Transformation of American Law

Printable Version

Digital History ID 3834

Interpreting Primary Sources

Reading 1:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.

Marbury v. Madison, 1803

Reading 2:

You seem...to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy....They have with others, the same passions for party, for power, and privilege of their corps....Their power [is] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control.

Thomas Jefferson, 1820

Reading 3:

The government proceeds directly from the people; it is "ordained and established" in the name of the people....It required not the affirmance, and could not be negatived by the State governments. The constitution, when thus adopted, was of complete obligation, and bound the State sovereignties....

The government of the United States, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land....

Although, among the enumerated powers of government, we do not find the word "bank," or "incorporation," we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies....The power being given, it is the interest of the nation to facilitate its execution....The government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means....

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

McCullough v. Maryland, 1819

Questions To Think About

1. What is the proper role of the judiciary in the American system of government? Should the courts be subservient to the other branches of government?

2. Should the Constitution be interpreted strictly or loosely?



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