As regards the expediency of granting to the courts rather than to the legislature itself the final power of construing the Constitution there would seem to be little doubt, though there are indeed some who still question it.4

3 It is generally stated that the power of the courts to declare void unconstitutional laws is an implied one and not an expressly granted power. Mr. Brinton Coxe, however, in his interesting work, Judicial Power and Unconstitutional Legislation, argues that the power is expressly given in the clauses which have been quoted in the text, - not expressly in the sense of being unequivocally stated in so many words, but as being necessarily intended by the words used, and not implied as a means of rendering effective some other expressly granted power. In other words, he says in effect, that the power is expressly given even though a careful examination of the text is required to determine the fact. To the author, however, it seems more satisfactory to hold the power an implied one - implied from the express authority given to the federal courts to adjudicate all cases arising under the Constitution which is declared to be the supreme law of the land.

That it was the possible absorption of undue powers by the legislature which the constitutional fathers expressly feared, there is abundant evidence in the records of their views which have been preserved. The following is but one of many similar quotations that might be made. In the Federalist,5 Madison writes: "In a government where numerous and extensive prerogatives are placed in the hands of an hereditary monarch, the executive department is very justly regarded as the source of danger and watched with all the jealousy which a zeal for liberty ought to inspire. . . . But in a representative republic, where the executive magistracy is limited both in the extent and the duration of its power; and where the legislative power is exercised by an assembly which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength, which is

4 See for example American Law Review, XL, 356, article entitled "The Great Usurpation," and North American Review, August 16, 1907, article entitled " Judicial Nullification of Acts of Congress."

5 No. XLVIII.

The argument, upon grounds of expediency, for giving the power to the courts is stated by Webster and Kent as follows: Webster says: "It cannot be denied that one great object of written constitutions is to keep the departments of government as distinct as possible; and for this purpose to impose restraints designed to have that effect. And it is equally true, that there is no department on which it is more necessary to impose restraints than the legislative. The tendency of things is almost always to augment the power of that department in its relation to the judiciary. The judiciary is composed of few persons, and those not such as mix habitually in the pursuits and objects which most engage public men. They are not, or never should be, political men. They have often unpleasant duties to perforin, and their conduct is often liable to be canvassed and censured, where their reasons for it are not known, or cannot be understood. The legislature bolds the public purse. It fixes the compensation of all other departments; it applies, as well as raises, all revenue. It is a numerous body and necessarily carries along with it a great force of public opinion. Its members are public men, in constant contact with one another, and with their constituents. It would seem to be plain enough that, without constitutional provisions which should be fixed and certain, such a department, in case of excitement, would be able to encroach on the judiciary. Therefore is it. that a security of judicial independence becomes necessary." Works, III, 29.

Kent declares: "From the mass of powers necessarily vested in the legiclature, and the active and sovereign nature of these powers; from the sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions by all the means which reason prescribes, it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. . . . Its constitutional powers being at once more exclusive and less susceptible of precise limits, it can, with greater facility, mask under complicated and indirect measures, the encroachments that it makes on co-ordinate departments."