For over a 100 years attorneys, judges and many others have been professing that only courts, and ultimately the U.S. Supreme Court, can determine what is unconstitutional. Today, many legislators often say: We don't need to determine if a Bill is unconstitutional because after it becomes a law, eventually someone will challenge it in court and the courts will do their duty to judge the law.

To support their position, those that claim that only the courts can determine what is unconstitutional generally point to the U.S. Supreme Court case opinion in MARBURY v. MADISON, 5 U.S. 137 (1803). However, this is not the correct conclusion drawn from the opinion written by Chief Justice Marshall in this case. At the very end of his opinion, Chief Justice John Marshall states:

"Why does a judge swear to discharge his duties agreeably to the Constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.

It is also not entirely unworthy of observation that, in declaring what shall be the Supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument."

Chief Justice Marshall was correctly saying that, like everyone in government, those in the judicial branch, because of their "oath of office", have a required constitutional duty to examine and determine if their actions are constitutional or unconstitutional. To not so discharge their duties "is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime."

We also must remember that it is settled law that an unconstitutional "law" is not law.

"The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.