Doesn’t the Supreme Court make the final determination on the constitutionality of an act?


No. Nowhere is the SCOTUS granted the sole authority to determine the extent of federal power. It is a nonsensical position, since the Supreme Court is itself a part of the federal government. It’s a little like letting a Tennessee player referee a basketball game between Kentucky and the Vols. In fact, the political society delegating the power retains the authority to judge the extent of that power and determine when an overreach exists. Jefferson makes this argument in the Kentucky Resolution of 1798.

The government created by this compact (the Constitution) was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party (the people of each state) has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Madison expounded on the idea in his Report of 1800.

However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.

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