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THE POWER OF THE SUPREME COURT.
In view of the Dred Scott dicta and other en- Under date of Montecello, Dec. 25, 1820, he croachments upon the Liberties of the People writes to Thomas Ritchie as follows: and the rights of the States, that may well be apprehended from future decisions of a Federal subtle corps of sappers and miners constantly working
The Judiciary of the United States is the partisan Judiciary, the opinions of the leaders of under-ground to undermine the foundations of our conthe old Jeffersonian Republican party on the federated fabric. They are construing our Constitution powers and duties of the Supreme Court become from a coördination of a general and special government
to a general and supreme one alone. matter of public interest.
On the 18th of August, 1821, Mr. Jefferson OPINIONS OF TIIOMAS JEFFERSON.
writes to Mr. C. Hammond, as follows: In a letter to John Adams, dated Sept. 11, never shrunk from its expression, that the germ of disso
It has long, however, been my opinion, and I have 1804, Mr. Jefferson says:
lution of our Federal Government is in the constitution You seemed to think that it devolved on the Judges to of the Federal Judiciary-an irresponsible body, workdecide on the validity of the Sedition Law. But nothing in ing like gravity by night and by day, gaining a little tothe Constitution has given them a right to decide for the day and a little to-morrow, and advancing its noiseless Executive, more than the Executive to decide for them. step, like a thief, over the field of jurisdiction, until all Both magistrates are equally independent in the sphere of shall be usurped from the States, and the Government of action assigned to them. The Judges, believing the law all be consolidated into one. To this I am opposed; beconstitutional, had a right to pass a sentence of fine and cause, when all government, domestic and foreign, in imprisonment, because the power was placed in their little as in great things, shall be drawn to Washington as hands by the Constitution. But the Executive, believing the centre of all power, it will render powerless the the law to be unconstitutional, were bound to 'remit the checks provided of one Government on another, and will execution of it, because that power had been confided to
become as venal and oppressive as the Government from
which we separated. them by the Constitution."
It will be as in Europe, where
every man must be either pike or gudgeon, hammer or Again, in a letter to Judge Roane, dated anvil. Our functionaries and theirs are wares from the Poplar Forest, Sept. 6, 1819, Mr. Jefferson re- same workshop, made of the same materials, and by the
same hand. marks:
If the States look with apathy on this silent
descent of their Government inio the gulf which is to In denying the right they usurp in exclusively ex. swallow all, we have only to weep over the human charplaining the Constitution, I go further than you do, if I acter, formed uncontrollable but by a rod of iron, and understand rightly your quotation from the Federalist, the blasphemers of man as incapable of self-gove. nment, of an opinion that “The Judiciary is the last resort in re become his true historians. lation to the other departments of the Government, but not in relation to the rights of the parties to the compact March 4, 1820, he says,
In a letterto Judge Johnson, dated Monticello, under which the Judiciary is derived.". If this opinion be sound, then indeed is our Constitution a complete felo de I cannot lay down my pen without recurring to one of 8e. For intending to establish three departments, coördi- the subjects of my former letter, for, in truth, there is no nate and independent, that they might check and balance danger I apprehend so much as the consolidation of our one another, it has given, according to this opinion, to one Government by the noiseless, and therefore unalarming, of them alone the right to prescribe rules for the govern- instrumentality of the Supreme Court. This is the form ment of the others, and to that one, too, which is unelected in which Federalism now arrays itself. by and independent of the nation.
The Constitution, on this hypothesis, is å mere thing of wax, in the
In a letter dated June 12, same year, he says, hands of the Judiciary,which they may twist and shape into The practice of Judge Marshall, of traveling out of his any form they please. It should be remembered, as an eter- case to prescribe what the law would be in a moot case nal truth in politics, that whatever power in any government not before the court is very irregular and very cenis independent, is absolute also; in theory only at first, while surable. the spirit of the people is up, but in practice as fast as that relaxes. Independence can be trusted nowhere but with
In writing to Mr. W. H. Torrance, June 11, the people in mass. They are inherently independent of 1815, Mr. Jefferson says: all but moral law. My construction of the Constitution is very different from that you quote. It is that each de- with exclusive authority to decide on the constitutionality
The second question, whether the judges are invested partment is truly independent of the others, and has án equal right to decide for itself what is the meaning of the with me in the exercise of official duties. Certainly
of a law,
has been heretofore a subject of consideration Constitution in the cases submitted to its action, and espe- there is not a word in the Constitution which has given cially where it is to act ultimately and without appeal.
