Coming now to the third class of cases mentioned above, that which deals with the fundamental conceptions and theory of our American doctrine of constitutional law, Marbury _v._ Madison is the chief case. In speaking of that case I have purposely delayed until this point any reference to this aspect of it. While, historically, this part of it is what gives the case its chief importance, yet it occupies only about a quarter of the opinion.
In outline, the argument there presented is as follows: The question is whether a court can give effect to an unconstitutional act of the legislature. This question is answered, as having little difficulty, by referring to a few “principles long and well established.” (1) The people, in establishing a written constitution and limiting the powers of the legislature, intend to control it; else the legislature could change the constitution by an ordinary act. (2) If a superior law is not thus changeable, then an unconstitutional act is not law. This theory, it is added, is essentially attached to a written constitution. (3) If the act is void, it cannot bind the court. The court has to say what the law is, and in saying this must judge between the Constitution and the act. Otherwise, a void act would be obligatory; and this would be saying that constitutional limits upon legislation may be transgressed by the legislature at pleasure, and thus these limits would be reduced to nothing. (4) The language of the Federal instrument gives judicial power in “cases arising under the Constitution.” Judges are thus in terms referred to the Constitution. They are sworn to support it and cannot violate it. And so, it is said, in conclusion, the peculiar phraseology of the instrument confirms what is supposed to be essential to all written constitutions, that a law repugnant to it is void, and that the courts, as well as other departments, are bound by the constitution.
The reasoning is mainly that of Hamilton, in his short essay of a few years before in the “Federalist.” The short and dry treatment of the subject, as being one of no real difficulty, is in sharp contrast with the protracted reasoning of McCulloch _v._ Maryland, Cohens _v._ Virginia, and other great cases; and this treatment is much to be regretted. Absolutely settled as the general doctrine is to-day, and sound as it is, when regarded as a doctrine for the descendants of British colonists, there are grave and far-reaching considerations--such, too, as affect to-day the proper administration of this extremely important power--which are not touched by Marshall, and which must have commanded his attention if the subject had been deeply considered and fully expounded according to his later method. His reasoning does not answer the difficulties that troubled Swift, afterwards chief justice of Connecticut, and Gibson, afterwards chief justice of Pennsylvania, and many other strong, learned, and thoughtful men; not to mention Jefferson’s familiar and often ill-digested objections.