§ 390. The same doctrine was constantly avowed in the State conventions called to ratify the Constitution. With some persons it formed a strong objection to the Constitution; with others it was deemed vital to its existence and value. So, that it is indisputable, that the Constitution was adopted under a full knowledge of this exposition of its grant of power to the judicial department.2 § 391. This is not all. The Constitution has now been in full operation more than forty years; and during this period the Supreme Court has constantly exercised this power of final interpretation in relation not only to the Constitution and laws of the Union, but in relation to State acts and State constitutions and laws, so far as they affected the Constitution and laws and treaties of the United States. 3 (a) Their decisions upon these grave would pervade the Union, &c. That to insure these, extensive authorities were necessary; particularly so were they in a tribunal, constituted as this is, whose duty it would be, not only to decide all national questions which should arise within the Union, but to control and keep the State judiciaries within their proper limits, whenever they should attempt to interfere with the power." Debates in 1778, printed by A. E. Miller, 1831, Charleston, p. 7. 1 It would occupy too much space to quote the passages at large. Take for instance, in the Virginia debates, Mr. Madison's remarks: It may be a misfortune, that in organizing any government the explication of its authority should be left to any of its co-ordinate branches. There is no example in any country where it is otherwise. There is no new policy in submitting it to the judiciary of the United States." 2 Elliot's Debates, 390. See also Id. 380, 383, 395, 400, 404, 418. See also North Carolina Debates, 3 Elliot's Debates, 125, 127, 128, 130, 133, 134, 139, 141, 142, 143; Pennsylvania Debates, 3 Elliot's Debates, 280, 313. Mr. Luther Martin, in his letter to the Maryland Convention, said: "By the third article the judicial power is vested in one Supreme Court, &c. These courts, and these only, will have a right to decide upon the laws of the United States and all questions arising upon their construction, &c. Whether, therefore, any laws, &c., of Congress, or acts of its President, &c., are contrary to or warranted by the Constitution, rests only with the judges, who are appointed by Congress to determine; by whose determinations every State is bound." 3 Elliot's Debates, 44, 45; Yates's Minutes, &c. See also the Federalist, No. 78. 2 See Mr. Pinckney's Observations cited in Grimké's Speech in 1828, pp. 86, 87. 8 Dane's App. § 44, pp. 53, 54, 55; Grimké's Speech, 1828, pp. 34 to 42. (a) In this discussion it is assumed, of course, that the question arising under the Constitution has in some form become the subject of judicial controversy, so as to be brought to the notice of the court in a manner to demand its judgment. The court does not sit to declare principles of law except as they arise in actual litigation; it must - 19 VOL. I. have authority under the law to adjudicate upon some subject-matter in regard to which a controversy has arisen before it is warranted in laying down rules which are to govern any one in the construction of the Constitution or of any other law. It is, therefore, quite possible that questions of constitutional law may for a long period questions have never been repudiated or impaired by Congress.1 No State has ever deliberately or forcibly resisted the execution of the judgments founded upon them; and the highest State tribunals have, with scarcely a single exception, acquiesced in and, in most instances, assisted in executing them. During the same period, eleven States have been admitted into the Union, under a full persuasion that the same power would be exerted over them. Many of the States have, at different times within the same period, been called upon to consider and examine the grounds on which the doctrine has been maintained, at the solicitation of other States, which felt that it operated injuriously, or might operate injuriously, upon their interests. Α great majority of the States which have been thus called upon in 1 In the debates in the first Congress organized under the Constitution, the same doctrine was openly avowed, as indeed it has constantly been by the majority of Congress at all subsequent periods. See 1 Lloyd's Debates, 219 to 596; 2 Lloyd's Debates, 284 to 327. 2 Chief Justice M'Kean, in Commonwealth v. Cobbett (3 Dall. 473), seems to have adopted a modified doctrine, and to have held that the Supreme Court was not the common arbiter; but if not, the only remedy was, not by a State deciding for itself, as in case of a treaty between independent governments, but by a constitutional amendment by the States. But see, on the other hand, the opinion of Chief Justice Spencer, in Andrews v. Montgomery, 19 Johns. R. 164. never be brought to the notice of the court in a form to justify the expression of its opinion; and a practical construction may come to be settled by the action of the other departments of the government, which it would be difficult and mischievous afterwards to disturb. Indeed, as the original jurisdiction of the Supreme Court is limited, and the appellate is by the Constitution expressly conferred, “with such exceptions and under such regulations as the Congress shall prescribe" (Ex parte Yerger, 8 Wall. 85; The Lucy, Id. 307), it has been found possible by that body, in a case in which a decision on a question of constitutional power was thought not desirable, and where the question could only