Supreme Court and Unconstitutional Acts of Congress

Authors

Edwin S. Corwin, Princeton University

Abstract

The power of the Supreme Court of the United States to supervise Congressional legislation has been so generally assumed in the recent discussions, both in and out of Congress, of the proposed Rate Bill, and is indeed so apparently settled today that it becomes of interest to inquire into the intention of the Constitutional Fathers in this matter. Did the Fathers intend that the federal judiciary should have the right to declare an act of Congress of no effect because transgressing constitutional limits? It does not detract from the interest of this question that two recent authorities who attempt to answer it-without, however, going into the subject at any length-express opposing opinions. Thus Mr. Cotton, the editor of the Constitutional Decisions of John Marshall, says with reference to 'Marshall's decision in Marbury v. Madison-decided in 1803 :--"That opinion is the beginning of the American system of constitutional law. In it Marshall announced the right of the Supreme Court to review the constitutionality of the acts of the national legislature and the executive, the coordinate branches of the government. Common as this conception of our courts now is, it is hard to comprehend the amazing quality of it then. No court in England had such a power, there was no express warrant for it in the words of the Constitution; the existence of it was denied by every other branch of the government and by the dominant majority of the country. Moreover, no such power had been clearly anticipated by the framers of the Constitution, nor was it a necessary implication from the scheme of government they had established." On the other hand, Professor McLaughlin in his Confederation and the Constitution, though he concedes that "it is hard to speak with absolute assurance," deduces the power in question with considerable confidence from that clause of the Constitution which extends the judicial power of the United States to all cases "arising under this Constitution." "Certainly," he says, "the Constitution was by this clause recognized and proclaimed as law and we may at least assert that by force of logic, if not because of the conscious purpose of the members of the convention, this power was bestowed, the power to declare of no effect an act of Congress contrary to the law of the land."

Recommended Citation

Edwin S. Corwin, Supreme Court and Unconstitutional Acts of Congress, 4 Mich. L. Rev. 616 (1906).
Available at: https://repository.law.umich.edu/mlr/vol4/iss8/3