John Marshall and the Constitution, A Chronicle of the Supreme Court | Page 6

a negative thereon shall be final" and to
impose a qualified veto in either case.
But, as discussion in the Convention proceeded, three principles
obtained clearer and clearer recognition, if not from all its members,
certainly from the great majority of them: first, that the Constitution is
law, in the sense of being enforcible by courts; secondly, that it is
supreme law, with which ordinary legislation must be in harmony to be
valid; and thirdly--a principle deducible from the doctrine of the
separation of powers--that, while the function of making new law
belongs to the legislative branch of the Government, that of
expounding the standing law, of which the Constitution would be part
and parcel, belongs to the Judiciary. The final disposition of the
question of insuring the conformity of ordinary legislation to the
Constitution turned to no small extent on the recognition of these three
great principles.
The proposal to endow Congress with the power to negative state
legislation having been rejected by the Convention, Luther Martin of
Maryland moved that "the legislative acts of the United States made in
virtue and in pursuance of the Articles of Union, and all treaties made

or ratified under the authority of the United States, shall be the supreme
law of the respective States, and the judiciaries of the several States
shall be bound thereby in their decisions, anything in the respective
laws of the individual States to the contrary notwithstanding." The
motion was agreed to without a dissenting voice and, with some slight
changes, became Article VIII of the report of the Committee of Detail
of the 7th of August, which in turn became "the linch-pin of the
Constitution."* Then, on the 27th of August, it was agreed that "the
jurisdiction of the Supreme Court" should "extend to all cases arising
under the laws passed by the Legislature of the United States," whether,
that is, such laws should be in pursuance of the Constitution or not. The
foundation was thus laid for the Supreme Court to claim the right to
review any state decision challenging on constitutional grounds the
validity of any act of Congress. Presently this foundation was
broadened by the substitution of the phrase "judicial power of the
United States" for the phrase "jurisdiction of the Supreme Court," and
also by the insertion of the words "this Constitution" and "the" before
the word "laws" in what ultimately became Article III of the
Constitution. The implications of the phraseology of this part of the
Constitution are therefore significant:
* Article VI, paragraph 2.
Section I. The judicial power of the United States shall be vested in one
Supreme Court, and in such inferior courts as the Congress may from
time to time ordain and establish. The judges, both of the Supreme and
inferior courts, shall hold their offices during good behavior, and shall
at stated times receive for their services a compensation which shall not
be diminished during their continuance in office.
Section II. 1. The judicial power shall extend to all cases in law and
equity arising under this Constitution, the laws of the United States,
and treaties made, or which shall be made, under their authority; to all
cases affecting ambassadors, other public ministers, and consuls; to all
cases of admiralty and maritime jurisdiction; to controversies to which
the United States shall be a party; to controversies between two or more
States, between a State and citizens of another State, between citizens
of different States, between citizens of the same State claiming lands
under grants of different States, and between a State, or the citizens
thereof, and foreign states, citizens, or subjects.

Such, then, is the verbal basis of the power of the courts, and
particularly of the Supreme Court, to review the legislation of any State,
with reference to the Constitution, to acts of Congress, or to treaties of
the United States. Nor can there be much doubt that the members of the
Convention were also substantially agreed that the Supreme Court was
endowed with the further right to pass upon the constitutionality of acts
of Congress. The available evidence strictly contemporaneous with the
framing and ratification of the Constitution shows us seventeen of the
fifty-five members of the Convention asserting the existence of this
prerogative in unmistakable terms and only three using language that
can be construed to the contrary. More striking than that, however, is
the fact that these seventeen names include fully three-fourths of the
leaders of the Convention, four of the five members of the Committee
of Detail which drafted the Constitution, and four of the five members
of the Committee of Style which gave the Constitution its final form.
And these were precisely the members who expressed themselves on
all the interesting and vital subjects before the Convention, because
they were its statesmen and