arise on appeal, to preclude a decision by taking away the appellate jurisdiction. This was done in McCardle's Case, 7 Wall. 506, after the appeal had been taken; the question involved being the constitution ality of the Reconstruction Acts, so called. The federal courts have also held that 1 their legislative capacities to express opinions have maintained the correctness of the doctrine, and the beneficial effects of the power, as a bond of union, in terms of the most unequivocal nature. Whenever any amendment has been proposed to change the tribunal and substitute another common umpire or interpreter, it has rarely received the concurrence of more than two or three States, and has been uniformly rejected by a great majority, either silently or by an express dissent. And instances have occurred in which the legislature of the same State has, at different times, avowed opposite opinions, approving at one time what it had denied, or at least questioned, at another. So that it may be asserted with entire confidence, that for forty years threefourths of all the States composing the Union have expressly assented to or silently approved this construction of the Constitution, and have resisted every effort to restrict or alter it. A weight of public opinion among the people for such a period, uniformly thrown into one scale so strongly and so decisively, in the midst of all the extraordinary changes of parties, the events of peace and of war, and the trying conflicts of public policy and State interests, is perhaps unexampled in the history of all other free governments. It affords as satisfactory a testi 1 Massachusetts, in her Resolve of February 12, 1799 (p. 57), in answer to the Resolutions of Virginia of 1798, declared "that the decision of all cases in law and equity, arising under the Constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the judicial court of the United States;" and "that the people in that solemn compact, which is declared to be the supreme law of the land, have not constituted the State legislatures the judges of the acts or measures of the Federal government, but have confided to them the power of proposing such amendments," &c. ; and "that by this construction of the Constitution an amicable and dispassionate remedy is pointed out for any evil which experience may prove to exist, and the peace and prosperity of the United States may be preserved without interruption." See also Dane's App. § 44, p. 56; Id. 80. Mr. Webster's Speech in the Senate, in 1830, contains an admirable exposition of the same doctrines. Webster's Speeches, 410, 419, 420, 421. In June, 1821, the House of Representatives of New Hampshire passed certain resolutions (172 yeas to 9 nays), drawn up (as is understood) by one of her most distinguished statesmen, asserting the same doctrines. Delaware, in January, 1831, and Connecticut and Massachusetts held the same, in May, 1831. 2 Virginia and Kentucky denied the power in 1798 and 1800; Massachusetts, Delaware, Rhode Island, New York, Connecticut, New Hampshire, and Vermont disapproved of the Virginia Resolutions, and passed counter resolutions. (North American Review, October, 1830, p. 500). No other State appears to have approved the Virginia Resolutions. (Ibid.) In 1810 Pennsylvania proposed the appointment of another tribunal than the Supreme Court to determine disputes between the general and State gov mony in favor of the just and safe operation of the system as can well be imagined; and, as a commentary upon the Constitution itself, it is as absolutely conclusive as any ever can be, and affords the only escape from the occurrence of civil conflicts, and the delivery over of the subject to interminable disputes.1 ernments. Virginia, on that occasion, affirmed that the Supreme Court was the proper tribunal; and in that opinion New Hampshire, Vermont, North Carolina, Maryland, Georgia, Tennessee, Kentucky, and New Jersey concurred; and no one State approved of the amendment (North American Review, October, 1830, pp. 507 to 512; Dane's App. § 55, p. 67; 6 Wheat. R. 358, note). Recently, in March, 1831, Pennsylvania has resolved that the 25th section of the judiciary act of 1789, ch. 20, which gives the Supreme Court appellate jurisdiction from State courts on constitutional questions, is authorized by the Constitution and sanctioned by experience, and also all other laws empowering the Federal judiciary to maintain the supreme laws. 1 Upon this subject the speech of Mr. Webster in the Senate, in 1830, presents the whole argument in a very condensed and powerful form. The following passage is selected as peculiarly appropriate: "The people, then, sir, erected this government. They gave it a Constitution, and in that Constitution they have enumerated the powers which they bestow on it. They have made it a limited government. They have defined its authority. They have restrained it to the exercise of such powers as are granted; and all others, they declare, are reserved to the States or the people. But, sir, they have not stopped here. If they had, they would have accomplished but half their work. No definition can be so clear as to avoid possibility of doubt; no limitation so precise as to exclude all uncertainty. Who, then, shall construe this grant of the people? Who shall interpret their will, where it may be supposed they have left it doubtful? With whom do they repose this ultimate right of deciding on the powers of the government? Sir, they have settled all this in the fullest manner. They have left it with the government itself, in its appropriate branches. Sir, the very chief end, the main design, for which the whole Constitution was framed and adopted, was to establish a government that should not be obliged to act through State agency, or depend on State opinion and State discretion. The people had had quite enough of that kind of government under the confederacy. Under that system the legal action, the application of law to individuals, belonged exclusively to the States. Congress could only recommend, their acts were not of binding force till the States had adopted and sanc- tioned them. Are we in that condition still? Are we yet at the mercy of State discretion and State construction? Sir, if we are, then vain will be our attempt to maintain the Constitution under which we sit. 