The Supreme Court of the United States is invested with the power to
declare, and has declared, acts of Congress passed with the concurrence
of the Senate, the House of Representatives, and the approval of the
President to be unconstitutional and void, and yet none, it is presumed,
can be found who will be disposed to strip this highest judicial
tribunal under the Constitution of this acknowledged power--a power
necessary alike to its independence and the rights of individuals.
For the same reason that the Executive veto should, according to the
doctrine maintained, be rendered nugatory, and be practically expunged
from the Constitution, this power of the court should also be rendered
nugatory and be expunged, because it restrains the legislative and
Executive will, and because the exercise of such a power by the court
may be regarded as being in conflict with the capacity of the people to
govern themselves. Indeed, there is more reason for striking this power
of the court from the Constitution than there is that of the qualified
veto of the President, because the decision of the court is final, and
can never be reversed even though both Houses of Congress and the
President should be unanimous in opposition to it, whereas the veto of
the President may be overruled by a vote of two-thirds of both Houses
of Congress or by the people at the polls.
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