"Subject To The Jurisdiction" -- What Do The Words Mean?

President Trump, in his peculiarly Trumpian fashion, ignited a firestorm of debate and controversy when he speculated in an interview with Axios that he would end so-called "birthright citizenship" with an executive order. In the world according to Trump, he can end that practice with a single stroke of his pen.

Trump's speculation is controversial not because, as many commentators have suggested, the law surrounding birthright citizenship is settled and beyond contestation, but because in fact there are large swaths of gray surrounding the policy.  As I pointed out in my last posting, the existing case law is far narrower in its language and scope than many want to believe.

The one point of agreement on all sides is this: the nub of this question is the meaning of a particular phrase in Section 1 of the Fourteenth Amendment--"and subject to the jurisdiction thereof".  For clarity, here is the full first sentence of that section:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 

In order to fully apprehend the legal principles established by this sentence, we must first understand its grammar.  The subject of the sentence is "persons", the verb is "are"--present tense of the infinitive "to be"--and the modifiers of "persons" are "All", "born or naturalized in the United States", and "subject to the jurisdiction thereof." The complement to the verb is "citizens of the United States and of the State wherein they reside."

With this structure, "subject" is an adjective (because it modifies the noun "persons").  Here we must now ask the question: how does this adjective modify persons?  We can ascertain that by inspecting the other adjective and participle that also modify "persons", "born" and "naturalized".  An equivalent construction for each would be "All persons who are born..." and "All persons who are naturalized...." Given the parallel grammatical structure employed, we may apply this same alternate construction to "subject"--All persons who are subject to...."

That "subject" is an adjective is of crucial importance, because it governs what we can make of the prepositional phrase "to the jurisdiction thereof".  If "subject" were a verb, we would have to apply a transitive verb meaning, of which Merriam-Webster offers up three:

1a : to bring under control or dominion : SUBJUGATE 

b : to make (someone, such as oneself) amenable to the discipline and control of a superior 

2 : to make liable : PREDISPOSE 

3 : to cause or force to undergo or endure (something unpleasant, inconvenient, or trying)

However, as an adjective "subject" has these meanings:

1 : owing obedience or allegiance to the power or dominion of another

2a : suffering a particular liability or exposure

b : having a tendency or inclination : PRONE

3 : contingent on or under the influence of some later action

Which of these meanings do we apply to the first sentence of the Fourteenth Amendment?  The general principle is that dictionary definitions are arranged chronologically--that is, the oldest (and therefore the original) definition appears first, and subsequent definitions appear thereafter. Absent any clear contextual reference to infer otherwise, we should generally apply that first, or denotative, definition. Thus, in the Fourteenth Amendment, "subject to the jurisdiction thereof" means "owing obedience or allegiance to the power or dominion of the jurisdiction of the United States."

Moreover, we have positive proofs this is the correct definition.  One of the Fourteenth Amendment's primary authors, Senator Jacob Howard of Michigan, made this declaration regarding the phrasing:

The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.

Senator Lyman Turnbull, another of the principle framers of the Fourteenth Amendment, and the actual author of the "subject to the jurisdiction thereof" phrase, amplified Senator Howard's commentary thus:

The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.

From these proofs that "subject" is to be understood as "owing obedience or allegiance", we may also conclude the proper meaning of "jursidiction" in this regard is the second "the authority of a sovereign power to govern or legislate". The original definition of jurisdiction is focused on the operation of courts and judicial bodies, which is simply too narrow a definition to be coherently applied in this sentence.  

These definitions also comport with the notions of "subjectship" that formed the bulk of the reasoning in the pivotal Supreme Court Case United States v Wong Kim Ark (169 US 649 (1898)). Much of the reasoning in English common law in this realm dealt not with citizenship per se, but with subjectship--i.e., under what circumstances was a person deemed a subject of the British Crown?  

