highest court of law or equity of a state, in which a decision in
the suit could be had, where is drawn in question the validity of a
treaty or statute of, or an authority exercised under, the United
States, and the decision is against their validity, etc., may be
re-examined and reversed or affirmed in the Supreme Court of the
United States, upon a writ of error." Thus, as early as the year
1789, among the first acts of the government, the legislature
explicitly recognized the right of a State court to declare a
treaty, a statute, and an authority exercised under the United
States, void, subject to the revision of the Supreme Court of the
United States; and it has expressly given the final power to the
Supreme Court to affirm a judgment which is against the validity,
either of a treaty, statute, or an authority of the government.

I humbly trust, Mr. Chairman, that I have given abundant proofs from
the nature of our government, from the language of the constitution,
and from legislative acknowledgment, that the judges of our courts
have the power to judge and determine upon the constitutionality of
our laws.

Let me now suppose that, in our frame of government, the judges are
a check upon the legislature; that the constitution is deposited in
their keeping. Will you say afterwards that their existence depends
upon the legislature? That the body whom they are to check has the
power to destroy them? Will you say that the constitution may be
taken out of their hands by a power the most to be distrusted,
because the only power which could violate it with impunity? Can
anything be more absurd than to admit that the judges are a check
upon the legislature, and yet to contend that they exist at the will
of the legislature? A check must necessarily imply a power
commensurate to its end. The political body, designed to check
another, must be independent of it, otherwise there can be no check.
What check can there be when the power designed to be checked can
annihilate the body which is to restrain?

I go further, Mr. Chairman, and take a stronger ground. I say, in
the nature of things, the dependence of the judges upon the
legislature, and their right to declare the acts of the legislature
void, are repugnant, and cannot exist together. The doctrine, sir,
supposes two rights--first, the right of the legislature to
destroy the office of the judge, and the right of the judge to
vacate the act of the legislature. Yo