Court has sole authority to
decide upon the constitutionality of the acts of Congress. It was so held,
for the first time, in the year 1803, in the case of Marbury _v._ Madison,
by Chief Justice Marshall and his associates; and that decision, though
resisted at the time, has long been accepted by the country as a whole.
But this case did not arise until several years after the Kentucky
Resolutions were written. Moreover, Marshall was an extreme Federalist,
and his view was by no means the commonly accepted view. Jefferson scouted
it. He protested all his life against the assumption that the Supreme
Court, a body of men appointed for life, and thus removed from all control
by the people, should have the enormous power of construing the
Constitution and of passing upon the validity of national laws. In a
letter written in 1804, he said: "You seem to think it devolved on the
judges to decide the validity of the sedition law. But nothing in the
Constitution has given them a right to decide for the executive more than
the executive to decide for them. But the opinion which gives to the
judges the right to decide what laws are constitutional and what not--not
only for themselves in their own sphere of action, but for the legislature
and executive also in their spheres--would make the judiciary a despotic
branch."(3)

In the Kentucky resolutions, Jefferson argued, first, that the
Constitution was a compact between the States; secondly, that no person or
body had been appointed by the Constitution as a common judge in respect
to questions arising under the Constitution between any one State and
Congress, or between the people and Congress; and thirdly, "as in all
other cases of compact among powers having no common judge, each party has
an equal right to judge for itself, as well of infractions as of the mode
and measure of redress." It was open to him to take this view, because it
had not yet been decided that the Supreme Court was the "common judge"
appointed by the Constitution; and the Constitution itself was not
explicit upon the point. Moreover, the laws in question had not been
passed upon by the Supreme Court,--they expired by limitation before that
stage was reached.

It must be admitted, then, that the Kentucky resolutions do contain the
principles of nullification. But at the time when they were written,
nullification was a permissible doctrine, because it was not certainly
excluded by the Constitution. In 1803, as