It is idle, then, to say, that they may not interpose even in these cases, at least for the reason given. For the very foundation of the objection to such interposition, is, that as there is a common arbiter appointed to decide the case, the parties may not rightfully assume to decide it, each for itself.
The next answer to this objection is, that the evil complained of may be the act of the Judiciary itself, the enforcement of the Sedition law for example, or the application of the common law of England, as a criminal code, to the Citizens of the United States. Both these cases have occurred. Here, it would be monstrous, to refer to the Judiciary to decide whether the Judiciary itself had done right; and yet the objection applies equally to all cases.
Another answer is, that in this government, composed as it is of co-ordinate departments, there exists no reason why more respect should be paid to the acts of one of these departments, than to those of any other; and if it is admitted, that neither of these departments is bound by the act of its co-ordinate, it would be strange indeed to say, that the sovereign of all was bound by such an act. Now, the objection itself asserts, that the Judiciary is not bound by the acts of the Legislature or of the Executive; and no one, it is believed, will contend that either of the other departments is bound by the Judgements of the Judiciary, however obligatory these may be upon the parties.
I speak not of courtesy and respect, but of obligation merely. Should the Judiciary declare an act of the Legislature void, such a declaration, as I have already said, cannot repeal the law, although it may prevent its application to the particular case sub Judice. Congress may establish other Courts or other Judges to execute the law; or the President and Senate, in execution of such laws, may appoint additional Judges of the Supreme Court, who may differ from their associates and over-rule the past decision in the first new case, that comes before the Court. Nay the House of Representatives may impeach and the Senate condemn the Judges, for this very decision given in violation of the law enacted by them.
I do not mean to say, that any of these things would be right: but when reasoning upon the case of a violated Constitution, I
