their future government, such principles as, in their opinion, shall most conduce to their happiness. The exercise of this original right is a very great exertion, nor can it be, nor ought it to be, frequently repeated. The principles, therefore, so established are deemed fundamental, and, as the authority from which they proceed is supreme and can seldom act, they are designed to be permanent. This original and supreme will organizes the Government, and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those powers. The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that these limits may not be mistaken or forgotten, the Constitution is written. The Constitution is either a superior permanent 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. Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and permanent law of the Nation, and consequently the theory of every such Government must be that an act of the Legislature repugnant to the Constitution is void. This theory is essentially attached to a written Constitution and is consequently to be considered by this Court as one of the fundamental principles of our society. If an act of the Legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would seem, at first view, an absurdity too gross to be insisted upon. It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other the Courts must decide on the operation of each. . . . So if a law (an act of the Legislature) be in opposition to the Constitution; if both the act of the Legislature and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the act of the Legislature, dis

regarding the Constitution, or conformably to the Constitution, disregarding the act of the Legislature, the Court must determine which of these conflicting rules governs the case. This is of the very essence of Judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution and not such ordinary act, must govern the case to which they both apply.

CHIEF JUSTICE MARSHALL

In Gibbons vs. Ogdon.

As men whose intentions will require no concealment generally employ the words which most directly and aptly express the idea they intend to convey, the enlightened patriots, who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.

JUSTICE STORY [1818]

Martin vs. Hunter's Lessee.

The government of the United States can claim no powers which are not granted to it by the constitution; and the powers actually granted must be such as are expressly granted, or given by necessary implication.

GROUP SEVEN: DISTRUST OF GOVERNMENT

CHECKS AND

POWER.

BALANCES AGAINST ANY CONSOLIDATION OF PROPHETS OF DISASTER.

The checks and balances found throughout the whole American system of government show the widespread fear of the possible centralization of power and the necessity for allaying this fear.

Distrust of, rather than confidence in, makers and administrators of the laws appears to be characteristic of the Americans of the first few generations.

Prophets of disaster have appeared in every critical time and predicted dire things if the nation deviated very far from its traditional direction. In earlier generations such prophets of disaster were given a hearing and were believed to serve a salutary purpose in preventing the congealing of customs or the diverting of the national development into avenues leading away from its original direction.

GEORGE WASHINGTON [1785]

Government is not reason, it is not eloquence, it is force! Like fire it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action.

To me it is a solecism in politics, indeed it is one of the most extraordinary things in nature, that we should confederate as a nation, and yet be afraid to give the rulers of that nation (who are the creatures of our own making, appointed for a limited and short duration, and who are amenable for every action and may be recalled at any moment, and are subject to all the evils, which they may be instrumental in producing), sufficient powers to order and direct the affairs of the same.

[1796]

Farewell Address.

Profoundly penetrated with this idea, I shall carry it with me to the grave, as a strong incitement to unceasing vows that Heaven may continue to you the choicest tokens of its beneficence that your union and brotherly affection may be perpetual-that the free constitution, which is the work of your hands, may be sacredly maintained-that its administration in every department may be stamped with wisdom and virtuethat, in fine, the happiness of the people of these States, under the auspices of liberty, may be made complete, by so careful a preservation and so prudent a use of this blessing as will acquire to them the glory of recommending it to the applause, the affection, and adoption of every nation, which is yet a stranger to it. . .

The Unity of Government which constitutes you one people, is also now dear to you.-It is justly so;-for it is a main Pillar in the Edifice of your real independence; the support of your tranquillity at home; your peace abroad; of your safety; of your prosperity in every shape; of that very Liberty, which you so highly prize.—But as it is easy to foresee, that, from different causes, and from different quarters, much pains will be taken, many artifices employed, to weaken in your minds the conviction of this truth;-as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment, that you should properly estimate the immense value of your national Union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the Palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our Country from the rest, or to enfeeble the sacred ties which now link together the various parts.

This government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and ma

ture deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support.-Respect for its authority, compliance with its Laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true Liberty. The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all.—The very idea of the power and the right of the People to establish Government, presupposes the duty of every individual to obey the established Gov

ernment.

Interwoven as is the love of liberty with every ligament of your hearts, no recommendation of mine is necessary to fortify or confirm the attachment.

All obstructions to the execution of the laws, all con.binations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation, the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels, and modified by mutual interests.

It is important, likewise, that the habits of thinking in a free country should inspire caution, in those intrusted with its administration, to confine themselves within their respective constitutional spheres; avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it which predominates in the