Interestingly, a number of legal commentators disregard both the grammatical construction of that first sentence in the Fourteenth Amendment and the substantive ramifications thereof.  Attorney and legal scholar James Ho, writing in the Los Angeles Times, offered this assessment:

When a person is "subject to the jurisdiction" of a court of law, that person is required to obey the orders of that court. The meaning of the phrase is simple: One is "subject to the jurisdiction" of another whenever one is obliged to obey the laws of another. The test is obedience, not allegiance. 

The "jurisdiction" requirement excludes only those who are not required to obey U.S. law. This concept, like much of early U.S. law, derives from English common law. Under common law, foreign diplomats and enemy soldiers are not legally obliged to obey our law, and thus their offspring are not entitled to citizenship at birth. The 14th Amendment merely codified this common law doctrine.

There are two problems with this view.  First there is the obvious contradiction when considering the particular case of the illegal alien: The dictate of the law--and therefore of the orders of any court--is that said illegal alien not be in within the borders of the United States at all; if the requirement is obedience, and the person refuses to obey this most basic of instructions, the clear implication is they are placing themselves beyond the obedience necessary for conferring birthright citizenship.

Further, this view ignores the implicit social contract in subjectship as defined by Sir William Blackstone and referenced in Wong Kim Ark (emphasis added):

Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. 

In other words, obedience and allegiance arise from the premise that the duty of the sovereign authority is to protect the inhabitants of the realm.  Yet the illegal alien is not protected by any sovereign authority--quite the contrary, if placed within the grasp of the sovereign authority he is presented with detention and deportation. If a person, at his birth, does not derive protection from the sovereign authority, how can there be a consequential owing of either obedience or allegiance, and thus a basis for bestowing citizenship?

Akhil Amar similarly ignores both the documented legislative background of the Fourteenth Amendment and the legal implications of the grammatical construction, even as he relies on the same formulation to (mis)state his case:

 ...the Fourteenth Amendment’s text is more capacious—speaking not just of African Americans, but of “[a]ll persons.” This sweeping language grants U.S. citizenship to everyone born here and subject to our laws. The only relevant exception today (given that Native Americans no longer live in the same kind of tribal regime that existed in the 1860s) is for those who owe their allegiance to another sovereign, such as the children of foreign diplomats.

Amar is relying on a specious inference that "subject to" relies on the secondary connotative meaning "suffering a particular liability or exposure." Even if we did not have the commentaries of the Fourteenth Amendment's authors declaiming this very posture, the grammatical construction of this first sentence within the Amendment simply does not allow for the expansive interpretation Amar desires. Again we are confronted with the paradox: if the test is obedience to the law, the illegal alien daily fails that test, for his presence is by definition a defiance of the law. If the test is allegiance, the illegal alien fails that test as well, by that same defiance. As a matter of law and of logic, if the illegal alien wishes to be subject to the laws of the United States, the first step he must take must necessarily be to remove himself from the United States.

As I have stated before, "...immigration is almost exclusively a matter of law, of what the law is, and what the law should be." Citizenship, birthright and otherwise, is likewise a matter of law--of specific law, of statutes, and precise language within the Constitution. All law is first and foremost an exercise in language--an assemblage of words whose meanings combine to elucidate the principles by which a society is to be governed.  As laws are devised in a specific place and time, forever fixed to that place and that time, so too is the language of the law fixed to that place and that time. It is quite proper to debate what the language of the law (and the law itself) should be, but that debate is fatally flawed if we conflate what the language is and what we desire the language to be.

If one wishes to discuss or debate a law, one must first understand the language of that law.  A law says whatever the words mean. This has always been the order of things; this shall always be the order of things.

President Trump's Radical Notion on Birthright Citizenship: Enforce The Law

Wong Kim Ark

Without a doubt, President Trump excels at one thing above all else: a perverse capacity to make liberal heads explode with a word. Witness his latest triggering of progressives in both government and the media with his contemplation of an executive order to curtail birthright citizenship.

"It was always told to me that you needed a Constitutional amendment–guess what? You don’t," Trump said. "Number one, you don’t need that. Number two, you can definitely do it with an act of Congress. But now they’re saying I can do it with just an executive order. Now, how ridiculous–we are the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits? It’s ridiculous. It’s ridiculous–and it has to end."

