r the protection of written constitutions;
not only so, but written constitutions, which have assumed to place
limits upon the power of majorities, acting at least through their
ordinary representatives. The construction of these constitutions, or
constitutional law as it is termed, forms a very important branch of
American jurisprudence. There have been, and are, in other countries,
charters, written or unwritten--organic or fundamental laws--but without
this distinguishing feature. The fundamental laws, thus established in
point of fact, emanate from the government, and have no sanction beyond
the oath of those intrusted with the administration of them, the force
of public opinion, and the responsibility of the representative to his
constituent. Our constitutions emanate not from the government, but the
State, the society, the creator of the government; and are, therefore,
in the strictest sense of the words, _leges legum_. The radical
principle of our system is, that the act of the legislative body, beyond
or contrary to the power confided to it by the Constitution, is a
nullity, and absolutely void. The courts must so pronounce, and the
executive must execute their judgments with the whole force of the
State. Upon such a subject it is best to use the very language--the
_ipsissima verba_--of John Marshall, as, at the same time, expressing
the doctrine with the greatest force and perspicuity, and presenting, in
the mere statement, the most convincing argument of its importance. "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 of
the very essence of judicial duty. If, then, the courts are to regard
the Constitution, and the Constitution is superior to any ordinary act
of the legislature, the Constitution, and not such ordinary act, must
govern the case to which they both apply. Those, then, who controvert
the principle that the Constitution is