Page:The Supreme Court in United States History vol 1.djvu/40

14 disgrace the composition of the meanest Legislature of the States." Later attacks upon the Federal judicial system have been largely attributable to the fact that neither of the two great powers which the Supreme Court has exercised in interpreting and maintaining the su- premacy of the Constitution were granted in express terms in the instrument itself. For the power to pass upon the constitutional vahdity of State legislation was conferred by Congress by this Twentjy-Fif th Section of the Judiciary Act, in pursuance of the general power of Congress to pass all acts ** necessary and proper for carrying into execution ... all other powers vested by this Constitution in the Government of the United States", and in order to make eflfective the provision of Article Six, to the end that the Constitution and the Laws of the United States should be the supreme law of the land. And the Court's power to pass on the constitutional validity of Federal legislation was es- tablished by decisions of the Court itself, as an inherent and necessary judicial function in ascertaining and interpreting what the finally binding law was.^ Yet as Madison said in 1832, a supremacy of the Constitu- tion and laws of the Union " without a supremacy in the exposition and execution of them would be as much a mockery as a scabbard put into the hands of a soldier without a sword in it. I have never been able to see that, without such a view of the subject, the Constitu- tion itself could be the supreme law of the land; or

^ Edward S. Corwin in his illuminating book on The Doctrine cf Judicial Renew (1914), 17, takes this position that the power was not to be implied from the provisions of either Article III or Article VI of the Constitution, but was " the natural outgrowth of ideas that were common property in the period when the Constitution was framed. . . . We are driven to the conclusion that judicial review was rested by the framers of the Constitution upon certain general principles which in their estimation made specific provision for it unnecessaiy, in the same way as, for example, certain other general principles made unnecessary specific provision for the President's power of removal."