in the charge of "usurpation", should note that fact with care.

The effect of the adoption of these fundamental guarantees of rights was strikingly described by Charles Pinckney, in 1800:

When those Amendments became a part of the Constitution, it is astonishing how much it reconciled the States to that measure; they considered themselves as secure in those points on which they were the most jealous; they supposed they had placed the hand of their own authority on the rights of religion and the press, and the as sacred right of the States in the election of the President; that they could with safety say to themselves: "On these subjects we are in future secure; we know what they mean and are at present; and such as they now are, such are they to remain, until altered by the authority of the people themselves; no inferior power can touch them."1

16th Cong., 1st Sess., March 28, 1800, speech of Charles Pinckney in the Senate. His remarks prior to that quoted above are of interest: "It is of essential importance in examining this bill to recur to those Amendments and the reason of their being adopted. This appears in the caption of the resolution recommending the Amendments to the adoption of the States. It is in these words: 'The Conventions of a number of the States having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the Government will best insure the beneficent end of its Constitution; therefore Congress, according to the Constitutional mode, recommended to the States to agree to, and their Legislatures to adopt such Amendments as are now officially directed to be annexed to the Constitution.'

'By this caption it appears that jealousies and suspicions existed in the States; that they were anxious to have some declaration of the principle of the system to be ascertained on the subjects of religion and the press and the rights of the people and the State Legislatures. They knew that parties would arise, and that, as in all Governments unprincipled and designing men had existed, they saw no reason to expect that their own would be without them; they therefore determined that an explicit Constitutional declaration should be annexed, expressly stipulating that the powers not specifically delegated were reserved, and that the prohibitions and reserves mentioned in the Amendments should be added, in the nature of a Bill of Rights."

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CHAPTER FOUR

EARLY CONGRESSES AND THE COURT

"I believe it was generally understood when the Constitution was adopted that the Judiciary would, when necessary and proper, exercise this negative power. The different departments were expected to check and restrain each other from exceeding the proper limits. This negative power . . . has been exercised by the Courts of the United States and of most of the States, ever since the commencement of the Government, without producing any serious inconvenience.” JOHN POPE of Kentucky, in the House, Feb. 24, 1808, 10th Cong., 1st Sess.

"It is well known . . . that the right of the Courts to decide on the constitutionality of your laws has been recognized in your laws themselves, has been exercised by the Courts, your laws have been pronounced unconstitutional and void, and that decision has not only been acquiesced in by the Legislature but the Act itself has been removed from your code of statutes." ROGER GRISWOLD of Connecticut, in the House, Feb. 25, 1802, 7th Cong., 1st Sess.

"Judges sworn to administer the law are bound to consider the supreme rule as being supreme. . . they have no option and must pronounce for the Constitution and against the law. . . . All this was perfectly well understood at the adoption of the Constitution; and therefore the law of 1789 passed at the very first session of Congress provides a mode by which among other things judgments of State tribunals declaring Acts of Congress void may be revised in the Supreme Court." - DANIEL WEBSTER of Massachusetts, in the House, Jan. 25, 1826, 19th Cong., 1st Sess.

We have seen what was the intention and the expectation of both the framers and the ratifiers of the original Constitution, and the intention and expectation of the framers of the first ten Amendments and of the First Congress which adopted them, with respect to the relation of the Supreme Court to Acts of Congress.

