹ “If the general legislature should at any time overlap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void.” Elliot's, Debates, ii, 196.Google Scholar

¹⁰ Elliot's, Debates, i, 493.Google Scholar

¹¹ Ford's, Pamphlets, 8.Google Scholar

¹² “The judges who are bound by oath to support the Constitution, declare against this law.” Elliot's, Debates, iv. 393.Google Scholar

¹³ Writings, v, 293.

¹⁴ Farrand's, Reports, iii, 172, 220.Google Scholar

¹⁵ Farrand's, Reports, iii, 287.Google Scholar

¹⁶ Elliot's, Debates, iii, p. 479.Google Scholar

¹⁷ Ford's, Pamphlets, 331.Google Scholar

¹⁸ Rowland, K. M., Life of George Mason, ii, chap. 8.Google Scholar

¹⁹ Wharton's, State Trials, 412.Google Scholar

²⁰ Ford's, Pamphlets, 274.Google Scholar

²¹ Elliot's, Debates, iii, 121.Google Scholar

²² American State Papers, Misc. I, 23.

²³ 2 Dallas, 409.

²⁴ Blair, 1782: “The court had power to declare any resolution or act of the legislature or of either branch of it, to be unconstitutional and void.”

Hamilton, 1788: “The courts of justice whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”

King, 1787: “The judicial ought not to join in the negative of a law because the judges will have the expounding of those laws when they come before them; and they will no doubt stop the operation of such as shall appear repugnant to the Constitution.”

G. Morris, 1787: “He could not agree that the judiciary, which was a part of the executive, should be bound to say that a direct violation of the Constitution was law.”

Williamson, 1787: “Such a prohibitory clause is in the constitution of North Carolina, and, though it has been violated, it has done good there and may do good here, because the judges can take hold of it.”

Wilson, 1788: “If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges ‥‥ will declare such law to be null and void.”

²⁵ A quotation from Sherman's “Countryman” letters, printed on p. 565 indicates that he did not rely on judicial control.

²⁶ New York Journol and Weekly Register, xlii, no. 24, March 20, 1788.

²⁷ iv, 468.

²⁸ “It is their [the Judiciary's] province to decide upon our laws and if they find this clause to be unconstitutional, they will not hesitate to declare it so.”

²⁹ Bedford, 1787: “The representatives of the people ‥‥ ought to be under no external control whatever.”

Mercer, 1787: “He disapproved of the doctrine that the judges as expositors of the Constitution should have authority to declare a law void.”

Spaight, 1787: “It is immaterial what law they [the judges] have declared void; it is their usurpation of the authority to do it that I complain of.”

³⁰ Elliot's, Debates, i, 506.Google Scholar

³¹ Thayer's, J. B.John Marshall, 65.Google Scholar

³² Elliot's, Debates, i, 126.Google Scholar

³³ Holst, Von, Constitutional History, i, 63.Google Scholar

³⁴ McMaster, and Stone, , Pennsylvania and the Federal Constitution, 766.Google Scholar

³⁵ Same, 255, 259, 269.

³⁶ Same, 445, 478, 489.

³⁷ Same, 562.

³⁸ Ford's, Documents, 126.Google Scholar

³⁹ McMaster and Stone, 623.

⁴⁰ Same, 659.

⁴¹ The original is reproduced in Ford's, Pamphlets, 25.Google Scholar Webster adds a footnote: “Any powers not promotive of these purposes will be unconstitutional;—consequently any appropriations of money to any other purpose will expose the congress to the resentment of the States, and the members to impeachment and the loss of their seats.”

⁴² Ford's, P. L.Essays on the Constitution, 211.Google Scholar

⁴³ Elliot's, Debates, ii, 85.Google Scholar

⁴⁴ Same, 93.

⁴⁵ Same, 131.

⁴⁶ Same, 71.

⁴⁷ Same, 174.

⁴⁸ Elliot's, Debates, i, 322.Google Scholar

⁴⁹ Elliot's, Debates, ii, 549.Google Scholar

⁵⁰ Ford's, Pamphlets, 234.Google Scholar

⁵¹ Elliot's, Debates, iv, 269.Google Scholar

⁵² Debates on Adopting the Federal Constitution in the State of South Carolina, 21.

⁵³ Same, 71.

⁵⁴ Elliot's, Debates, i, 325.Google Scholar

⁵⁵ Elliot's, Debates, v, 553.Google Scholar

⁵⁶ Same, 563.

⁵⁷ Same, 18.

⁵⁸ Same, 186.

⁵⁹ Same, 299.

⁶⁰ Same, 443.

⁶¹ Elliot's, Debates, iii, 325, 539, 541.Google Scholar

⁶² Elliot's, Debates, i, 327.Google Scholar

⁶³ Elliot's, Debates, iii, 659.Google Scholar

⁶⁴ Ford's, Pamphlets, 312.Google Scholar

⁶⁵ Childs, F., Debates and Proceedings of the Convention of the State of New York, 113.Google Scholar

⁶⁶ See Speeches of John Lansing, Jr. and John Williams, same, 75, 91, 96.

⁶⁷ Same, 123.

⁶⁸ Elliot's, Debates, i, 327.Google Scholar

⁶⁹ Same, 331.

⁷⁰ Ford's, Essays, 295.Google Scholar

⁷¹ Elliot's, Debates iv, 71.Google Scholar

⁷² Same, 161.

⁷³ Same, 185.

⁷⁴ Elliot's, Debates, ii, 244.Google Scholar

⁷⁵ “In all the other cases before mentioned [cases within the judicial power, but where the supreme court has no original jurisdiction], the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the congress may make.” Constitution, art. iii, sec. 2.

⁷⁶ B. Coxe, Judicial Power and Unconstitutional Legislation; J. H. Dougherty, Power of Federal Judiciary over Legislation.

⁷⁷ Stimson's Law Dictionary—expressio unius est exclusio alterius.