that power to them more than to the Executive or Legis. In a letter to Mr. Jarvis, dated Monticello, lative branches. Questions of property, of character, Sept. 28, 1820, Mr. Jefferson says:
and of crime, being ascribed to the judges through a
definite course of legal proceeding, laws involving such You seem, in pages 84 and 148, to consider questions, belong, of course, to them; and as they decide the Judges as the ultimate arbiters of all constitutional on them ultimately, and without appeal, they, of course, questions-a very dangerous doctrine indeed, and one decide for themselv. 8. The constitutional validity of the which would place us under the despotism of an oligarchy. law or laws again prescribing executive action, and to Our judges are as honest as other men, and not more so. be administered by that branch ultimately, and without They have, with others, the same passions for party, for appeal, the Executive must decide for themselves, also, power, and the privilege of their corps. Their maxim is, whether, under the Constitution, they are valid or not. ** boni judicis est ampliare jurisdictionem," and their So also, as to laws governing the proceedings of the Legpower the more dangerous as they are in office for life, islature, that body must judge for itself the constitution and not responsible, as the other functionaries are, to the ality of the law, and equally without appeal or control elective control. The Constitution has erected no such from its coördinate branches. And, in general, the single tribunal, knowing that, to whatever hands confided, branch which is to act ultimately, and without appeal or with the corruptions of time and party, its members would any law, is the rightful expositor of the validity of th: become despots. It has more wisely made all the depart- law, uncontrolled by the opinions of the other coordi ments co-equal and co-sove: eign within themselves. pate authorities.
John Taylor, of Caroline, Va., who used in for that I think I have shown to be impossible, with the his day to speak and write " as one having Lise, and because the people have retained in their own
powers which the Legislature may safely use and exerauthority” in the old Jeffersonian Republican hands the power of controlling and d.recting the Legisparty, in an essay entitled “New Views of the lature, by their immediate and mediate elections of Constitution,” says:
President, Senate, and House of Representatives. See
ib., page 73. The perseverance of the gentleman in favor of a National Government proves that the subject was tho
Mr. Cocke, of Tennessee, on the same subroughly considered; and the solemn preference of the ject, said: Federal form demonstrates that no construction by We have been told that the nation is to look up to which the preference will be frustrated can be just. these immaculate judges to protect their liberties; to Its basis was State sovereignty, compatible with a fede protect the people against themse.ves.-16., page 75. ral limited Government, but incompatible with a supreme National Government. Hence State Sovereignty
In the House, Robert Williams, of North was denied by the gentlemen who proposed a National Carolina, said: dovernment. This sovereignty is the foundation of all the powers reserved to the States. Unless they are sus contend, then is the sovereignty of the Government to be
If this doctrine is to extend to the length gentlemen lained by it, they are baseless. ecutive, and judicial powers, must all or none flow from swallowed up in the vortex of the Judiciary. Whatever this source. All are necessary to sustain the State Re- the other departments of the Government may do, they publican Governments. Subject either to a master, Will not the people be astonished to hear that their laws
can undo. You may pass a law, but they can andulvit. and the others become subject to the same master. the State judicial power, as flowing from State sov- depend upon the will of the judges, who are theinselves feignty, is not independent, State legislative and ex. independent of all law ?–16., pages 531, 532. ecutive power cannot be independent, because all rest. upon the same foundation; and because if a supreme federal Judiciary can control State Courts, it can also
John Randolph, of Roanoke, said : control Stat Legislatures and Executives. Thus a But, sir, if you pass the law, the judges are to put their federal forın of Government would be rejected, though veto upon it by declaring it unconstitutional. Here is a it was established, and a National Government would be new power, of a dangerous and uncontrollable nature, established, though it was rejected.
