But judicial power has seized upon a quality peculiar to the American policy, to transform itself into a political department, and to extend its claims far beyond precedent. All our governments are limited agencies; others are universally or generally unlimited sovereignties. Legislation, under our policy, is subject to constitutional restrictions; according to the policy of other nations, it is the expression of the sovereign's will. In one case, legislation, which exceeds its agency or violates constitutional limits, is void; in the other, such an excess cannot happen. Being void, no publick functionary or private citizen ought to execute it; therefore judges, jurymen or officers of any other description, are bound to determine whether the instrument exhibited to them as law, be law.[1] But all these descriptions of persons are bound by the laws of sovereign governments, and have no power, direct or indirect, to determine upon the validity of a law. None of them, therefore, can become a political department. Whereas, if the judges of the United States can acquire the exclusive right of declaring a law void, without any responsibility or mode of defeating the declaration, they must become a political department of great importance. An intention of creating judicial power into a political department, as a barrier against legislative usurpation, is the inference drawn by itself, from its right to refuse to execute unconstitutional laws; but this right belongs to juries, to officers, and to every citizen. It flows from the limited nature of our governments, contrived, not to increase the power of judges or juries, but to secure the sovereignty of the people. This would not be secured, by inferring from the limitation of legislative power elected by the people, an unlimited judicial power not elected by the people. To distrust and limit responsible and removable agents, and trust without limit irresponsible and immoveable, could never have been intended.
- ↑ If this reasoning is correct, the courts erred in forbidding juries to consider the constitutionality of the sedition law. It was not a question as to the construction of the law, but whether it was really law or not.
