Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/440

 432 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 paramount 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. It is not, therefore, to be lost sight of in the further consideration of this subject. 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 be to overthrow in fact, what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

"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 be in opposition to the constitution; if both the law and the constitution apply to a particular case; so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: 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.

"Those, then, who controvert the principle, that the constitution is to be considered, in courts, as a paramount law, are reduced to the necessity of maintaining, that courts must close their eyes on the constitution and see only the law. This doctrine would subvert the very foundation irresistible triumph. To the people at large, therefore, such an institution is peculiarly valuable; and it ought to be eminently cherished by them. On its firm and