the constitution or not, because if it does not violate the constitution the court must give effect to it as law, while if it does violate the constitution it is no law at all and the court is not at liberty to give effect to it.  The courts do not render decisions like imperial rescripts declaring laws valid or invalid.  They merely render judgment on the rights of the litigants in particular cases, and in arriving at their judgment they refuse to give effect to statutes which they find clearly not to be made in pursuance of the constitution and therefore to be no laws at all.  Their judgments are technically binding only in the particular case decided, but the knowledge that the court of last resort has reached such a conclusion concerning a statute, and that a similar conclusion would undoubtedly be reached in every case of an attempt to found rights upon the same statute, leads to a general acceptance of the invalidity of the statute.

There is only one alternative to having the courts decide upon the validity of legislative acts, and that is by requiring the courts to treat the opinion of the legislature upon the validity of its statutes, evidenced by their passage, as conclusive.  But the effect of this would be that the legislature would not be limited at all except by its own will.  All the provisions designed to maintain a government carried on by officers of limited powers, all the distinctions between what is permitted to the national government and what is permitted to the state governments, all the safeguards of the life, liberty and property of the citizen against arbitrary power, would cease to bind Congress, and on the same theory they would cease also to bind the legislatures of the states.  Instead of the constitution being superior to the laws the laws would be superior to the constitution, and the essential principles of our government would disappear.  More than one hundred years ago, Chief Justice Marshall, in the great case of Marbury vs.  Madison, set forth the view upon which our government has ever since proceeded.  He said: 

“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 limit 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.

“Between these alternatives, there is no middle ground.  The constitution is either a superior, paramount law, unchangeable by ordinary