§ 85. STATE COURTS ADMINISTER NATIONAL LAW SUBJECT TO APPEAL.

"It is of the nature of the judicial power to decide upon the constitutionality of any law or act of the government. The supremacy of the Constitution over all such laws and acts is admitted in theory; but how shall this supremacy be made effectual, unless in the decision of controversies arising, etc., if the courts trying the question cannot give practical supremacy to the Constitution by declaring the law or act of the government inoperative, null and void? It is therefore of the very nature of judicial power to subordinate the laws and acts of the government to the Constitution by declaring such acts to be null and void where they conflict with the Constitution.1

"The leading case of Marbury v. Madison, in which the masterly judgment of Chief Justice Marshall has exhausted the reason for this principle, is all that may be referred to. That such a power was contemplated by the Constitution is evident from the writings in the Federalist.3 It is obvious, however, that the judicial power of each State, in deciding upon a case arising under the Constitution, might be in favor of the constitutionality of the law or act of the government, and the decision in another State might be against it. The effect of these diverse decisions upon the same class of cases arising under the Constitution, while conclusive as to the particular controversy, would make the Constitution in effect different in the different States and in its application to these various cases. The Constitution itself, therefore, declared to be the supreme law of the land, would be one thing in one State and a different thing in another State. This would be not only an anomaly in our system, but a great grievance; for instead of one uniform

Tucker on the Constitution, p. 763, Vol. I, sec. 367.

Constitution operating either upon all the States and the people of the entire Union, we should have as many Constitutions, in effect, as there were diverse opinions among the State judges deciding such questions. It is therefore of the first importance that some means should be devised, and that through the judicial department, for making the Constitution uniform in its operation by uniform decisions as to its meaning in every State in the Union, and binding upon all the people of all the States. How is this uniformity to be reached? . . . A method was adopted by the act of 1789 and has continued until this day. The twenty-fifth section of that act provided that when the highest appellate court decided adversely to a right claimed under the Constitution of the United States, or under a treaty or law of the United States, the party so decided against might appeal from the supreme appellate court of the State to the Supreme Court of the United States. This allowed to the litigants all the advantage which they might claim from the litigation being conducted in the local State court. The party whose Constitutional right might be supposed to be violated by the decision of the inferior court was required to secure the vindication of his right by final appeal to the appellate court of the State. If this last decided adversely to his claim he could make his appeal to the Supreme Court of the United States."

§ 86. THE RIGHTS PROTECTED BY THE FIRst Eight AMENDMENTS ARE PROTECTED BY THE LAW ADMINISTERED BY STATE COURTS. The conclusion reached by Chief Justice Marshall nearly sixty years ago,1 that the first eight amendments containing general guarantees of civil and religious liberty and protection to person and property, are limitations upon federal

1 Barron v. Baltimore, 7 Peters, 243.

2

• Emlin McClain, Federal Protection against State Power, Harvard Law Review, March, 1893, Vol. VI, 408.

power, and cannot be invoked as against an exercise of power by the States, has been accepted in a long line of decisions, and has been acquiesced in as final and conclusive by all writers upon constitutional law. This does not extend the political power of the States, limit rights of national citizenship, or restrict the scope either of national statutes or the controlling constitutional or common law principles. The application of law by State courts is not the exercise of a State power but the application of that law which the judges are sworn to uphold.

The case of Barron v. Baltimore 2 was one in which the provision of the Fifth Amendment prohibiting the taking of private property for a public use without just compensation was invoked as against a State statute and was held not a basis for the interference of the Federal courts. Yet it would not be said that such a statute would be constitutional if it violated the constitutional principle; and Maryland not being satisfied with the similar prohibition in her own constitution in 1867 made the constitution and laws of the United States the law of Maryland. The decision would be different under the Fourteenth Amendment. The doctrine has been announced as to freedom of religion, as to criminal prosecutions in general, as to previous jeopardy, as to cruel and unusual punishments,' as to trial

3

Story on the Constitution, secs. 301-305, and 1857-1868; Cooley, Const. Lim. (6th ed.) 29; Hare, Am. Const. Law, chap. xxiv (26); Norwood v. Baker, 172 U. S. 269.

2 7 Peters, 243 (1833).

Norwood v. Baker, 172 U. S. 269.

Permoli v. New Orleans, 3 How. 589.

Twitchell v. Commonwealth, 7 Wall. 331.

Fox v. Ohio, 5 How. 410.

Pervear v. Commonwealth, 5 Wall. 475; In re Kemmler, 136 U. S. 436.

3

by jury in suits at common law,' as to issuing warrants only on probable cause supported by oath,' as to the right peaceably to assemble, as to the right to bear arms, and as to immunity from quartering soldiers," that rights of national citizenship may be different from those of citizenship of a State, and may be protected by the ordinary procedure of the courts of the State.

§ 87. THE FIRST EIGHT AMENDMENTS REALLY APPLY TO THE STATES. THE FOURTEENTH AMENDMENT. - It is asserted by some writers that it would be well that the first eight amendments should be held not to apply to the States. This implies, as pointed out by Tucker, a different Constitution of the United States in every State, or (if the State judges are not bound to consider the Constitution) a failure of those guarantees which make the Constitution more than an organic administrative law. To justify diversity in the States it is said that it will permit experiments in single States which may be adopted or rejected in the other States. This assumes that the law is empirical, which it distinctly is not, especially in the matter of fundamental rights. William D.

1 Edwards v. Elliot, 21 Wall. 557; Walker v. Sauvinet, 92 U. S. 90; see Murray's Lessee v. Hoboken L. & I. Co., 18 How. 280. 2 Smith v. Maryland, 18 How. 71.

U. S. v. Cruikshank, 92 U. S. 542; North Carolina v. Newsom, 5 Iredell, 250.

Presser v. Illinois, 116 U. S. 252.

5 Boyd v. United States, 116 U. S. 616, a result of the doctrine enunciated by Lord Camden in Entick v. Carrington and Three King's Messengers, 19 Howell's State Trials (1765), 1030. A territorial legislature in Utah could not abolish jury trial, Thompson v. Utah, 170 U. S. 343; American Publishing Co. v. Fisher, 166 U. S. 464; Springville v. Thomas, 166 U. S. 707.

On the Constitution, sec. 367.

Guthrie expresses the opinion that the first eight amendments apply, in their prohibitions, to the States. Whether they should have been held in the beginning to apply to the States does not touch the other question whether the Fourteenth Amendment includes the extension of these articles as a necessary part of the guarantees provided in that amendment. Speaking of the Fourteenth Amendment, Mr. Guthrie says: 2

"The second clause of section 1 provides that 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.'

"This language presents a question of greatest personal interest to every citizen. What are the privileges and immunities of citizens of the United States which are thus not to be abridged? It must surely be those privileges and immunities which attach to citizens of the United States as such, and not as citizens of any particular State or Territory embraced within the Union; it must be those privileges and immunities which belong to them as citizens under the government established by the Constitution of the United States and regulated by the laws of Congress — the privileges and immunities that James Wilson 3 would have characterized as 'federal liberty.' Among these privileges and immunities are the fundamental rights of the individual which are mentioned in the first eight amendments to the Constitution.

"Unless the privileges and immunities of citizens of the United States' are derived from the Constitution of the United States, it is difficult to see from what source they are derived. They cannot have their origin in the 1 Guthrie, The Fourteenth Amendment. The Fourteenth Amendment, 58.

3 Wilson's Works (ed. 1896), p. 539.