This power of the courts to declare a law unconstitutional can only exist where there is a written constitution. No such power is possessed by the English courts, and an act of parliament, is absolutely conclusive and binds everybody when once its meaning is ascertained. But, where a written constitu tion exists, it is the expression of the will of the sovereign power, and no body which owes its existence to that constitution (as does the legislature) can violate this funda mental expression of the will of the people. It was originally doubted whether the courts possessed this power, even where a written constitution exists, but it is now established beyond doubt. The question may arise with regard to both state and United States laws considered with reference to the United States constitution, and with regard to state laws also as considered in reference to the state. No important question of law has ever been approached with more caution, examined and discussed with more delibera tion and finally determined more conclusive ly, than that of the existence of this judicial power. It arose as early as 1792, on an act conferring powers upon the judges which were alleged to be not judicial, but a de cision was avoided by repeal of the stat ute; see Hayburn's Case, 2 Dall. (U. S.) 400, 1 L. Ed. 436; but the question arising in another case, the act was declared uncon stitutional ; see U. S.'v. Ferreira, 13 How. (U. S.) 40, 52 note, 14 L. Ed. 42; the ques tion was again raised in 1798 and not de cided; Calder v. Bull, 3 Dall. (U. S.) 386, 1 L. Ed. 648; and later it was stated from the bench as the general sentiment of the bench and bar that the power existed; Cam. v. Coxe, 4 Dall. (U. S.) 194, 1 L. Ed. 786. But in 1803 the question was directly raised in a famous case recently much discussed in legal periodical literature, and the power and duty of the court to declare an act un constitutional were declared in an opinion by Marshall, C. J., in what Kent terms "an argument approaching to the precision and certainty of a mathematical demonstra tion ;" 1 Kent 453 ; in that case the actual decision was against the jurisdiction, and therefore no law was declared unconstitu tional, but the reasoning of the opinion is the basis of the rule afterwards applied and firmly settled ; the question was next sen ously raised and finally settled by the rea soning of Marshall, C. J., in Cohen v. Vir ginia, 6 Wheat. (U. S.) 264, 5 L. Ed. 257; Marbury v. Madison, 1 Cra. (U. S.) 137, 2 L. Ed. 60 ; prior to this decision the ques tion had been raised and decided in favor of the power of the courts in New Jersey; State v. Parkhurst, 9 N. J. L. 427, 440, 444; in Virginia, In re First Case of the Call, 1, 135; Com. v. Cherry, 2 Va. Cas. 20; Page v. Pendleton, Wythe, 211; in South Carolina, Bowman v. Middleton, 1 Bay 252 ; in North Carolina, Den v. Singleton, 1 N. C. 48; in Rhode Island, Pamph. J. B. Varnum, Providence, 1787 ; and it was raised in New York in a case argued by Hamilton; Ham ilton's Works, vol. 5, 115 ; vol. 7, 197. See Dillon, Laws & Jur. of Eng. 203.
In Eakin v. Raub, 12 S. & R. (Pa.) 330, Gibson, C. J., in a dissenting opinion, was of opinion that the right of the judiciary to declare a legislative act unconstitutional does not exist, unless expressly stated ; but that it is expressly given by the clause in the federal constitution which provides that the constitution shall be the supreme law of the land, etc. The same judge in Norris v. Clymer, 2 Pa. 281, said to counsel that he had changed his opinion for two reasons: -the late convention of Pennsylvania by their silence sanctioned the pretensions of the court to deal with the acts of the legislature ; and be was satisfied from ex perience of the necessity of the case.
The power has been exercised by the su preme court of the United States in the fol lowing cases: Hayburn's Case, 2 Dall. (U. S.) 409, 1 L. Ed. 436 ; U. S. v. Ferreira, 13 Row. (U. S.) 40, 52, 14 L. Ed. 42; Marbury v. Madison, 1 Cra. (U. S.) 137, 2 L. Ed. 60 ; Gordon v. U. S., 2 Wall. (U. S.) 561, 17 L. Ed. 921; In re Garland, 4 Wall. (U. S.) 333, 18 L. Ed. 366 ; Hepburn v. Griswold, 8 Wall. (U. S.) 603, 19 L. Ed. 513 ; U. S. v. Dewitt, 9 Wall. (U. S.) 41, 19 L. Ed. 593 ; Supreme Justices v. Murray, 9 Wall. (U. S.) 274, 19 L. Ed. 658 ; Collector v. Day, 11 Wall. (U. S.) 113, 20 L. Ed.' 122 ; U. S. v. Klein, 13 Wall. (U. S.) 128, 20 L. Ed. 519; U. S. v. 'R. Co., 17 Wall. (U. S.) 322, 21 L. Ed. 597; U. S. v. Reese, 92 U. S. 214, 23 L. Ed. 563; U. S. v. Fox, 95 U. S. 670, 24 L. 538 ; U. S. v. Steffens, 100 U. S. 82, 25 L. Ed. 550 ; Kilbourn v. Thompson, 103 U. S. 168, 26 L. Ed. 377; U. S. v. Harris, 106 U. S. 629, 1 Sup. Ct. 601, 27 L. Ed. 290 ; U. S. v. Stanley, 109 U. S. 3, 3 Sup. Ct. 18, 27 L. Ed. 835; Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746 ; Pollock v. Trust Co., 158 U. S. 601, 15 Sup. Ct. '912, 39 L. Ed. 1108; Employers' Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297; Adair v. U. S., 208 U. S. 161, 28 Sup. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 764. And the power has been exercised by that court with respect to state or territorial statutes in cases running into the hundreds.
The discussion of the subject was recent ly revived by an article on the Income Tax Cases in 29 Am. L. Rev. 550, characterizing the exercise of the power in question as "without constitutional warrant" and "bas ed only on the plausible sophistries of John Marshall, and another by the same writer on the case of Marbury v. Madison, char acterizing the doctrine as an "unconstitu tional usurpation of the lawmaking power by the federal courts ;" 30 Am. L. Rev. 188. The first of these was followed by an article in the same periodical taking issue with it ; id. 55 ; and one in 34 Am. L. Reg. & Rev. 796. In the last the subject is thoroughly reviewed from the earliest cases down to the Income Tax cases, and it contains much historical matter bearing upon the question not before collected. See also 7 Harv. L. Rev. 129 ; 19 Am. L. Rev. 177; Coxe on Ju dicial Power and Unconstitutional Legisla tion ; an elaborate discussion of the sub ject by Jno. R. Wilson, Pres't, Rep. Ind. St. Bar Ass'n for 1899, p. 12.
In judging what a constitution means, it must be interpreted in the light and by the assistance of the common law ; Durham v. State, 117 Ind. 477, N. E. 327; Brewer, J., in South Carolina v. U. S., 199 U. S. 437, 449, 26 Sup. Ct. 110, 50 L. Ed. 261, 4 Ann. Cas. 737; Matthews, J., in Smith v. Alabama. 124 U. S. 465, 478, 8 Sup. Ct. 564, 31 L. Ed. 508 ; Gray, J., in U. S. v. Wong Kim Ark, 169 U. S. 649, 654, 18 Sup. Ct. 456, 42 L. Ed. 890; Bradley, J., in Moore v. U. S., 91 U. S. 270, 274, 23 L. Ed. 346.
Certain fundamental principles govern the courts in passing upon the validity of legis lative acts under the constitution ; among them are the following: It is not usual as a matter of practice for courts to pass upon constitutional questions excepting before a full bench; Briscoe v. Bank, 8 Pet. (U. S.) 118, 8 L. Ed. 887.