ates, between citizens of the same State claiming lands
under grants of different States, and between a State, or the citizens
thereof, and foreign states, citizens, or subjects.

Such, then, is the verbal basis of the power of the courts, and
particularly of the Supreme Court, to review the legislation of any
State, with reference to the Constitution, to acts of Congress, or to
treaties of the United States. Nor can there be much doubt that the
members of the Convention were also substantially agreed that the
Supreme Court was endowed with the further right to pass upon the
constitutionality of acts of Congress. The available evidence strictly
contemporaneous with the framing and ratification of the Constitution
shows us seventeen of the fifty-five members of the Convention asserting
the existence of this prerogative in unmistakable terms and only three
using language that can be construed to the contrary. More striking
than that, however, is the fact that these seventeen names include fully
three-fourths of the leaders of the Convention, four of the five members
of the Committee of Detail which drafted the Constitution, and four of
the five members of the Committee of Style which gave the Constitution
its final form. And these were precisely the members who expressed
themselves on all the interesting and vital subjects before the
Convention, because they were its statesmen and articulate members. *

* The entries under the names of these members in the Index
to Max Farrand's "Records of the Federal Convention" occupy
fully thirty columns, as compared with fewer than half as
many columns under the names of all remaining members.

No part of the Constitution has realized the hopes of its framers more
brilliantly than has Article III, where the judicial power of the United
States is defined and organized, and no part has shown itself to be more
adaptable to the developing needs of a growing nation. Nor is the reason
obscure: no part came from the hands of the framers in more fragmentary
shape or left more to the discretion of Congress and the Court.

Congress is thus placed under constitutional obligation to establish
one Supreme Court, but the size of that Court is for Congress itself to
determine, as well as whether there shall be any inferior Federal Courts
at all. What, it may be asked, is the significance of the word "shall"
in Section II? Is it merely permissive or is it mandatory? And, in