Until the people
have, by some solemn and authoritative act, annulled or changed the
established form, it is binding upon themselves collectively, as well as
individually; and no presumption, or even knowledge, of their
sentiments, can warrant their representatives in a departure from it,
prior to such an act. But it is easy to see, that it would require an
uncommon portion of fortitude in the judges to do their duty as faithful
guardians of the Constitution, where legislative invasions of it had
been instigated by the major voice of the community.
But it is not with a view to infractions of the Constitution only, that
the independence of the judges may be an essential safeguard against the
effects of occasional ill humors in the society. These sometimes extend
no farther than to the injury of the private rights of particular
classes of citizens, by unjust and partial laws. Here also the firmness
of the judicial magistracy is of vast importance in mitigating the
severity and confining the operation of such laws. It not only serves to
moderate the immediate mischiefs of those which may have been passed,
but it operates as a check upon the legislative body in passing them;
who, perceiving that obstacles to the success of iniquitous intention
are to be expected from the scruples of the courts, are in a manner
compelled, by the very motives of the injustice they meditate, to
qualify their attempts.
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