contended for. The decision of a constitutional question The legal features of the Constitution, in relation to must rest somewhere. Shall it be confided to men imjudges, is expressed in the sixth article: "The Con- mediately responsible to the people, or to those who are stitution is the supreme law of the land, and the irresponsible ? for the responsibility by impeachment is judges in every State are to be bound thereby.” little less than a name. From whom is a corrupt decision Can the judgments of the Federal court be a su- most to be feared ? To me it appears that the power preme law over this supreme law? Is there no dif- which has the right of passing, without appeal, on the ference between the supremacy of a Federal court validity of your laws, is your sovereign. But, over inferior Federal courts, and the supremacy of the sir, are we not as deeply interested in true exposition Constitution over all courts? The supremacy of the of the Constitution as the judges can be ? With all due Constitution is a guaranty of the independent powers, deference to their talents, is not Congress as capable of within their respective spheres, allowed by the Federal- forming a correct opinion as they are ? Are not its ist to the State and Federal Governments. A supre- members acting under a responsibility to public opinion, macy in the court might abridge or alter these spheres. which can and will check their aberrations from duty ! The State judges are bound by the Constitution and by Let a case, not an imaginary one, be stated : Congress an oath to obey the supremacy of the Constitution, and violates the Constitution by fettering the press; the judi. not even required to obey the supremacy of the Federal cial corrective is applied to ; far from protecting the court. Why are all the departments of the State and liberty of the citizen, or the letter of the Constitution Federal Governments equally bound to obey the supre- you find them outdoing the legislature in zeal; pressing macy of the Constitution ? Because the State and Fe- the common law of England to their service where the deral Governments were considered as checking or sedition law did not apply. Suppose your reliance had balancing departments. Had either been considered as been altogether on this broken staff, and not on the elecsubordinate to a supremacy in the other, it would have tive principle? Your press might have been enchained been tyrannical to require it by an oath to support the till doomsday, your citizens incarcerated for life, and Bupremacy of the Constitution, and also to break that where is your remedy? But if the construction of the oath by yielding to the usurped supremacy of the other.Constitution is left with us, there are no longer limits to
our power; and this would be true, if an appeal did not During the administration of John Adams, lie through the elections, from us to the nation, to whom the Judiciary system was remodeled in such alone, and not a few privileged individuals, it belongs to way as to create a large number of Circuit In their inquisitorial capacity, the Supreme Court, re,
decide, in the last resort, on the Constitution. Judgeships, and to make the Supreme Court lieved from the tedious labor of investigating judicial. simply a Court of Appeal from the inferior points by the law of the last session, may easily direct the jurisdictions. After the election of Mr. Jeffer- Executive, by mandamus, in what mode it is their
pleasure that we should execute his functions. They will. son, with a Republican (Democratic) majority also have more leisure to attend to the legislature, and in Congress the act was repealed.
forestall, by inflammatory pamphlets, their decisions on. During the debate in the Senate, which was public
, we shall retain the right of debating, but not of.
all important questions; whilst, for the amusement of the protracted, on this repeal bill, Mr. Jackson voting.–16., pages 661, 662. of Georgia, sạid :
We have been asked if we are afraid of having an army of judges ? For myself, I am more afraid of an
Nathaniel Macon, of North Carolina, said : army of judges under the patronage of the President, We have heard much about the judges, and the neces. than of an army of soldiers. The former can do us sity of their independence. I will state one fact, to show more harm. They may deprive us of our liberties, if that they have power as well as independence. Soon attached to the Executive, from their decisions; and after the establishment of the Federal Courts, they issued from the tenure of office contended for, we cannot re- a writ- not being a professional man, I shall not undermove them; while the soldier, however he may act, is take to give its name—to the Supreme Court of North. enlisted, or if not enlisted, only subsisted for two years ; Carolina, directing a case then depending in the State whilst the judge is enlisted for life, for his salary cannot Court to be brought into the Federal Court. The State be taken from him.--See Annals of Congress, 1801-2, judges refused to obey the summons, and laid the whole page 47.
