“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.”

— John Marshall

5. U.S. (1 Cranch) 137, 177
Marbury v. Madison (1803)

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John Marshall 41

fourth Chief Justice of the United States 1755–1835

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“[T]he constitution controls any legislative act repugnant to it.... It is emphatically the province and duty of the judicial department to say what the law is.... 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 the very essence of judicial duty.... Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions... It would be giving the legislature a practical and real omnipotence... The judicial power of the United States is extended to all cases arising under the constitution.”

John Marshall (1755–1835) fourth Chief Justice of the United States

5. U.S. (1 Cranch) 137
Marbury v. Madison (1803)

“Whether a law be void for its repugnancy to the Constitution, is, at all times, a question of much delicacy, which out seldom, if ever, to be decided in the affirmative, in doubtful case. … But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.”

John Marshall (1755–1835) fourth Chief Justice of the United States

Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 128 (1810)

“It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. 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.”

John Marshall (1755–1835) fourth Chief Justice of the United States

5. U.S. (1 Cranch) 137, 180
Marbury v. Madison (1803)

“The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.”

John Marshall (1755–1835) fourth Chief Justice of the United States

5. U.S. (1 Cranch) 137, 177
Marbury v. Madison (1803)

“When we framed the Constitution, we adopted the British model. Therefore, the President acts as the crown. You see, Britain has no written constitution. So, there is nothing unconstitutional there. But in India we have a Constitution and any legislation even by Parliament contrary to the Constitution is void. As the Constitution now exists, the President has to follow the British precedent in many matters. Unfortunately, there is no British precedent in this matter.”

R. Venkataraman (1910–2009) seventh Vice-President of India and the 8th President of India

The Rediff Interview/R Venkataraman

“The Constitution was framed fundamentally as a bulwark against governmental power, and preventing the arbitrary administration of punishment is a basic ideal of any society that purports to be governed by the rule of law.”

William J. Brennan (1906–1997) American judge

Dissenting, McCleskey v. Kemp, 481 U.S. 279 (1987).

“An act against the Constitution is void; an act against natural equity is void.”

James Otis Jr. (1725–1783) Lawyer in colonial Massachusetts

Argument Against the Writs of Assistance (1761)

“A constitution is the property of a nation, and not of those who exercise the government. All the constitutions of America are declared to be established on the authority of the people. In France, the word nation is used istead of the people; but in both cases, a constitution is a thing antecedent to the government, and always distinct therefrom.”

Thomas Paine book Rights of Man

Part Two, Chapter III
1790s, Rights of Man, Part 2 (1792)

“If the courts have the final say-so on all legislative acts, and if no appeal can lie from them to the people, then they are the irresponsible masters of the people. In other words, those who take this position hold that the people have enough intelligence to frame and adopt a constitution but not intelligence to apply and interpret the constitution which they have themselves made.”

Theodore Roosevelt (1858–1919) American politician, 26th president of the United States

1910s, California's Policies Proclaimed (Feb. 21, 1911)

“This lesson was firmly in the minds of those who made the American Constitution. They proposed to adopt institutions under which the people should be supreme, and the government should derive its just powers from the consent of the governed. They were determined to be a sovereign people under a government having such powers as they from time to time should confer upon it by a written constitution. They did not propose to be under the tyranny of either the executive or the legislature.”

Calvin Coolidge (1872–1933) American politician, 30th president of the United States (in office from 1923 to 1929)

1920s, Ordered Liberty and World Peace (1924)

“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.”

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John Marshall 41

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