Eakin et al. V. Raub et al.
GIBSON, J., dissenting.
It seems to me, there is a plain difference, hitherto unnoticed, between acts that are
repugnant to the constitution of the particular state, and acts that are repugnant to the
constitution of the United States; my opinion being, that the judiciary is bound to execute
the former, but not the latter.
I shall hereafter attempt to explain this difference, by
pointing out the particular provisions in the constitution of the United States, on which it
depends. I am aware, that a right to declare all constitutional acts void, without
distinction as to either constitution, is generally held as a professional dogma; but I
apprehend, rather as a matter of faith than of reason. I admit, that I once embraced the
same doctrine, but without examination, and I shall, therefore, state the arguments that
impelled me to abandon it, with great respect for those by whom it is still maintained. But
I may premise, that it is not a little remarkable, that although the right in question has all
along been claimed by the judiciary, no judge has ventured to discuss it, except Chief
Justice MARSHALL (in Marbury) and if the argument of a jurist so distinguished for the
strength of his ratiocinative powers be found inconclusive, it may fairly be set down to
the weakness of the position which he attempts to defend
Now, in questions of this
sort, precedents ought to go for absolutely nothing. The constitution is a collection of
fundamental laws, not to be departed from in practice, nor altered by judicial decision,
and in the construction of it, nothing would be so alarming as the doctrine of
which affords a ready justification for every usurpation that has not been resisted
Instead, therefore, of resting on the fact, that the right in question has
universally been assumed by the American courts, the judge who asserts it ought to be
prepared to maintain it on the principles of the constitution.
….The constitution and the
of the legislature to pass the act, may be in
collision; but is that a legitimate subject for judicial determination? If it be, the judiciary
must be a peculiar organ, to revise the proceedings of the legislature, and to correct its
mistakes; and in what part of the constitution are we to look for this proud preeminence?
Viewing the manner in the opposite direction, what would be thought of an act of