proceedings before the legislature, who approved their During the same discussion, Mr. Mason, of conduct, and, as well as I remember, unanimously,
and this in that day was not called disorganizing.-16. Virginia, said :
The objects of courts of law, as I understand them, are to settle questions of right between suitors, to enforce obedience to the laws, and to protect the citizens
Joha. Bacon, of Massachusetts, said: against the oppressive use of power in the Executive The Judiciary have no more right to prescribe, direct, ottices. Not to protect them against the Legislature, or control the acts of the other departments of the Gov.
ernment, than the other departments of the Govern- 1 preme Court of the United States annulled the ment have to prescribe or direct those of the Judiciary.- judgment in the State court, and issued a manIb., page 983.
date to the Superior Court of Georgia, to carry THE SEDITION LAW.
its judgment of reversal into execution. Judge When the case of Matthew Lyon was before Benning proceeds: the United States Senate in 1818, on petition
Now, what did Georgia do on receipt of this special asking indemnity for a fine imposed upon him mandate? Through every department of her government under the Sedition Law, John J. Crittenden, of she treated the mandate and the writ of error with con.
tempt the most profound. She did not even protest Kentucky, said:
against jurisdiction, as she had done in the case of ChisThe judiciary is a valuable part of the Government, and holm's executors; but she kept Worcester and Butler in ought to be highly respected, but is not infallible. The the penitentiary, and she executed, in the Creek nation, Constitution is our guide-our supreme law. Blind homage the laws, for violating which they had been put in the can never be rendered by freemen to any power. In all penitentiary. cases of alleged violations of the Constitution, it was for Congress to make a just discrimination. — Benton's
Judge Benning, in delivering his opinion, says Abridgment, vol. 6, page 184.
further: Nathaniel Macon, of North Carolina, on the It was not only in this case that Georgia occupied this same day said:
position; she did it in two other cases, and those, cases of
life and death: the case of Tassels, and that of Graves. According to some gentlemen, we were to regard the One of these happened before those of Worcester and Judiciary more than the law, and both more than the Con. Butler, namely, in 1830; the other afterward, in 1834. stitution. It was a misfortune the judges were not equal The Supreme Court had issued writs of error in each of in infallibility to the God who made them. The truth these cases, on the application of the defendants to the was, if the judge was a party-man out of power, he would State of Georgia; but, as the cases are not reported, it is be a party-man in. The office would not change human to be presumed that these writs never got back to the nature. He had no doubt that the Sedition Law, and the Supreme Court; or that, if they ever did, it was too late. proceedings under it, had more effect in revolutionizing It is certain that Georgia hung the applicants for the writ. the Government than all its other acts. He well remembered the language of the times-pay your taxes, but In the Tassels case, the legislature passed don't speak against government.-Ibid., page 187.
these, among other resolutions : Hon. James Barbour, of Virginia, made a re- Resolved, that the State of Georgia will never so far port on the subject of the petition, of which the compromit her sovereignty, as an independent State, as to following is an extract:
become a party to the case sought to be made before the
Supreme Court of the United States by the writ in quesThe first question that naturally presents itself in the tion. investigation is, was the law constitutional ? The com- Resolved, That his excellency the Governor be, and he mittee have no hesitation in pronouncing, in their opin- and every other officer of this state is hereby, requested ions, it was not.
and enjoined to disregard any and every mandate and The committee are aware that, in upposition to this process that has been or shall be served on him or them, view of the subject, the decision of some of the judges of purporting to proceed from the Chief Justice or any Assothe Supreme Court, sustaining the constitutionality of the ciate Justice of the Supreme Court of the United States, law, has been frequently referred to, as sovereign and for the purpose of arresting the execution of any of the conclusive of the question.
criminal laws of this State. The committee entertain a high respect for the purity and intelligence of the Judiciary. But it is a rational re
Similar resolutions were passed, as to the spect, limited by a knowledge of the frailty of human na- case of Graves, by the legislature of 1834. ture, and the theory of the Constitution, which declares, not only that Judges may err in opinion, but also may
PENNSYLVANIA. commit crimes, and hence has provided a tribunal for the
The Supreme Court of Pennsylvania, in the trial of offenders.
case of the Commonwealth v. Cobbett, gave a GEORGIA.
