Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/442

 434, as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments for violating what they swear to support! The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words, 'I do solemnly swear, that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as ――― according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States.' Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

"It is also not entirely unworthy of observation, that in declaring, what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only, which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."

In the Virginia Convention, Mr. Patrick Henry (a most decided opponent of the Constitution of the United States) expressed a strong opinion in favour of the right of the judiciary to decide upon the constitutionality of laws. His fears were, that the national judiciary was not so organized, as that it would possess an independence sufficient for this purpose. His language was: "The honourable gentleman did our judiciary honour in saying, that they had firmness enough to counteract the legislature in some cases. Yes, sir, our judges opposed the acts of the legislature. We have this land-mark to guide us. They had fortitude to declare, that they were the judiciary, and would oppose unconstitutional acts. Are you sure, that your federal judiciary will act thus? into action, must proceed with competent power, if required to correct the error, or subdue the oppression of the other branches of the government. Fortunately