490
Interpreting and Preserving the Constitution
he has firmly made up his mind that the proposed law is not within
the powers of the general government, he may and he ought to vote
against it, notwithstanding [that] an opinion to the contrary has been
pronounced by the Supreme Court. It is true that he may very probably yield up his preconceived opinions in deference to that of the Court,
because it is the tribunal especially constituted to decide the questions
in all cases wherein it may arise, and from its organization and character
is peculiarly fitted for such inquiries. But if a member of Congress, or
the President, when acting in his Legislative capacity, has, upon mature
consideration, made up his mind that the proposed law is a violation of
the Constitution he has sworn to support, and that the Supreme Court
had in that respect fallen into error, it is not only his right but his duty
to refuse to aid in the passage of the proposed law. And this is all the
President has said, and there was nothing new in this. For that principle
was asserted and acted upon [by Jefferson] in relation to the memorable
Sedition Law. That Law had been held to be constitutional by every
Justice of the Supreme Court before whom it had come at circuit, and
several persons had been punished by fine and imprisonment for offending against it. Yet a majority in Congress refused to continue the
law, avowedly upon the ground that they bel