unanimous opinion in 1788, from which the folIn the case of Paddleford, Fay, & Company lowing is an extract: v. the Mayor and Aldermen of the city of Sa- If a State should differ with the United States about tho vannah, Judge Benning, in delivering the opin- construction of them, there is no common umpire but the ion of the court, recited two or three cases in people, who should adjust the affair by making amendwhich the State of Georgia had acted in disre- In such a case, the Constitution of the United States is
ments in the constitutional way, or suffer from the defect. gard of the decisions of the Supreme Court of federal; it is a league or treaty made by the individual the United States. In the case of Chisholm, States as one party, and all the States as another party. executor, against Georgia, the Supreme Court sentence, or word, in a treaty, neither has an exclusive of the United States
right to decide it; they endeavor to adjust the matter by Ordered, that unless the said State shall either in due negotiation; but if it cannot be thus accomplished, each form appear, or show cause to the contrary, in this court, has a right to retain its own interpretation, until a referby the first day of next term, judgment by default
shall be ence be had to the mediation of other nations, and arbi. entered against the said State.
tration, or the fate of war. There is no provision in the The reporter adds, in a note, that "in February term, Court of the United States shall control and be conclusive;
Constitution that in such a case the judges of the Supreme 1794, judgment was rendered for the plaintiff, and a writ of inquiry awarded. The writ, however, was not sued out neither can the Congress by a law confer that power. and executed; so that this cause, and all of the other suits Respublica v. Cobbett, 8 Dallas's Reports, page 475. against States, were swept at once from the records of the
VIRGINIA. court by the amendment of the Federal Constitution."
Georgia treated the court with contempt in respect to The Court of Appeals of Virginia, in 1814, in this case. Her position was, that the court had no juris- the case of Hunter v. Martin, devisee of Fairdiction of her as a party.—Georgiu Reports, vol. 14, fax, entered the following unanimous opinion, The Judge proceeds to say, that “in this
after full argument: position Georgia triumphed," and that the judg- The court is unanimously of opinion that the appellate mont against her “ fell dead."
power of the Supreme Court of the United States does not The Judge next cites the case of Worcester Constitution of the United States; that so much of the
extend to this court, under a sound construction of the and Butler, who had settled on the Cherokee twenty-fifth section of the act of Congress to establish the lands in Georgia, contrary to the laws of the judicial courts of the United States as extends the appelState, and for which offense they were sent to in pursuance of the Constitution of the United States;
late jurisdiction of the Supreme Court to this court is not the penitentiary. On a writ of error, the Su-l that the writ of error in this case was improvidently al.
lowed under the authority of that act; that the proceed the Queen of Scots, the judges were instructed to conIngs thereon in the Supreme Court were coram non demn her, and by their sentence she ca.ne to the block. judice in relation to this court; and that obedience to its | This horrid deed was covered by the eloak of judicial mandate be declined by this court.
proceedings. When Charles I., determined to change In times of violent party excitement, agitating the the religion of Scotland, he made use of the Court of whole nation, to expect that judges will be entirely ex- | High Commission to effect the object. By the same judi empt from its influence, argues a profound ignorance of cial power, the advocates for the doctrines of the Re mankind. Although clothed with the ermine, they are formation have so often been divested of their religious still men, and carry into the judgment seat the passions privileges, and doomed to seal with their blood that reand motives common to their kind. Their decisions on ligion which bore them triumphantly through the vale of party questions reflect their individual opinions, which death. frequently betray them unconsciously into error, To
The short, though splendid history of this Government balance the judgment of a whole people by that of two or furnishes nothing that can induce us to look with a very three men, no matter what may be their official elevation, favorable eye to the Federal Judiciary as a safe deposi. is to exalt the creature of the Constitution above its 'tory of our liberties. When a law was enaeted in viola creator, and to assail the foundation of our political | tion of a vital principle of the Constitution, that which fabric; which is, that the decision of the people is infal- was designed to secure the freedom of speech and of the lible, from which there is no appeal but to Heaven.--See press, the victims of its operation looked in vain to the Benton's Abridgment, vol. 6, pages 660, 661.
