Equally conclusive and equally worthy of constant repetition is the reasoning of Chief Justice Marshall in Marbury _vs._ Madison, where he said: "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limitations 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."[20]
This decision of the Supreme Court to the effect that it is the duty and within the power of the courts to construe constitutions and to refuse to enforce unconstitutional enactments was rendered in 1803. Yet, notwithstanding that the Constitution of the United States has been amended four times since that decision, and that every state constitution has been again and again remodeled or amended, no American constitution has ever denied to the courts the power to construe constitutions or the duty to refuse to enforce statutes which are in conflict with constitutional limitations. If the power to declare void any statute in conflict with the Constitution of the United States was deemed necessary in 1788 when Hamilton was writing his famous essays, it certainly ought to be far more necessary in our day of multiform legislation, vast increase in the functions of the state, and incompetent, reckless and oppressive class legislation interfering in almost every conceivable manner with the rights and liberties of the individual.