authority of all, be more safe than twenty-four tribunals, acting at their own pleasure, and upon no common principles and co-operation? Suppose Congress should declare war; shall one State have power to suspend it? Suppose Congress should make peace; shall one State have power to involve the whole country in war? Suppose the President and Senate should make a treaty; shall one State declare it a nullity, or subject the whole country to reprisals for refusing to obey it? Yet, if every State may for itself judge of its obligations under the Constitution, it may disobey a particular law or treaty, because it may deem it an unconstitutional exercise of power, although every other State shall concur in a contrary opinion. Suppose Congress should lay a tax upon imports burdensome to a particular State, or for purposes which such State deems unconstitutional, and yet all the other States are in its favor; is the law laying the tax to become a nullity? That would be to allow one State to withdraw a power from the Union which was given by the people of all the States. That would be to make the general government the servant of twenty-four masters of different wills and different purposes, and yet bound to obey them all.1

§ 381. The argument, therefore, arising from a possibility of an abuse of power, is, to say the least of it, quite as strong the other way. The Constitution is in quite as perilous a state from the power of overthrowing it lodged in every State in the Union, as it can be by its being lodged in any department of the Federal government. There is this difference, however, in the cases, that if there be Federal usurpation, it may be checked by the people of all the States in a constitutional way. If there be usurpation by a single State, it is, upon the theory we are considering, irremediable. Other difficulties, however, attend the reasoning we are considering. When it is said that the decision of the Supreme Court in the last resort is obligatory and final "in relation to the authorities of the other departments of the government," is it meant of the Federal government only, or of the States also? If of the former only, then the Constitution is no longer the supreme law of the land, although all the State functionaries are bound by an oath to support it. If of the latter also, then it is obligatory upon the State legislatures, executives, and judiciaries. It binds them; and yet it does not bind the people of the States, or the 1 Webster's Speeches, 420; 4 Elliot's Debates, 339.

States in their sovereign capacity. The States may maintain one construction of it, and the functionaries of the State are bound by another. If, on the other hand, the State functionaries are to follow the construction of the State in opposition to the construction of the Supreme Court, then the Constitution, as actually administered by the different functionaries, is different; and the duties required of them may be opposite and in collision with each other., If such a state of things is the just result of the reasoning, may it not justly be suspected that the reasoning itself is unsound?

§ 382. Again, it is a part of this argument that the judicial interpretation is not binding " in relation to the rights of the parties to the constitutional compact." "On any other hypothesis the delegation of judicial power would annul the authority dele gating it." Who, then, are the parties to this contract? Who did delegate the judicial power? Let the instrument answer for itself. The people of the United States are the parties to the Constitution. The people of the United States delegated the judicial power. It was not a delegation by the people of one State, but by the people of all the States. Why, then, is not a judicial decision binding in each State, until all who delegated the power in some constitutional manner concur in annulling or overruling the decision? Where shall we find the clause which gives the power to each State to construe the Constitution for all, and thus of itself to supersede in its own favor the construction of all the rest? Would not this be justly deemed a delegation of judicial power which would annul the authority delegating it?1 Since the whole people of the United States have concurred in estab lishing the Constitution, it would seem most consonant with reason to presume, in the absence of all contrary stipulations, that they did not mean that its obligatory force should depend upon the dictate or opinion of any single State. Even under the confederation (as has been already stated) it was unanimously resolved by Congress that "as State legislatures are not competent to the making of such compacts or treaties [with foreign states], 80 neither are they competent in that capacity authoritatively to decide

1 There is vast force in the reasoning of Mr. Webster on this subject, in his great speech on Mr. Foot's resolutions in the Senate, in 1830, which well deserves the attention of every statesman and jurist. See 4 Elliot's Debates, 338, 339, 343, 344, and Webster's Speeches, p. 407, 408, 418, 419, 420; Id. 430, 431, 432.

on or ascertain the construction and sense of them." And the reasoning by which this opinion is supported seems absolutely unanswerable. If this was true under such an instrument, and that construction was avowed before the whole American people and brought home to the knowledge of the State legislatures, how can we avoid the inference that under the Constitution, where an express judicial power in cases arising under the Constitution was provided for, the people must have understood and intended that the States should have no right to question or control such judicial interpretation?