judges to arrest the progress of usurpation. If this Mahlon Dickerson, of New-Jersey, said :
power could ever be exercised to any good purpose, it
would be, on such occcasions, to declare the law uncopBut I must beg leave to differ from the honorable gen- stitutional which aims a deadly blow at the vital princitleman (Mr. Walker, of Georgia) when he informs us that ples of freedom; but, so far as the transactions of that our independent Judiciary is the bulwark of the liberties day are detailed in our public records, it appears that of the people. By which he must mean, defenders of the the Judiciary was a willing instrument of Federal usur. people against the oppressions of the Government. From pation. That law was executed in all the rigor of the what I witnessed in the years 1798, 1799, and 1800, I never spirit which dictated it. The turbulence of faction found Bhall, I never can, consider our Judiciary as the bulwark no moderation there; and the people found relief only of the liberties of the people. The people must look out in their own power. The exercise of their elective franfor other bulwarks for their liberties. ---See ib., page 701. chise removed the evil, and this is their only safe depen
dence. RICHARD M. JOHNSON, OF KENTUCKY.
GEN. JACKSON. Mr. Johnson, who was elected Vice-President
The following is an extract from Gen. Jackof the United States by the Democratic party, son's message vetoing the bill for rechartering represented Kentucky in the United States the Bank of the United States. It may be Senate in 1822. I find in Benton's Abridy found on page 438 of the Senate Journal for ment of the Debates of Congress, vol. 7, page the first session of the Twenty-second Congress, 145, an elaborate speech of Mr. Johnson upon a land is in these words: resolution offered by him, proposing an amend
If the opinion of the Supreme Court covered the ment of the Constitution. His proposition was whole ground of this act, it ought not to control the coto amend the Constitution by referring all cases ordinate authorities of this Government. The Congress, in which a State may be a piirty to the final the Executive, and the Court, must each for itself bo
Each adjudication of the Senate. In the course of public officer, who takes an oath to support the Consti
guided by its own opinion of the Constitution. his remarks, he says:
tution, swears that he will support it as he understands
it, and not as it is understood by others. It is as much At this time there is, unfortunately, a want of confi- the duty of the House of Representatives, of the Senate, dence in the Federal Judiciary, in cases that involve
and of the President, to decide upon the constitutionalpolitical power; and this distrust my be carried to other ity of any bill or resolution which may be presented to cases, such as the lawyers call meum et tuum.
them for passage or approval, as it is of the supreme Courts also, like cities and villages, or like legislative judges, when it may be brought before them for judicial bodies, will sometimes have their leaders ; and it may
decision. The opinion of the judges has no more authorhappen, that a single individual will be the prime cause ity over Congress than the opinion of Congress over the of a decision to overturn the deliberate act of a whole judges ; and, on that point, the President is independState, or of the United States; yet, we are admonished
ent of both. The authority of the Supreme Court must to receive their opinions as the ancients did the re
not, therefore, be permitted to control the Congress or sponses of the Delphic oracle, or the Jews, with more
the Executive when acting in their legislative capacities, propriety, the communications from Heaven, delivered but to have only such influence as the force of their by Urim and Thummim, to the High Priest of God's
reasoning may deserve. chosen people, from the sanctum sanctorum. Other causes of difference might be multiplied to a tedious extent; but enough has been said to show that judges, who, like other men, are subject to the frailties, the passions,
THE OTHER SIDE OF THE QUESTION. the partialities, and antipathies, incident to human na
MR. WEBSTER'S VIEW8. ture, should not be exempted from responsibility on account of their superior integrity, learning, and capacity; The other side of this question was lucidly or that their decisions should be subject to revision by and ably stated by the late Daniel Webster, in a is believed that this is the opinion of that great and good speech delivered before the U. S. Senate, on the man who penned the Declaration of Independence, and 27th of January, 1830, in the famous debate who now enjoys, in the shades of Monticello, the bless- between Mr. W. and Mr. Hayne, of South Carings of the principles which it contains.
