Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol II).djvu/553

 CH. XV.] of this important question, as well as a distinct enunciation of the course, which my sense of duty will require me to pursue.

"The ordinance is founded, not on the indefeasible right of resisting acts, which are plainly unconstitutional and too oppressive to be endured; but on the strange position, that any one state may not only declare an act of congress void, but prohibit its execution,—that they may do this consistently with the constitution,—that the true construction of that instrument permits a state to retain its place in the Union, and yet be bound by no other of its laws, than those it may choose to consider as constitutional. It is true, they add, that to justify this abrogation of a law, it must be palpably contrary to the constitution; but it is evident, that to have the right of resisting laws of that description, couplet! with the uncontrolled right to decide, what laws deserve that character, is to give the power of resisting all laws. For, as by the theory there is no appeal, the reasons alleged by the state, good or bad, must prevail. If it should be said, that public opinion is a sufficient check against the abuse of this power, it may be asked, why it is not deemed a sufficient guard against the passage of an unconstitutional act by congress. There is, however, a restraint in this last case, which makes the assumed power of I state more indefensible, and which does not exist in the other. There are two appeals from an unconstitutional act passed by congress,—one to the judiciary, the other to the people, and the states. There is no appeal from the state decision in theory, and the practical illustration shows, that the courts are closed against an application to review it, both judges and jurors being sworn to decide in its favour. But reasoning on this subject is superfluous, when our social compact in express terms declares, that the laws of the United States, the constitution, and treaties made under it, are the supreme law of the land; and for greater caution adds, 'that the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.' And it may be asserted without fear of refutation, that no federative government could exist without a similar provision. Look for a moment to the consequence. If South-Carolina considers the revenue laws unconstitutional, and has a right to prevent their execution in the port of Charleston, there would be a clear constitutional objection to their collection in every other port, and no revenue could be collected any where; for all imposts must be equal. It is no answer to repeat, that an unconstitutional law is no law, so long as the question of its legality is to be decided by the state itself; for every law, operating injuriously upon any local interest, will be perhaps thought, and certainly represented, as unconstitutional, and, as has been shown, there is no appeal.

"If this doctrine had been established at an earlier day, the Union would have been dissolved in its infancy. The excise law in Pennsylvania; the embargo and non-intercourse law in the Eastern states; the carriage tax in Virginia, were all deemed unconstitutional, and were 69