of

§383. In the next place, as the judicial power extends to all cases arising under the Constitution, and that Constitution is declared to be the supreme law, that supremacy would naturally be construed to extend not only over the citizens, but over the States.2 This, however, is not left to implication, for it is declared to be the supreme law of the land," anything in the Constitution or laws any State to the contrary notwithstanding." The people of any State cannot, then, by any alteration of their State constitution, destroy or impair that supremacy. How, then, can they do it in any other less direct manner? Now, it is the proper function of the judicial department to interpret laws, and by the very terms of the Constitution to interpret the supreme law. Its interpretation, then, becomes obligatory and conclusive upon all the departments of the Federal government, and upon the whole people, so far as their rights and duties are derived from or affected by that Constitution. If, then, all the departments of the national government may rightfully exercise all the powers which the judicial department has, by its interpretation, declared to be granted by the Constitution, and are prohibited from exercising those which are thus declared not to be granted by it, would it not be a solecism to hold, notwithstanding, that such rightful exercise should not be deemed the supreme law of the land, and such prohibited powers should still be deemed granted? It would seem repugnant to the first notions of justice, that in respect to the same instrument of government different powers and duties and obligations should arise, and different rules should prevail, at the same time, among the governed, from a right of interpreting the same words (manifestly used in

1 Journals of Congress, April 13, 1787, p. 32, &c. Rawle on the Constitution, App. 2, p. 316, &c.

2 The Federalist, No. 33.

one sense only) in different, nay, in opposite senses. If there ever was a case, in which uniformity of interpretation might well be deemed a necessary postulate, it would seem to be that of a fundamental law of a government. It might otherwise follow that the same individual, as a magistrate, might be bound by one rule, and in his private capacity by another, at the very same

moment.

§ 384. There would be neither wisdom nor policy in such a doctrine; and it would deliver over the Constitution to interminable doubts, founded upon the fluctuating opinions and characters of those who should from time to time be called to administer it. Such a Constitution could in no just sense be deemed a law, much less a supreme or fundamental law. It would have none of the certainty or universality which are the proper attributes of such a sovereign rule. It would entail upon us all the miserable servitude which has been deprecated as the result of vague and uncertain jurisprudence. Misera est servitus, ubi jus est vagum aut incertum. It would subject us to constant discussions, and perhaps to civil broils, from the perpetually recurring conflicts upon constitutional questions. On the other hand, the worst that could happen from a wrong decision of the judicial department would be that it might require the interposition of Congress, or, in the last resort, of the amendatory power of the States, to redress the grievance.

§ 385. We find the power to construe the Constitution expressly confided to the judicial department, without any limitation or qualification as to its conclusiveness. Who, then, is at liberty, by general implications, not from the terms of the instrument, but from mere theory and assumed reservations of sovereign right, to insert such a limitation or qualification? We find, that to produce uniformity of interpretation, and to preserve the Constitution as a perpetual bond of union, a supreme arbiter or authority of construing is, if not absolutely indispensable, at least of the highest possible practical utility and importance. Who, then, is at liberty to reason down the terms of the Constitution, so as to exclude their natural force and operation?

§ 386. We find that it is the known course of the judicial department of the several States to decide in the last resort upon all constitutional questions arising in judgment; and that this has always been maintained as a rightful exercise of authority, and

conclusive upon the whole State.1 As such, it has been constantly approved by the people, and never withdrawn from the courts by any amendment of their constitutions, when the people have been called to revise them. We find that the people of the several States have constantly relied upon this last judicial appeal as the bulwark of their State rights and liberties; and that it is in perfect consonance with the whole structure of the jurisprudence of the common law. Under such circumstances is it not most natural to presume that the same rule was intended to be applied to the Constitution of the United States? And when we find that the judicial department of the United States is actually intrusted with a like power, is it not an irresistible presumption that it had the same object, and was to have the same universally conclusive effect? Even under the confederation, an instrument framed with infinitely more.jealousy and deference for State rights, the judgments of the judicial department appointed to decide controversies between States were declared to be final and conclusive; and the appellate power in other cases was held to overrule all State decisions and State legislation.2

§ 387. If, then, reasoning from the terms of the Constitution and the known principles of our jurisprudence, the appropriate conclusion is that the judicial department of the United States is, in the last resort, the final expositor of the Constitution as to all questions of a judicial nature, let us see, in the next place, how far this reasoning acquires confirmation from the past history of the Constitution and the practice under it.

3

§388. That this view of the Constitution was taken by its framers and friends, and was submitted to the people before its adoption, is positively certain. The Federalist says, "Under the national government, treaties and articles of treaties, as well as the law of nations, will always be expounded in one sense and executed in the same manner; whereas adjudications on the same points and questions in thirteen States, or three or four confederacies, will not always accord or be consistent; and that as well from the variety of independent courts and judges appointed by different and independent governments as from the different 1 2 Elliot's Debates, 248, 328, 329, 395; Grimke's Speech in 1828, p. 25, &c.; Dane's App. § 44, 45, p. 52 to 59; Id. § 48, p. 62.

* Dane's App. § 52, p. 65; Penhallow v. Doane, 3 Dall. 54; Journals of Congress, 1779, Vol. 5, p. 86 to 90; 4 Cranch, 2.

The Federalist, No. 3.