unity, to ensure
proper respect for the courts, seems highly improbable. In fact, no
course could be suggested which would be more likely in the end to bring
them into disrepute.[99]

It is interesting to observe that while the Supreme Court of the United
States has not hesitated to veto an act of Congress, "no treaty, or
legislation based on, or enacted to carry out, any treaty stipulations
has ever been declared void or unconstitutional by any court of
competent jurisdiction; notwithstanding the fact that in many cases the
matters affected, both as to the treaty and the legislation, are
apparently beyond the domain of Congressional legislation, and in some
instances of Federal jurisdiction."[100]

Why has the Federal Supreme Court freely exercised the power to annul
acts of Congress and at the same time refrained from exercising a like
control over treaties? The Constitution makes no distinction between
laws and treaties in this respect. It provides that "the judicial power
shall extend to all cases, in law and equity, arising under this
Constitution, the laws of the United States, and the treaties made, or
which shall be made, under their authority."[101] If this provision is
to be interpreted as conferring on the Federal courts the power to
declare acts of Congress null and void, it also confers the same power
in relation to treaties. Moreover, the Supreme Court has claimed, and
has been conceded, the right to act as the guardian of the Constitution.
The authority thus assumed by the Federal judiciary can be justified, if
at all, only on the theory that the Constitution limits all governmental
powers, and that it is the duty of the Supreme Court to enforce the
limitations thus imposed by declaring null and void any unconstitutional
exercise of governmental authority.

Not only in the Constitution itself was no distinction made between laws
and treaties in relation to the power of the judiciary, but the same is
true of the Judiciary Act of September 24, 1789, which provided that
where the highest court in a state in which a decision in the suit could
be had decides against the validity of "a treaty or statute of, or an
authority exercised under, the United States," such judgment or decree
"may be re-examined, and reversed or affirmed in the Supreme Court [of
the United States] on a writ of error." The right of the Federal Supreme
Court to declare both laws and treaties null and void was thus clearly
and unequivoca