However, there is one important facet of President Trump's speculations the media shamefully neglects in its pearl-clutching about birthright citizenship: the actual state of the law.

United States v Wong Kim Ark (169 US 649 (1898)) was the case that brought legal clarification to the 14th Amendment's citizenship clause, and the meaning of the pivotal phrase "subject to the jurisdiction". The standard elucidated within Wong Kim Ark is that a child born within the United States of parents with permanent legal residence and a permanent domicile within the United States, can claim citizenship at birth.  Permanent legal residence excludes transient migrants, "birth tourists", and illegal aliens from this class of persons. Wong Kim Ark makes repeated reference to this distinction, and clearly establishes the distinction as relevant in determining upon whom birthright citizenship may be conferred.

The closest we come to a judicial ruling that erases the distinction between children born of legal immigrants vs illegal aliens is Plyler v Doe (475 US 202 (1982)).  In that decision, Justice William Brennan asserted in a footnote to the ruling that there was no discernible difference "between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful".

However, Plyler's concern was not citizenship, but the applicability of laws (and thus the 14th Amendment's stricture for the equal protection of the laws).  Certainly even illegal aliens charged with crimes are liable to arrest and prosecution under US law--in this regard Plyler's observation is almost common-sensical.  Moreover, Brennan's assertion draws upon language within Wong Kim Ark that implies equivalence between the phrases "subject to the jurisdiction" and "within the jurisdiction", yet ignores the repeated use of the term "resident alien".  

The US Customs and Immigration Services uses the term "resident alien" with respect to three categories of persons: Permanent Resident, Conditional Resident, and Returning Resident.  All three categories are categories of LEGAL immigrant status.  An "illegal alien" is not (nor can be understood to be) a "resident alien". 

Thus Brennan's assertion is flatly contradicted both by current US law and regulation as well as by the broader language of Wong Kim Ark.

Where does this leave Trump's proposed executive order?

Intrinsically, executive orders enjoy shaky legal foundations, simply because no executive order can withstand the passage of contravening legislation. If Congress passes a law that negates an executive order, there is no doubt but that the law will prevail.  Thus any executive order drafted by President Trump would, much like President Obama's execrable DACA order, be ever at the whim of subsequent presidents as well as the Congress.

However, the order President Trump has described would be addressing illegal aliens and transient migrants, neither of whom qualify as "resident aliens", which qualification is clearly established by Wong Kim Ark as the essential predicate for birthright citizenship.  Thus, the particulars of the proposed executive order would appear to be in line with existing law and the 14th Amendment, and would amount to little more than a directive to the Departments of Justice and State to stringently apply existing legal standards with regards to acknowledgment of birthright citizenship.  Such an order, while amenable to the legislative acts of Congress, is unquestionably within a President's scope of Constitutional authority to see that the laws are faithfully executed.

Contrary to the media hype, President Trump is operating within the scope of existing law. It is his opponents and the media who are seeking to unilaterally (and illegally) nullify existing law.

Justice Kennedy's Retirement Is A Reminder That Every Day Is A Time For Choosing

A great deal of speculation, pontification, and blatant posturing followed Justice Anthony Kennedy's June 27th announcement of his retirement from the Supreme Court. Predictions of a coming reversal of newly-won (some would say newly-created) civil rights abound. Celebrations of the first decidedly conservative Supreme Court in seventy years flow with equal abandon.

As is common when politics intersects the law, both sides are missing the point.

Justice Kennedy's retirement--as is the case with all outgoing Supreme Court justices--is a moment that calls each citizen to remember the role the Court plays not only in our government but in our society.  It is a reminder that our elected officials, our Presidents and Senators, are empowered to impact both government and society not only for this generation, but for all subsequent generations. If our elected officials typify the society we are today, justices illuminate what manner of society we will be tomorrow. The composition of the Supreme Court is not a "liberal" or "conservative" question, nor even a purely political question, but is an "American" question.

Justice Kennedy's retirement is an invitation to reread what the Constitution says about the Supreme Court, and understand what role it plays in Constitutional government.

