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if such right were a vital one.
But such is not our
All the vital rights of minorities and of individuals are so plainly assured to them by affirmations and negations, guaranties and prohibitions in the Constitution, that controversies never arise concerning them. But no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate, nor any document of reasonable length contain, express provisions for all possible questions. Shall fugitives from labor be surrendered by national or by State authorities? The Constitution does not expressly say. Must Congress protect slavery in the Territories? The Constitution does not expressly say. From questions of this class, spring all our constitutional controversies, and we divide upon them into majorities and minorities.
If the minority will not acquiesce, the majority must, or the government must cease. There is no alternative for continuing the government but acquiescence on the one side or the other. If a minority in such a case, will secede rather than acquiesce, they make a precedent which in turn will ruin and divide them, for a minority of their own will secede from them whenever a majority refuses to be controlled by such a minority. For instance, why not
any portion of a new confederacy, a year or two hence, arbitrarily secede again, precisely as portions of the present Union now claim to secede from it? All who cherish disunion sentiments are now being educated to the exact temper of doing this. Is there such perfect identity of interests among the States to compose a new Union as to produce harmony only, and prevent renewed secession? Plainly, the central idea of secession is the essence of anarchy.
A majority held in restraint by constitutional check and limitation, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it, does, of necessity, fly to anarchy or to despotism. Unanimity is impossible; and the rule of a majority, as a permanent arrangement, is wholly inadmissible. So that, rejecting the majority principle, anarchy or despotism in some form is all that is left.
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government; and while it is obviously possible that
such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.
At the same time the candid citizen must confess that if the policy of the government upon the vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made, as in ordinary litigation between parties in personal actions, the people will have ceased to be their own masters, unless having to that extent practically resigned their government into the hands of that eminent tribunal.
Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions into political purposes. One section of our country believes slavery is right and ought to be extended, while the other believes it is wrong and ought not to be extended; and this is the only substantial dispute; and the fugitive slave clause of the Constitution, and the law for the suppression of the foreign slave trade, are each as well enforced, perhaps, as any law can ever be in a com
munity where the moral sense of the people imperfectly supports the law itself. The great body of the people abide by the dry legal obligation in both cases, and a few break over in each. This, I think, cannot be perfectly cured, and it would be worse in both cases after the separation of the sections than before. The foreign slave trade, now imperfectly suppressed, would be ultimately revived, without restriction, in one section; while fugitive slaves, now only partially surrendered, would not be surrendered at all by the other.
Physically speaking we cannot separate- we cannot remove our respective sections from each other, nor build an impassable wall between them. A husband and wife may be divorced, and go out of the presence and beyond the reach of each other, but the different sections of our country cannot do this. They cannot but remain face to face; and intercourse, either amicable or hostile, must continue between them. Is it possible, then, to make that intercourse more advantageous or more satisfactory after separation than before? Can aliens make treaties easier than friends can make laws? Can treaties be more faithfully enforced between aliens than laws can among friends? Suppose you go to war, you cannot fight always; and when, after much loss on both sides and no gain on either, you cease
fighting, the identical questions as to terms of intercourse are again upon you.
This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending, or their revolutionary right to dismember or overthrow it. I cannot be ignorant of the fact that many worthy and patriotic citizens are desirous of having the national Constitution amended. While I make no recommendation of amendment, I fully recognize the full authority of the people over the whole subject, to be exercised in either of the modes prescribed in the instrument itself, and I should, under existing circumstances, favor, rather than oppose, a fair opportunity being afforded the people to act upon it.
I will venture to add, that to me the convention mode seems preferable, in that it allows amendments to originate with the people themselves, instead of only permitting them to take or reject propositions originated by others not especially chosen for the purpose, and which might not be precisely such as they would wish either to accept or refuse. I understand that a proposed amendment to the Constitution (which amendment, however, I have not seen) has passed Congress, to the effect that the Federal Government shall never interfere with the domestic 10