'But, sir, the people have wisely provided, in the Constitution itself, a proper, suitable mode and tribunal for settling questions of constitutional law. There are, in the Constitution, grants of powers to Congress, and restrictions on these powers. There are, also, prohibitions on the States. Some authority must, therefore, necessarily exist, having the ultimate jurisdiction to fix and ascertain the interpretation of these grants, restrictions, and prohibitions. The Constitution has itself pointed out, ordained, and established that authority. How has it accomplished this great and essential end? By declaring, sir, that the Constitution and the laws of the United States made in pursuance thereof shall be the supreme law of the land, anything in the Constitution or laws of any State to the contrary notwithstanding.' "This sir, was the first great step. By this the supremacy of the Constitution and § 392. In this review of the power of the judicial department, upon a question of its supremacy in the interpretation of the laws of the United States is declared. The people so will it. No State law is to be valid which comes in conflict with the Constitution, or any law of the United States passed in pursuance of it. But who shall decide this question of interference? To whom lies the last appeal? This, sir, the Constitution itself decides, also, by declaring 'that the judicial power shall extend to all cases arising under the Constitution and laws of the United States.' These two provisions, sir, cover the whole ground. They are, in truth, the keystone of the arch. With these, it is a Constitution; without them, it is a confederacy. In pursuance of these clear and express provisions, Congress established at its very first session, in the judicial act, a mode for carrying them into full effect, and for bringing all questions of constitutional power to the final decision of the Supreme Court. It then, sir, became a government. It then had the means of selfprotection; and but for this it would, in all probability, have been now among things which are past. Having constituted the government, and declared its powers, the people have further said that since somebody must decide on the extent of these powers, the government shall itself decide; subject, always, like other popular governments, to its responsibility to the people. And now, sir, I repeat, how is it that a State legislature acquires any power to interfere? Who, or what, gives them the right to say to the people, 'We, who are your agents and servants for one purpose, will undertake to decide that your other agents and servants, appointed by you for another purpose, have transcended the authority you gave them?' The reply would be, I think, not impertinent, Who made you a judge over another's servants? To their own masters they stand or fall.' 66 'Sir, I deny this power of State legislatures altogether. It cannot stand the test of examination. Gentlemen may say that, in an extreme case, a State government might protect the people from intolerable oppression. Sir, in such a case the people might protect themselves, without the aid of the State governments. Such a case warrants revolution. It must make, when it comes, a law for itself. A nullifying act of a State legislature cannot alter the case, nor make resistance any more lawful. In maintaining these sentiments, sir, I am but asserting the rights of the people. I state what they have declared, and insist on their right to declare it. They have chosen to repose this power in the general government, and I think it my duty to support it, like other constitutional powers." See also 1 Wilson's Law Lectures, 461, 462. It is truly surprising that Mr. VicePresident Calhoun, in his letter of the 28th of August, 1832, to Governor Hamilton (published while the present work was passing through the press), should have thought that a proposition merely offered in the convention, and referred to a committee for their consideration, that "the jurisdiction of the Supreme Court shall be extended to all controversies between the United States and an individual State, or the United States and the citizens of an individual State" (Journal of Convention, 20th Aug. p. 265), should, in connection with others giving a negative on State laws, establish the conclusion that the convention which framed the Constitution was opposed to granting the power to the general government in any form to exercise any control whatever over a State by force, veto, or judicial process, or in any other form. This clause for conferring jurisdiction on the Supreme Court in controversies between the United States and the States, must, like the other controversies between States or between individuals, referred to the judicial power, have been intended to apply exclusively to suits of a civil nature, respecting property, debts, contracts, or other claims by the United States |