tional tribunals of
the first instance. The significance of this plea should be emphasized
because the time was to come when the same interest would argue that for
the Supreme Court to take appeals from the state courts on any account
was a humiliation to the latter and an utter disparagement of State
Rights.

Even more important than the relation of the Supreme Court to the
judicial systems of the States was the question of its relation to the
Constitution as a governing instrument. Though the idea that courts were
entitled to pronounce on the constitutionality of legislative acts had
received countenance in a few dicta in some of the States and perhaps in
one or two decisions, this idea was still at best in 1787 but the germ
of a possible institution. It is not surprising, therefore, that no such
doctrine found place in the resolutions of the Virginia plan which came
before the Convention. By the sixth resolution of this plan the national
legislature was to have the power of negativing all state laws which,
in its opinion, contravened "the Articles of Union, or any treaty
subsisting under the authority of the Union," and by the eighth
resolution "a convenient number of the national judiciary" were to be
associated with the Executive, "with authority to examine every act of
the national legislature before it shall operate, and every act of a
particular legislature before a negative thereon shall be final" and to
impose a qualified veto in either case.

But, as discussion in the Convention proceeded, three principles
obtained clearer and clearer recognition, if not from all its members,
certainly from the great majority of them: first, that the Constitution
is law, in the sense of being enforcible by courts; secondly, that it
is supreme law, with which ordinary legislation must be in harmony to
be valid; and thirdly--a principle deducible from the doctrine of the
separation of powers--that, while the function of making new law belongs
to the legislative branch of the Government, that of expounding the
standing law, of which the Constitution would be part and parcel,
belongs to the Judiciary. The final disposition of the question of
insuring the conformity of ordinary legislation to the Constitution
turned to no small extent on the recognition of these three great
principles.

The proposal to endow Congress with the power to negative state
legislation having been rejected by the Convention, Luther Martin of
Maryland