as impelled to
declare this provision of the act unwarranted by the Constitution and
therefore void. For the first time the Supreme Court asserted its power
to pronounce an act of Congress repugnant to the Constitution not to be
law, but void and of no effect. In substantiating its position, the
court did not inquire into the difficult question whether the framers of
the Constitution intended or expected the national judiciary to exercise
this authority. It was enough for the purposes of the court that the
Constitution was the supreme and paramount law of the land, established
by the people of the United States. The Constitution defines and limits
the powers of government it must then control any legislative act
repugnant to it. "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."

With equal certitude the court declared that it was the province and
duty of the judiciary 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 stood in opposition to the Constitution,
the court must decide which of these conflicting rules governs the case.
"This is of the very essence of judicial duty." Moreover, the judges may
not shut their eyes to the Constitution and see only the law, for they
are bound by oath to administer justice not according to the laws alone,
but "agreeably to the Constitution and the laws of the United States."
"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."

On two other occasions the hostility of the Republican Administration
provoked a trial of strength with the Federalist judiciary. The
impeachment in 1804 of John Pickering, District Judge in New Hampshire,
on charges of intoxication and habits unfitting him for his duties,
amounted to little short of a tragedy. When the trial opened, Judge
Pickering did not appear, but representations made by his son showed
beyond a doubt that he