It was the judgment of a court that doomed the im- olina, on Foot's Resolution, as follows: mortal Socates to drink the hemlock. When the Roman Mr. Hayne having rejoined to Mr. Webster, tyrant could no longer use a hired soldiery to•iminolate ially on the constitutional question, Mr. the victims of his jealousy, he resorted to courts of law. When Henry vill, of England, would exercise crvei Webster rose, and, in conclusion, said: despotism under the forms of a free Constitution, the A few words, Mr. President, on this constitutional arguarmy, the court, and the Parliament, were the potentment, which the honorable gentleman has labored to reengines that sustained him. When Mary, his daughter, construct. compelled the Protestants to seal their testimony at the His argument consists of two propositions and an infer. stake, the court gave sanction to the murderous deeds. ence. His propositions are: Her sister and successor, Elizabeth, created the Court of 1st. That the Constitution is a compact between the High Commission, and formally invested it with inquisi- States. torial power. She also supported the arbitrary edicts of 2d. That a compact between two, with authority re. the Star Chamber. The Puritans, because obnoxious to served to one to interpret its terms, would be a surrender the free exercise of the prerogatives of the Crown, were to that one of all power whatever. imprisoned and dispersed by process of law, and the 3d. Therefore, (such is his inference,) the General Govjudges were the supporters of her despotic power. ernment does not possess the authority to construe its own When she would destroy her unfortunate kinswoman, powers.
Now, sir, who does not see, without the aid of exposition, that they should agree. One alone could not interpret it or detection, the utter confusion of ideas involved in this conclusively; one alone could not construe it; one alone so eiaborate and systematic argument.
could not modify it. Yet the gentleman's doctrine is, that The Constitution, it is said, is a compact between States; | Carolina alone may construe and interpret that compact the States, then, and the States only, are parties to the which equally binds all, and gives equal rights to all. compact. How comes the General Government itself a So, then, sir, even supposing the Constitution to be a party? Upon the honorable gentleman's hypothesis, the compact between the States, the gentleman's doctrine, nev. General Government is the result of the compact, the crea ertheless, is not maintainable; because, first, the General ture of the compact, not one of the parties to it. Yet the Government is not a party to that compact, but a governargument, as the gentleman has now stated it, makes the ment established by it, and vested by it with the powers Government itself one of its own creators. It makes it a of trying and deciding doubtful questions; and secondly, party to that compact to which it owes its own existence, because, if the Constitution be regarded as a compact, not
For the purpose of erecting the Constitution on the ba-one State only, but all the States, are parties to that comsis of a compact, the gentleman considers the States as pact, and one can have no right to fix upon it her own pe. parties to that compact; but as soon as his compact is culiar construction. made, then he chooses to consider the General Govern- So much, sir, for the argument, even if the premises of ment, which is the offspring of that compact, not its off the gentleman were granted, or could be proved, But, spring, but one of its parties ; and so being a party, with sir, the gentleman has failed to maintain his leading proout the power of judging on the terms of compact. Pray, position. He has not shown, it cannot be shown, that the sir, in what school is such reasoning as this taught ? Constitution is a compact between State Governments.
If the whole of the gentleman's main proposition were The Constitution itself, in its very front, refutes that idea; cunceded to him, that is to say, if I admit for the sake of it declares that it is ordained and established by the peothe argument, that the Constitution is a compact between ple of the United States. So far from saying that it is States, the inferences which he draws from that proposi- established by the governments of the several States, it tion are warranted by no just reasoning. If the Constitu- does not even say that it is established by the people of the tion be a compact between States, still that Constitution, several States, but it pronounces that it is established by or that compact, has established a government, with cer- the people of the United States, in the aggregate. The tain powers; and whether it be one of those powers, that gentleman says, it must mean no more than the people of it shall construe and interpret for itself the terms of the the several States. Doubtless, the people of the several compact, in doubtful cases, is a question which can only States, taken collectively, constitute the people of the be decided by looking to the compact, and inquiring what United States; but it is in this, their collective capacity, it provisions it contains on this point. Without any inconsist is as all the people of the United States, that they establish ency with natural reason, the Government even thus crea- the Constitution. . So they declare; and words cannot be ted might be trusted with this power of construction. The plainer than the words used. extent of its powers, therefore, must still be sought for in When the gentleman says the Constitution is a comthe instrument itself.
