Washington Law Review


It is repeatedly claimed in high places that the action of the Supreme Court in declaring acts of Congress unconstitutional is a usurpation on the part of the judges. This assertion is sometimes made by college professors, sometimes by statesmen and sometimes even by lawyers. On the contrary, in exercising that power the Supreme Court merely declares that the will of the people of the several states in ratifying their federal compact shall remain supreme over attempted usurpation of power by their agents in the federal legislature. When John Marshall proclaimed that power in the famous case of Marbury v. Madison, decided in February, 1803, it was not a new doctrine. Previous to that decision, the courts of Maryland, Virginia, North Carolina, Rhode Island, and New Jersey had recognized their duty to declare void, acts of the state legislatures which contravened the will of the people of those states expressed in their state constitutions.

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