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Interpreting and Preserving the Constitution
while at the same time setting limits to the exercise of those powers.
These limits were expressed in a written constitution, which would be a
useless document ‘‘if these limits may, at any time, be passed by those
intended to be restrained.’’ Because the Constitution is ‘‘a superior paramount law,’’ it may not be changed by ordinary legislation. This means
that ‘‘a legislative act contrary to the Constitution is not law.’’
The question, continued Marshall, thus presents itself: ‘‘If an act of the
legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?’’ The
answer, said Marshall, is abundantly clear: No. The judges do not really
have a choice in the matter. ‘‘It is emphatically the province and duty of
the judicial department, to say what the law is.’’ But judges do not interpret the law in the dark; they interpret it in the light of the Constitution,
which provides the rule of interpretation. ‘‘If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary
act of the legislature, the Constitution, and not such ordinary act, must
govern the case.’’ To declare otherwise, Chief Justice Marshall asserted,
would be to permit the legislature to surpass at will the limits imposed
upon its powers by the Constitution. The very concept of a written constitution, in other words, justified judicial review.
But, Marshall further noted, the Framers did not leave the matter entirely to common sense and reason. They provided the Supremacy Clause,
which gave the Constitution precedence over laws and treaties and specified that only laws ‘‘which shall be made in pursuance of the Constitution’’ are to be the supreme laws of the land. ‘‘Thus, the particular phraseology of the Constitution of the United States confirms and strengthens
the principle, supposed to be essential to all written constitutions, that a
law repugnant to the Constitution is void, and that courts, as well as other
departments, are bound by that instrument.’’
The Supreme Court did not again render an act of Congress null and
void through judicial review until 1857, when in the case of Dred Scott v.
Sandford the Justices ruled that the Missouri Compromise of 1820, prohibiting slavery in the Territories, was unconstitutional. In general, the
Court has been remarkably restrained in exercising judicial review over
acts of Congress, and throughout much of American history has been
rather reluctant to challenge the legislature. As indicated by the Court’s