“Repugnant to the Constitution”

As you may have already noticed, a lot is said on this blog about authority, Constitutional authority in particular. The question we ultimately face with such questions of authority is whether we shall have a limited government, or one free to behave however it finds convenient – essentially tyranny. Common sense would dictate that there is no point in having a Contitution if it is not followed, but legal precedent also holds up the invalidity of Congressional or Executive acts that violate the Constitution.

In fact, such thinking goes all the way back to Marbury v. Madison (emphasis mine):

“Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.”

That seems simple enough, but what about acts passed that do contradict the written constitution? To continue the above quotation:

“If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on.”

Again, the Constitution is the supreme law of the land, and anything Congress or the president do in violation of it is not true law.