Yet notwithstanding all this evidence of original intention, some men, at the present day labor leaders, social reformers, so-called progressives, radicals, and others unhampered by knowledge of factsstill make the charge that the Court has usurped the power of passing on the validity of Acts of Congress.1 They assert that the Court was not originally intended to possess this power; and they allege that this power was "usurped" for the first time by Chief Justice Marshall, in 1803, in giving the opinion of the Court in the famous case of Marbury v. Madison. To those making this charge, the same answer may be made which Abraham Lincoln made to Stephen A. Douglas when the latter declared that his position on slavery was that of "the fathers." To this, Lincoln replied, in his Cooper Union Speech in 1860: "He has no right to mislead others, who have less access to history and less leisure to study it, into the false belief that our fathers who framed the Government under which we live were of the same opinion, thus substituting falsehood and deception for truthful evidence and fair argument." If the evidence already furnished as to the intention of the framers of the Constitution is not sufficient to convince persons making this charge, they ought certainly to be converted, if it should be made plain to them that the early Congresses themselves did not share in this view as to "usurpation." For it was certainly those early Congresses which were primarily interested to

1 See address of the late Senator La Follette before the Convention of the American Federation of Labor, June 14, 1922: “ There is no sanction in the written Constitution of the United States for the power which the Courts now usurp. They have secured this power only by usurpation. . . . The usurped power of the Federal Courts must be taken away,"

combat assertion of alleged "usurped" power. It is singular that so few historical or legal writers seem to have taken the trouble to ask: "What did the members of Congress, themselves, in those early days, believe as to the Court's right to declare an Act of Congress invalid?" Few men seem, hitherto, to have made any detailed survey of the forerunner of the present day Congressional Record, namely the Annals of Congress, for the first twelve years, in order to ascertain the views of the Congresses, from the First to the Seventh. Yet a careful examination of these records (so far as printed) now discloses the fact that, in every Congress from 1789 to 1802, the power of the Court to hold Acts of Congress invalid was not only recognized but endorsed by members of both political parties, Federalist and Anti-Federalist alike, by members who construed the Constitution broadly as well as by those who construed it narrowly, and that there is but one specific recorded objection to the Court's power, namely by Charles Pinckney of South Carolina, in 1799,- ten years after the Constitution went into operation. The proof is overwhelming, that the early Congresses themselves then believed the Court to possess the power, to which, at this late date, to-day, some "grumbletonians" set up a challenge.1 Contemporary views are certainly more reliable than theories and historical fiction invented over a hundred years later. American citizens and American lawyers can find no better exposition of fundamental Constitutional principles than

1 It is sometimes said that Abraham Baldwin of Georgia expressed himself in 1800, as opposed to the Court's power; but his objection, if such it be, was expressed in indefinite terms. See infra, p. 123.

in the reports of the early Congressional debates in the House of Representatives. It was natural that, in translating the principles of the Constitution into legislation for the new Government, wide differences of opinion should arise as to the scope of those principles. Accordingly, one of the most striking, yet at the same time necessary, features of those early debates was the extent to which the discussion centered around the constitutionality of practically every important proposed bill introduced into Congress. During those discussions, many of those who had taken part in the Federal Convention of 1787 and in the State Conventions of 1787 and 1788, and who were later Members of Congress, expressed their views as to the application of the Constitution. For this reason, those early debates should receive far more attention than has been given to them by students of American history and law, since they contain a contemporaneous exposition of the fundamental provisions of the Constitution.1 "Among other difficulties," wrote James Madison to Governor Samuel Johnston, in June, 1789, "the exposition of the Constitution is frequently a copious source, and must continue so until its meaning on all great points shall have been settled by precedents." Each po

1 The effect of the views of those who were fairly contemporaneous with the Constitution was interestingly stated by John G. Jackson of Virginia, in the House, Jan. 13, 1816, as follows: "I consider the decision which shall be pronounced now, as calculated to fix, perhaps for ages, the interpretation of the Constitution, in relation to one of its most important provisions . . . being given in the same age which gave birth to the Constitution (it) will possess all the weight of a precedent established almost contemporaneously with the charter." 14th Cong., 1st Sess. See also William Vans Murray of Maryland, in the House, March 23, 1796: "We have all seen the Constitution from its cradle, we know it from its infancy, and have the most perfect knowledge of it and more light than ever a body of men in any country have ever had of ascertaining any other Constitution." 4th Cong., 1st Sess.