of the Legislature; and the tribunal which affords redress in such case necessarily exercises judicial power,
because it declares what is, and what is not, law, and
applies what it declares to be law to the facts submitted
to its investigation."[1]
It must be admitted, however, that of the two powers vested in the Court for the enforcement of the supremacy of the Constitution, its power to pass upon the constitutionality of Congressional legislation may fairly be termed of the lesser importance. During the first eighty years, only four Federal statutes were held unconstitutional, of which but two were of any importance; and even if the Court had possessed no power to determine the validity of either of these two, the Mandamus Act in Marbury v. Madison, and the Missouri Compromise Act in the Dred Scott Case, it cannot be said that the course of events would have been fundamentally affected. So with regard to the thirty-two Acts of Congress held unconstitutional between 1869 and 1917, with the possible exception of the decision in the Civil Rights Cases, the integral history of the country would have been little altered had the Court not possessed or exercised its power.[2] Probably the chief argument in favor of the possession of such power is the lack of uniformity of Federal law which would otherwise result, if each State Court should remain the final arbiter as to the constitutionality of Acts of Congress. An illustration of the unfortunate legal and financial complications and of the serious impairment of the functions of the Federal Government which might arise out of such a condition occurred in
- ↑ The Supremacy of the Judiciary, by A. Inglis Clark, Hare. Law Rev. (1908), XVII.
- ↑ From the October Term of 1889 to the October Term of 1917, "the Court declared only eighteen Acts of Congress unconstitutional in whole or in part, and but few of them were of such general importance as to call for extended attention." Judicial Control over Legislatures, by J. H. Ralston, Amer. Law Rev. (1920), LIV.
