The Courts have advanced the theory that it is their province, in case they are of the opinion that the Legislature has erred in regard to a Constitutional question, to nullify the Legislative act by a judicial decision. This doctrine has no foundation whatever in the Constitution, it has no foundation in the common law, it has no foundation in reason (for the common law is "the perfection of reason"), and it has no other foundation than the dictum of the Courts themselves.

If the Courts possess the power to nullify a law of the Legislature by a judicial order, then the Legislative and the judicial branches are not coordinate branches --- but the legislative branch is subordinate to the judicial.; Such a doctrine "were to set the judicial power above that of the legislative, which would be subversive of all government." (1 Blackstone, 91) If the Courts, as claimed by them, possess the power to declare an act of there Legislature void, then no enactment of the Legislature can be a law without the ultimate consent of the Courts. If this doctrine be correct, if we are finally to look to the Courts and not to the Legislature for the law, the Legislature necessarily becomes an useless appendage of government. We might as well at once dispense with it and let the Courts at first declare the law. It would be productive of much less confusion. And if there be no Legislature there need be no Executive. The officers of the Court could enforce the law of the Court. Then we would have in name what we now have in truth, if this doctrine of the courts be the correct doctrine, not a constitutional government of three separate and co-ordinate branches, but that very work form of tyranny --- the government of a judicial oligarchy.

The Courts have assumed that the question as to whether a statue was constitutional or not is a judicial question. This is very clearly a mistake. It is a legislative question. The member of the Legislature, as well the Judges of the Courts, before entering upon their duties take an oath to support the Constitution of the State. Hence, in obedience oath to support the Constitution of the State. Hence, in obedience to this oath, whenever a bill is presented, the question is at once raised in the Legislature as to whether it is constitutional or not. If it is a necessary measure, and if in the judgment of the Legislature it is constitutional they pass it and it becomes a law, and their judgment in regard to its constitutionality is a final judgment (subject only to the revision of the people who make the Constitutions), and it is conclusive upon the other departments. The common law doctrine, which recognizes as a legislative prerogative the determination of the constitutionality of laws in absence of the Courts, is the law of the land to-day, and hence the Legislature of the State like the Parliament in England is the rightful judge as to whether a law is Constitutional or now.

The Courts have no appellate legislative power under the Constitution, to revise the judgment of the Legislature in this regard. And when they claim this right, it is in defiance of a rule which in regard to themselves they obey. It is a rule of law recognized by the Courts, that when a Court has jurisdiction its judgment is final and conclusive except where appeal is given by law. But in relation to the Legislature because it is its duty, to pass upon the constitutionality of every measure brought before it. It must necessarily do so. It therefore has justification of this very question and inasmuch as there is no appellate legislative power given by the Constitution to the Courts, the judgment of the Legislature is final, and according to their own rule, is conclusive upon them. The question as to whether a law is constitutional or not is a legislative question and the decision of the Legislature is a binding upon the Courts as it is upon the Executive or upon the people. In order to further show that under our Constitution such decision is final it is but necessary to consider that provision in regard to the passage of a law over the be to of the Executive .Let it be supposed that a bill is passed which in the judgment of the Executive is plainly and palpably in violation of the Constitution. He vetoes the bill and gives the reasons why, in his judgment it is unconstitutional and returns it to the Legislature. In the opinion of two-thirds of each house the bill is constitutional, and it is therefore passed over his veto, and thereupon the Constitution declares that "it shall become a law."

Has the Executive a right to disregard this law and treat it as a nullity because in his judgment it is unconstitutional? There is no warrant for in the Constitution. Have the Judges a right to disregard the law, and treat it as a nullity because in their judgment it is unconstitutional? There is no warrant for it in the Constitution. But suppose, as is the frequent custom, this question is brought before the Courts. They pass upon the statute, and declare, as is the increasing wont of the Courts, that it is contrary, in their judgment, to the Constitution and therefore that it is no law. In that event what is the duty of the Executive? Here is the plain mandate of the Constitution declaring that statute to be a law, and here is the decision of the courts declaring it to be a law, and here is the decision of the courts declaring it to be no law. His duty, under his solemn oath, is plain.

The mandate of the Constitution is higher than the mandate of the courts. The Constitution must be obeyed and the law must be enforced. Its operation must not be suspended but by the act of the Legislative Assembly. Nor is there any warrant in the Federal Constitution for a the power assumed by the Courts to declare an enactment of the Legislative Assembly void. The second Section of Article III of the Federal Constitution, as presented to the Convention which framed it, by the committee of five declared that "the judicial power shall extend to all cases arising under the laws of the United States." When the motion was made to add the words "the Constitution," objection was raised because it was thought "it was going too far to extend the jurisdiction of the Courts generally to ashes arising under the Constitution and that it ought to be limited to cases of a judiciary nature." The motion was agreed to nem con, "it being generally supposed that the jurisdiction given was constructively limited to cases of a judiciary nature" (5 Elliott, 483). The leading med of that Convention were common law lawyers, and when it was generally supposed that "the jurisdiction given was constructively limited to cases of judiciary nature," it is beyond all question that the jurisdiction referred to was the "jurisdiction" of the common law and was not broad enough to authorize the Courts to declare and act of the Legislature void, for at that time to Court where the common law prevailed, or no Court of any civilized country in all Christendom ever had deemed its jurisdiction ample enough to amend or nullify a law of the Legislature by a judicial decision.

This doctrine, founded alone upon the decisions of Courts, which dates back only a hundred years, which is, as we have seen, without warrant either in the State of Federal Constitution, or in the common law, or in reason, is based by the Courts upon the supposed necessity in a Government limited by a written Constitution, of the lodgment somewhere of the power to corrector and restrain any infraction by the Legislature, of the fundamental law of the land, and that necessarily it must inhere in the judiciary. But there cannot be discovered either in the Federal or State Constitution any incline of the theory that two of the three separate departments of Government are fallible and that the third is infallible and should therefore dominate over the other two.

The Judges like Legislators are men, and as such are fallible. They are as liable to violate the Constitution as Legislators. In fact, in regard to this very act, decided by the Court to be unconstitutional, the best standard authorities sustain the Legislature and not the Courts. (Cooley of Constitutional Limitations, 601). And the history of State and Federal Legislation for the last hundred years disclose no such bold and palpable infraction of the Constitution as has been recently exhibited by the Supreme Court of the United States in a remarkable decision, in which by a course of reasoning that would be ludicrous if the drift of it was not alarming, it ruthlessly broke down that Constitutional barrier which heretofore has prevented a State from being sued. (114 U. S., 269). There is a corrective for any disregard of the fundamental law by the Legislature, but it is with the people and not with either of the other co-ordinate branches of Government.

If any Legislators violate the Constitution, the people which are sovereign, will retire them to private life and remedy the wrong which has been committed, by repealing the unconstitutional law. The people who make the Constitutions are its rightful interpreters. This is the true theory of our Government. It is far superior to the theory of the Courts that they can correct legislation and that their interpretation is final and the conclusive. This Court theory not only shackles legislative action but it is a throttle upon the popular will. By it the people can never give expression to their sovereign will as to a Constitutional question in evolved in a particular law. The Courts claim that they have the final decision, instead of the sovereign whose servants they are. This claim is an usurpation of power. It is tyranny.