« AnteriorContinuar »
places — tries to blind his own eyes and that of others to the real nature of the consequences which would naturally result on the adoption of the Constitution with regard to the slave.
In speaking of the house of representatives, in relation to the supposed tendency of the plan of the convention to elevate the few above the many, he remarks,—
“If it be asked, what is to restrain the house of representatives from making legal discriminations in favor of themselves, and a particular class of society 2 I answer, the genius of the whole system, the nature of just and constitutional laws, and, above all, the vigilant and manly spirit which actuates the people of America, – a spirit which nourishes freedom, and, in return, is nourished by it.
“If this spirit should ever be so debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty.”
We will ask here, if, in the new position which the South has now taken on the subject of slavery, it is a blessing, and not an evil; that it must and should be sustained by laws, thereby constituting two distinct classes of society, one favored, and the other treated with contumely; is it not just the state of society of which Mr. Madison speaks 3 and if the American people sanction it, will they not tolerate any thing “but liberty " and have we not already had a foretaste of what may be expected, if slavery is much longer continued, in the lynchings and burnings, gaggings
and rifling post-offices, refusing petitions by congress, &c. &c. : These things cast a shadow before not to be misunderstood, and we think this view of the subject completely puts to rest the ideas expressed in the previous quotation, and shows what a baseless foundation Mr. Madison had there to stand upon.
Respecting the power of the Courts.
Mr. Hamilton, in speaking of the judicial depart ment, makes the following observations:
“Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from the imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged, that the authority which can declare the acts of another void must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all of the American constitutions, a brief discussion of the grounds on which it rests may not be unexceptionable. “There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal, that the servant is above his master, that the representatives of the people are superior to the people themselves, that mere actions, by virtue of powers, may do not only what their powers do not authorize, but what they forbid. “If it be said that the legislative body are the constitutional judges of their own powers, and that the construc
tion they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, when it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred : in other words, the Constitution ought to be preferred to the statute; the intention of the people to the intention of their agents. “Nor does the conclusion, by any means, suppose a superiority of the judicial to the legislative power. It only supposes the power of the people is superior to both; and that, when the will of the legislature, declared in the statutes, stands in opposition to that of the people, declared in the Constitution, the judges oughton be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those that are not fundamental.”" “But, in regard to the interfering acts of a superior and subordinate authority, of original derivating power, the nature and reason of the thing indicate the course of that rule as proper to be followed. They teach us that a prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that, accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter, and disregard the for
* Federalist, p. 434.
In answer to an objection made to the above construction of the powers of the Supreme Court, he adds, –
“In the first place, there is not a syllable in the plan which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them greater latitude in this respect than may be claimed by the courts of every State. I admit, however, the Constitution ought to be the standard of construction for the laws; and, whenever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited constitution; and, as far as it is true, is equally applicable to most, if not all, of the State governments. There can be no objection, therefore, on this account, to the federal judicature, which will not be against the local judicatures in general, and which will not serve to condemn every constitution that attempts to set bounds to legislative discretion.””
“It may be esteemed the basis of the Union, that “the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” And, if it be a just principle, that every government ought to possess the means of executing its own provisions by its own authority, it will follow that, in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State and its citizens.” " “After having discussed and laid down the principles which ought to regulate the Constitution of the federal judiciary, we will proceed to test, by these principles, the particulars of which, according to the plan of the convention, it is to be composed : “First, to “all cases in law and equity, arising under the Constitution and the laws of the United States.” It has been asked, what is meant by ‘cases arising under the Constitution,’ in contradistinction to those arising under the laws of the United States ? The difference has already been explained. All the restrictions upon the authority of the State legislatures furnish examples. They are not, for instance, to emit paper money; but the interdiction results from the Constitution,” and will have no connection with any law of the United States. Should paper money, notwithstanding, be emitted, the controversies concerning it would be cases arising under the Constitution, and not under the laws of the United States, in the ordinary signification of those terms. This may serve as a sample of the whole. “It may also be asked, what need of the word “equity ' What equitable causes can grow out of the Constitution and the laws of the United States ? There is
Federalist, p. 436. * Idem, p. 450.