The Supreme Court is the only court in the United States mandated by the Constitution (Article 3, Section 1):

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

The Supreme Court is an appellate court for almost all cases within Federal jurisdiction (Article 3, Section 2), " both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Appellate jurisdiction empowers the Court to review both the verdicts of lower courts within the Federal judiciary and their interpretations of Federal law, which includes assessment of the Constitutionality of Federal law.

Under the Constitution, the Supreme Court is the highest judicial authority. Its interpretations of Federal law are binding upon all Federal courts, and its rulings are applicable to the whole of the Federal government--as Chief Justice John Marshall wrote so powerfully in Marbury v Madison, "It is emphatically the duty of the Judicial Department to say what the law is." Yet it does not possess unlimited power or unlimited authority. The 11th Amendment sharply limits its jurisdictions where disputes involve a single state, and by inference John Marshall's own assessment of the role of the Court does not extend to saying what the law should be--that duty is reserved to the Congress.

The truth of the Supreme Court is that its Constitutionally-defined construction and jurisdiction are distinctly non-partisan and non-ideological. Political ideologies are the foundations of advocacy for what laws we should have, and what laws we should discard, but no advocacy can alter the text of the laws as they are written. The role of the Court is to apply the law--apply the letter of the law--to cases brought before it, and the law is neither liberal nor conservative; rather, the law merely is.

Naturally, both liberals and conservatives desire judges and justices who will interpret the law in ways that favor their political aims.  This has always been true, and it will always be true. It is also true there have been judges and justices who have contorted and distorted the law (including the Constitution), to arrogantly impose their views on society--such cases are etched permanently in our judicial comprehension: Dredd Scott v Sanford, Roe v Wade, Obergfell v Hodges. Yet the Constitution calls for a Court that rises above both partisan and personal ideology, that dispassionately reads the law as it is written and just as dispassionately applies it to the cases brought before it.

The Supreme Court is not merely the balancing third branch of the Federal government, acting as a brake upon the predations of both the legislative and executive branches against the rights of the people. By its explicit charter within the Constitution, it is the guarantor that the rule of law shall remain the foundation of this Republic. John Marshall was not the first to conceive the idea that no act of Congress could contravene the Constitution--the Kentucky and Virginia Resolutions argued that exact idea in much the same language as Marshall some five years prior to Marbury--but it was the Court's finding in Marbury that put the matter beyond all dispute, "...an act of the Legislature repugnant to the Constitution is void." The Court is this nation's assurance that not even the Congress can contradict the Constitution.

Thus it is that the promise of the Court, if not always its legacy, is that, under our Constitution, within the limits of the Constitution, the rights of all people shall always prevail.  The Court thus becomes the embodiment of the Constitutional ideal, that this Republic be governed by laws rather than men.  This is the Court we can have, so long as sober and serious justices occupy its bench.

Yet justices are but men, and they are appointed by men, who are in turn elected by men. So it is that Justice Kennedy's retirement is a reminder to us all that Constitutional government only works when We The People are prepared to do the work of governance.  We will only have the Court the Constitution promises us if we elect Presidents and Senators who understand, appreciate, and esteem that promise, and who are serious in their oath of office to ensure they appoint justices who will give us that Court.

Justice Kennedy's retirement, as is the retirement of every justice, is the periodic reminder that, in a republic, every day is a time for choosing. Every election is a matter of consequence, and every vote is of significance. Justice Kennedy's retirement is our periodic invitation to engage with our government, with both the President and the Senate, to petition that we might get the justices and the Court the Constitution has promised to us.

The Court may say what the law is, but ultimately it is We The People who will say what the law should be, and it is We The People who will say how the Court shall be. As Justice Kennedy closes his long and distinguished tenure on the bench, the best honor we could show him would be to remember this simple truth, and to put this simple truth into action, today, and every day.

FACT: Immigration Is About The Law, Not Justice

Immigration is a contentious issue, not just in the United States but throughout the Western world. Immigration is a central theme of Hungarian President Viktor Orban's re-election campaign. Immigration is a major divide within the American polity, with states such as Texas and Arizona enthusiastically supporting President Trump's call for National Guard troops to protect the US border with Mexico, while states such as California applaud the efforts of state and local officials to thwart enforcement and deportation actions by ICE.