pact between the States, he uses language exactly apIf the Old Confederation had contained a clause, declar- plicable to the old Confederation. He speaks as if he ing that Resolutions of the Congress should be the supreme were in Congress before 1789. · He describes fully that law of the land, any State law or Constitution to the con- old state of things then existing. The Confederation was, trary notwithstanding, and that a Committee of Congress, in strictness, a compact; the States, as States, were paror any other body created by it, should possess judicial ties to it. We had no other general government. But powers extending to all cases arising under resolutions of that was found insufficient, and inadequate to the public Congress, then the power of ultimate decision would have exigencies. The people were not satisfied with it, and been vested in Congress under the Confederation, although undertook to establish a better. They undertook to form that Confederation was a co between States; and for General Government, which should stand on a new this plain reason, that it would have been competent to the basis ; not a confederacy, not a league, not a compact States, who alone were parties to the compact, to agree between States, but a Constitution; a popular governwho should decide in cases of dispute arising on the con- ment, founded in popular election, directly responsible to struction of the compact.
the people themselves, and divided into branches with For the same reason, sir, if I were now to concede to the prescribed limits of power, and prescribed duties. They gentleman his principal proposition, namely, that the Con- ordained such a government, they gave it the name of stitution is a compact between States, the question would a Constitution, and therein established & distribution of still be, what provision is made, in this compact, to settle power between this, their General Government, and their points of disputed construction, or contested power, that several State governments. When they shall become disshall come into controversy ? And this question would satisfied with this distribution, they can alter it. Their still be answered, and conclusively answered, by the Con- own power over their own instrument remains. But unstitution itself.
til they shall alter it, it must stand as their will, and is While the gentleman is contending against construction, equally binding on the General Government and on the he himself is setting up the most loose and dangerous con- States. struction. The Constitution declares, that the laws of Con- The gentleman, sir, finds analogy where I see none. gress passed in pursuance of the Constitution shall be He likens it to the case of a treaty, in which, there being the supreme lawo of the land. No construction is necessary no common superior, each party must interpret for himhere. It declares, also, with equal plainness and precision, self, under its own obligation of good faith. But this is that the judicial power of the United States shall ex- not a treaty, but a constitution of government, with tend to every case arising under the laws of Congress powers to execute itself, and fulfill its duties. This needs no construction. Here is a law, then, which is I admit, sir, that this government is a government of declared to be supreme; and here is a power established, checks and balances; that is, the House of Representatives which is to interpret that law. Now, sir, how has the gen- is a check upon the Senate, and the Senate is a check on tleman met this? Suppose the Constitution to be a com- the House, and the President a check on both.. But I canpact, yet here are its terms; and how does the gentleman not comprehend, or, if I do, I totally differ from him, when get rid of them? He cannot argue the seal off the bond, he applies the notivn of checks and balances to the internor the word out of the instrument. Here they are; what ference of different governments. He argues that if we answer does he give to them? None in the world, sir, ex- transgress our constitutional limits, each State, as a cept that the effect of this would be to place the States in State, has a right to check us. Does he admit the cona condition of inferiority; and that it results from the very verse of the proposition, that we have a right to check nature of things, there being no superior, that the parties the States ? The gentleman's doctrines would give us a must be their own judges! Thus closely and cogently does strange jumble of authorities and powers, instead of the honorable gentleman reason on the words of the Con- governments of separate and defined powers. It is the stitution. The gentleman says, if there be such a power part of wisdom, I think, to avoid this, and to keep the of final decision in the General Government, he asks for General Government and the State Government each the grant of that power. Well, sir, I show him the grant. in its proper sphere, avoiding as carefully as possible I turn him to the very words. I show him that the laws every kind of interference. of Congresso are made supreme; and that the judicial Finally, sir, the honorable gentleman says, that the power extends, by express words, to the interpretation of States will only interfere, by their power, to preserve the these laws. Instead of answering this, he retreats into Constitution. They will not destroy it, they will not impair the general reflection, that it must result from the nature it ; they will only save, they will only preserve, they will of things, that the States, being parties, must judge for only strengthen it. Ah! sir, this is but the old story. All re themselves.
gulated governments, all'free governments, have beer I have admitted, that, if the Constitution were to be con- broken by similar disinterested and well disposed inter sidered as the creature of the State Governments, it might ference. It is the common pretence.
But I take lean be modified, interpreted, or construed according to their of the subject. pleasure. But, even in that case, it would be necessary