522
Interpreting and Preserving the Constitution
tablished, are deemed fundamental. And as the authority from which
they proceed is supreme, and can seldom act, they are designed to be permanent.
This original supreme will organizes the government, and assigns to
different departments their respective powers. It may either stop here, or
establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The
powers of the legislature are defined and limited; and that those limits
may not be mistaken, or forgotten, the Constitution is written. To what
purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the
persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested,
that the Constitution controls any legislative Act repugnant to it; or, that
the legislature may alter the Constitution by an ordinary Act.
Between these alternatives there is no middle ground. The Constitution
is either a superior paramount law, unchangeable by ordinary means, or it
is on a level with ordinary legislative Acts, and, like other Acts, is alterable
when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative Act contrary to the Constitution is not law; if the latter part be true, then written
constitutions are absurd attempts, on the part of the people, to limit a
power in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation,
and, consequently, the theory of every such government must be, that an
Act of the Legislature, repugnant to the Constitution, is void.
This theory is essentially attached to a written Constitution, and, is
consequently, to be considered, by this court, as one of the fundamental
principles of our society. It is not therefore to be lost sight of in the further
consideration of this subject.
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? Or, in other words, though it be now law, does it consti-