The doctrine for which I am contending, is not only clearly inferable from the plain language of the constitution, but by law has been expressly declared and established in practice since the existence of the government.

The second section of the third article of the constitution expressly extends the judicial power to all cases arising under the constitution, laws, etc.  The provision in the second clause of the sixth article leaves nothing to doubt.  “This constitution and the laws of the United States, which shall be made in pursuance thereof etc., shall be the supreme law of the land.”  The constitution is absolutely the supreme law.  Not so the acts of the legislature!  Such only are the law of the land as are made in pursuance of the constitution.

I beg the indulgence of the committee one moment, while I read the following provision from the twenty-fifth section of the judicial act of the year 1789:  “A final judgment or decree in any suit in the highest court of law or equity of a state, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity, etc., may be re-examined and reversed or affirmed in the Supreme Court of the United States, upon a writ of error.”  Thus, as early as the year 1789, among the first acts of the government, the legislature explicitly recognized the right of a State court to declare a treaty, a statute, and an authority exercised under the United States, void, subject to the revision of the Supreme Court of the United States; and it has expressly given the final power to the Supreme Court to affirm a judgment which is against the validity, either of a treaty, statute, or an authority of the government.

I humbly trust, Mr. Chairman, that I have given abundant proofs from the nature of our government, from the language of the constitution, and from legislative acknowledgment, that the judges of our courts have the power to judge and determine upon the constitutionality of our laws.

Let me now suppose that, in our frame of government, the judges are a check upon the legislature; that the constitution is deposited in their keeping.  Will you say afterwards that their existence depends upon the legislature?  That the body whom they are to check has the power to destroy them?  Will you say that the constitution may be taken out of their hands by a power the most to be distrusted, because the only power which could violate it with impunity?  Can anything be more absurd than to admit that the judges are a check upon the legislature, and yet to contend that they exist at the will of the legislature?  A check must necessarily imply a power commensurate to its end.  The political body, designed to check another, must be independent of it, otherwise there can be no check.  What check can there be when the power designed to be checked can annihilate the body which is to restrain?