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local laws, which may affect and influence them. The wisdom of the convention in committing such questions to the jurisdiction and judgment of courts appointed by, and responsible only to, one national government, cannot be too much commended." Again, referring to the objection taken, that the government was national, and not a confederacy of sovereign States, and after stating that the jurisdiction of the national government extended to certain enumerated objects only, and left the residue to the several States, it proceeds to say: 1 "It is true, that in controversies between the two jurisdictions (State and national) the tribunal which is ultimately to decide is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made according to the rules of the Constitution, and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact. And that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated." 2
§ 389. The subject is still more elaborately considered in another number, which treats of the judicial department in relation to the extent of its powers. It is there said, that there ought always to be a constitutional method of giving efficacy to constitutional provisions; that if there are such things as political axioms, the propriety of the judicial department of a government being coextensive with its legislature may be ranked among the number;4 that the mere necessity of uniformity in the interpretation of the national law decides the question; that thirteen independent courts of final jurisdiction over the same causes is a hydra of government, from which nothing but contradiction and confusion can proceed ; that controversies between the nation and its members can only be properly referred to the national tribunal; that the peace of the whole ought not to be left at the disposal of a part; and that whatever practices may have a tendency to disturb the harmony of the States are proper objects of Federal superintendence and control.5
1 The Federalist, No. 39.
3 The Federalist, No. 80.
2 See also the Federalist, No. 33.
* The same remarks will be found pressed with great force by Mr. Chief Justice Marshall, in delivering the opinion of the court in Cohens v. Virginia (6 Wheat. 264, 384). • In the Federalist, No. 78 and 82, the same course of reasoning is pursued, and the
§ 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 final nature of the appellate jurisdiction of the Supreme Court is largely insisted on. In the convention of Connecticut, Mr. Ellsworth (afterwards Chief Justice of the United States) used the following language: "This Constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is the constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it void. On the other hand, if the States go beyond their limits, if they make a law which is a usurpation upon the general government, the law is void, and upright and independent judges will declare it. Still, however, if the United States and the individual States will quarrel, if they want to fight, they may do it, and no frame of government can possibly prevent it." In the debates in the South Carolina legislature, when the subject of calling a convention to ratify or reject the Constitution was before them, Mr. Charles Pinckney (one of the members of the convention) avowed the doctrine in the strongest terms. "That a supreme Federal jurisdiction was indispensable," said he, cannot be denied. equally true, that, in order to insure the administration of justice, it was necessary to give all the powers, original as well as appellate, the Constitution has enumerated. Without it we could not expect a due observance of treaties, that the State judiciaries would confine themselves within their proper sphere, or that a general sense of justice 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, p. 86, 87.
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. Their decisions upon these grave questions have never been repudiated or impaired by Congress.2 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.3 During the same period,
1 Dane's App. § 44, p. 53, 54, 55; Grimké's Speech, 1828, p. 34 to 42. [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 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 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 Wal. 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 Wal. 506, after the appeal had been taken; the question involved being the constitutionality of the Reconstruction Acts, so called. Of the propriety of such action we say nothing here.
The Federal courts have also held that though they may compel the performance of mere ministerial duties by an officer of the United States, (Marbury v. Madison, 1 Cranch, 137; Kendall v. United States, 12 Pet. 524; United States v. Guthrie, 17 How. 284,) yet they have no power to interfere, to require the performance of purely political duties, or to restrain or control the executive in the exercise of discretionary powers. The allegation that he is proceeding to put in force an unconstitutional law does not give a court a jurisdiction to interfere. Mississippi v. Johnson, 4 Wal. 475. The laws in question here were also the Reconstruction Acts. See also Georgia v. Stanton, 6
2 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. 8 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
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. A great majority of the States which have been thus called upon in 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.1 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 three fourths 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
by the States. But see, on the other hand, the opinion of Chief Justice Spencer, in Andrews v. Montgomery, 19 Johns. R. 164.
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.
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 testimony 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.2
1 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 governments. 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, p. 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.
2 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 sanctioned 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