Amazingly, despite all the rhetoric coming from all sides of the immigration debate, very little attention is given to what should be the core of the debate--the state of immigration law.  More than any other public policy question, immigration is almost exclusively a matter of law, of what the law is, and what the law should be.

What the law is:

• Article I, Section 8, Paragraphs 3 and 4 of the United States Constitution explicitly charges the Congress with drafting immigration laws.
  
  
• The body of US Immigration Law is codefied under Title 8, Chapter 12 of the US Code.
  
  
• Every President, upon inauguration, swears an oath to "preserve, protect, and defend the Constitution of the United States", as mandated in Article 2 Section 1 of the Constitution. Every President is explicitly named as Commander-In-Chief of the Armed Forces in Article 2 Section 2.
  
  
• The Constitution is the supreme law of the United States. Article 6 of the Constitution makes this explicit, and explicitly binds all public officials to respect that supremacy.

Americans can--and should--debate what the substance of immigration law should be. That is our right and our duty as citizens.  Yet it is absurd and even asinine to ignore or deny what the substance of immigration law is. 8 USC §1151 establishes explicit numerical limits on immigration. 8 USC §1182(f) specifically empowers the President to bar certain classes of aliens "by proclamation" (meaning no Congressional involvement is required or even allowed). Whether these laws are good or bad, wise or unwise, just or unjust is immaterial. These are the laws we have. These are the laws government officials take an oath to enforce. On this point there can be no debate, there is no argument.

Nor can there be any debate that every US President has the right and responsibility to secure the borders of the United States. Every President is duty bound from his oath to defend the Constitution, and that necessarily includes defending the territory of the United States. Every President is explicitly named as Commander-In-Chief of the Armed Forces in order to secure that defense.

No immigrant has any right or expectation of admission into the United States. 8 USC §1361 explicitly assigns to the immigrant the burden of proving he or she is eligible for admission. Lacking such proof, the mandate of the law is that said immigrant be denied entry into the United States. Congress has the power to alter that mandate, but thus far it has declined to do so.

No immigrant can simply cross the border into the United States, but must enter through established checkpoints. 8 USC §1325 makes it a crime to enter the United States but through established checkpoints. 8 USC §1326 enhances the sanctions for repeat violations of this statute. Congress can alter these statutes but thus far has declined to do so.

Laws can be changed. Where laws are seen as unjust one hopes they will be changed. Yet until they are changed, the laws on the books are the laws of this land, and, as such, they must be enforced. If we are to remain a nation of laws, these laws must be enforced until they are changed.

On this, there can be no debate.

A Law Repugnant To The Constitution Is Void -- John Marshall's Path To Nullification

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.

Marbury v. Madison (5 US 137), 1803 

With this sentence in his historic ruling in the Supreme Court case Marbury v. Madison, Chief Justice of the United States John Marshall established the power of the Supreme Court to identify whether an act of Congress was unconstitutional, and thus lacked the force of law. But did Chief Justice Marshall also set forth a legal doctrine whereby anyone, a state government or even the people at large, might be able to similarly overrule the Congress? A close reading of this historic ruling indicates that he did.

The doctrine of judicial review was by no means novel in Marshall's day (indeed, from extemporaneous notes during the Constitutional Convention in 1787, we know of 11 delegates who specifically commented on the judicial review as a power of the court). The capacity of courts to review and comment upon laws was well established in the state of jurisprudence at the time,  although nowhere in the text of the United States Constitution itself is the power mentioned. The judicial power is described explicitly in Article III, Section 2, paragraph 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—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.

The Constitution thus established the scope of "the judicial Power", but chose not to define the nature of that power. Marshall, in formulating the reasoning within Marbury, opted to fill in that gap, arguing that "It is emphatically the province and duty of the judicial department to say what the law is." The court, in Marshall's view, is called upon to state the substance of a law (and, by extension, the limits of a law). Marshall actually engaged in some legal hair-splitting, arguing that while Marbury was certainly entitled to a legal remedy in his case, the language of the Constitution was at odds with the language of the Judicial Act of 1789, which was the enabling act that created the nascent federal court system for the United States.

Language lies at the heart of the Marbury ruling, for Marshal also wrote that "It cannot he presumed that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible unless the words require it." Every word within the Constitution is significant, according to Marshall, and has meaning. But if words are essential to the Constitution, they are equally essential to Marshall's rendered opinion. Consider now the meaning of "province" and "duty" as Marshall applied them:

It is emphatically the province and duty of the judicial department to say what the law is.

province - proper or appropriate function or scope

duty - a moral or legal obligation; the force of moral obligation

Marshall asserted that not only are courts well equipped to state clearly the meaning and intent of laws, they are obligated to do exactly that. Moreover, by declaring the role of the court to say "what the law is," Marshall proposed that the state of the law--of any law--is pre-existing. A court merely discerns what is already there.

Marshall did not arrogate to the Supreme Court any special power to overrule Congress' power to enact laws.  Rather, his formulation was a mere expression of a pre-existing reality: a law that is inherently at odds with the dictates of the Constitution lacks any validity or operative force. Marshall's notion of judicial review was not that courts are granted authority to invalidate laws on the basis of Constitutional compliance, but merely that they are endowed with the competency to articulate whether or not a law is invalid because of Constitutional conflict. What Marshall did claim for the courts was a duty to render that articulation--according to Marshall's thesis, the Marbury ruling was a requisite operation of the courts, something that had to be said, and no more.

As Marshall did not arrogate to the courts the power to render laws unconstitutional, neither did he derogate the capacity of other entities--the states or even the people--to identify laws as being unconstitutional.  Marshall's claim, as articulated within Marbury, was not of power but of duty, but nowhere in the Marbury ruling is there any language which makes either the duty or the competency exclusive to the courts. Given that Marshall was already consciously micro parsing the text of the Constitution as well as the Judicial Act of 1789, it hardly seems likely that he would have been so semantically sloppy as to fail to incorporate exclusive language into the Marbury ruling had he been so inclined. The question of whom besides the courts might be possessed of that competence is neither asked nor answered within the ruling.

Yet on one point Marshall left absolutely no room for debate: any law which is contrary to the Constitution is by its very nature without authority. Such a law is void, lacking both legal form and legal substance. With or without a ruling by a court, such is the nature of law, according to Marshall.

As a direct result, not only did Marshall affirm judicial review to be an organic part of the role of the judiciary, he also articulated a basic framework of nullification. A legislature can only pass laws in accordance with its authority, as rendered by a governing constitution; it is morally impossible, under Marshall's logic, for a legislature to pass laws beyond the scope of its authority--should it put statutes down in writing which are at odds with the governing constitution, such statutes are from their moment of creation simply words without form, without meaning, and without force of law. No ruling of the Supreme Court, or any court, is needed to void such statutes; conflict with the governing constitution alone is sufficient.

Whom besides the courts might have the competence to articulate a law's invalidity? Within the framework of the Constitution, certainly the individual states can make a strong claim to such competence, for the Tenth Amendment reserves an expansive and indeterminate set of powers to the several states and to the people of the United States:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

As the Constitution is silent on whom enjoys the capacity to articulate a law's invalidity, the Tenth Amendment offers at least a presumption that such capacity is given to the states, inasmuch as the Constitution failed to prohibit that capacity to the states

The Constitution itself states explicitly that it is intended to be the supreme law of the land. There is no statute nor charter within the United States which is superior to the Constitution. As the Preamble states most eloquently, it is by the Constitution--and by the Constitution alone--that the United States is given legal form, substance, and reality.  Any legislative act not in accordance with the Constitution lacks both substance and reality. 

As John Marshall so eloquently illuminated in Marbury v Madison, the Supreme Court is charged with stating what the law is. It is therefore given to the rest of the United States--to the several states and ultimately to "We The People"--to state what the law is not.