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§ 392. In this review of the power of the judicial department, upon a question of its supremacy in the interpretation of the Conare, 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 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 self-protection; 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.'
"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
stitution, it has not been thought necessary to rely on the deliberate judgments of that department in affirmance of it. But it may be proper to add, that the judicial department has not only constantly exercised this right of interpretation in the last resort, but its whole course of reasonings and operations has proceeded upon the ground that, once made, the interpretation was conclusive, as well upon the States as the people.1
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 against a State, and not to the decision of constitutional questions in the abstract. At a subsequent period of the convention, the judicial power was expressly extended to all cases arising under the Constitution, laws, and treaties of the United States, and to all controversies to which the United States should be a party, (Journal of Convention, 27th Aug. p. 298,) thus covering the whole ground of a right to decide constitutional questions of a judicial nature. And this, as the Federalist informs us, was the substi tute for a negative upon State laws, and the only one which was deemed safe or efficient. The Federalist, No. 80.
1 Martin v. Hunter, 1 Wheat. R. 304, 334, &c., 342, 348; Cohens v. The State of Virginia, 6 Wheat. R. 264, 376, 377 to 392; Id. 413 to 423; Bank of Hamilton v. Dudley, 2 Peters, R. 524; Ware v. Hylton, 3 Dall. 199. The language of Mr. Chief Justice Marshall, in delivering the opinion of the court in Cohens v. Virginia, (6 Wheat. 384 to 390,) presents the argument in favor of the jurisdiction of the judicial department in a very forcible manner. "While weighing arguments drawn from the nature of government and from the general spirit of an instrument, and urged for the purpose of narrowing the construction which the words of that instrument seem to require, it is proper to place in the opposite scale those principles, drawn from the same sources, which go to sustain the words in their full operation and natural import. One of these, which has been pressed with great force by the counsel for the plaintiffs in error, is, that the judicial power of every well-constituted government must be coextensive with the legislative, and must be capable of deciding every judicial question which grows out of the Constitution and laws.
"If any proposition may be considered as a political axiom, this, we think, may be so considered. In reasoning upon it, as an abstract question, there would probably exist no contrariety of opinion respecting it. Every argument proving the necessity of the department proves also the propriety of giving this extent to it. We do not mean to say that the jurisdiction of the courts of the Union should be construed to be coextensive with the legislative, merely because it is fit that it should be so; but we mean to say, that this fitness furnishes an argument in construing the Constitution which ought never to be overlooked, and which is most especially entitled to consideration when we are inquiring whether the words of the instrument, which purport to establish this principle, shall be contracted for the purpose of destroying it.
"The mischievous consequences of the construction, contended for on the part of Virginia, are also entitled to great consideration. It would prostrate, it has been said, the government and its laws at the feet of every State in the Union. And would not this be its effect? What power of the government could be executed by its own means, in
§ 393. But it may be asked, as it has been asked, what is to be the remedy, if there be any misconstruction of the Constitution any State disposed to resist its execution by a course of legislation? The laws must be executed by individuals acting within the several States. If these individuals may be exposed to penalties, and if the courts of the Union cannot correct the judgments by which these penalties may be enforced, the course of the government may be, at any time, arrested by the will of one of its members. Each member will possess a veto on the will of the whole.
"The answer which has been given to this argument does not deny its truth, but insists that confidence is reposed, and may be safely reposed, in the State institutions; and that, if they shall ever become so insane or so wicked as to seek the destruction of the government, they may accomplish their object by refusing to perform the functions assigned to them.
"We readily concur with the counsel for the defendant in the declaration that the cases, which have been put, of direct legislative resistance, for the purpose of opposing the acknowledged powers of the government, are extreme cases, and in the hope that they will never occcur; but we cannot help believing that a general conviction of the total incapacity of the government to protect itself and its laws in such cases would contribute in no inconsiderable degree to their occurrence.
"Let it be admitted that the cases which have been put are extreme and improbable, yet there are gradations of opposition to the laws, far short of those cases, which might have a baneful influence on the affairs of the nation. Different States may entertain different opinions on the true construction of the constitutional powers of Congress. We know that at one time the assumption of the debts contracted by the several States during the war of our Revolution was deemed unconstitutional by some of them. We know, too, that at other times certain taxes imposed by Congress have been pronounced unconstitutional. Other laws have been questioned partially, while they were supported by the great majority of the American people. We have no assurance that we shall be less divided than we have been. States may legislate in conformity to their opinions, and may enforce those opinions by penalties. It would be hazarding too much to assert that the judicatures of the States will be exempt from the prejudices by which the legislatures and people are influenced, and will constitute perfectly impartial tribunals. In many States the judges are dependent for office and for salary on the will of the legislature. The Constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance which that Constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals, where this independence may not exist, in all cases where a State shall prosecute an individual who claims the protection of an act of Congress. These prosecutions may take place even without a legislative act. A person, making a seizure under an act of Congress, may be indicted as a trespasser if force has been employed, and of this a jury may judge. How extensive may be the mischief if the first decision in such cases should be final!
"These collisions may take place in times of no extraordinary commotion. But a constitution is framed for ages to come, and is designed to approach immortality, as nearly as human institutions can approach it. Its course cannot always be tranquil. It is exposed to storms and tempests, and its framers must be unwise statesmen indeed, if they have not provided it, as far as its nature will permit, with the means of self-preservation from the perils it may be destined to encounter. No government ought to be so defective in its organization as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day. Courts of justice are the means most usually employed; and it is reasonable to expect,
on the part of the government of the United States or its functionaries, and any power exercised by them not warranted by its
that a government should repose on its own courts rather than on others. There is certainly nothing in the circumstances under which our Constitution was formed, nothing in the history of the times, which would justify the opinion, that the confidence reposed in the States was so implicit as to leave in them and their tribunals the power of resisting or defeating, in the form of law, the legitimate measures of the Union. The requisitions of Congress, under the confederation, were as constitutionally obligatory as the laws enacted by the present Congress. That they were habitually disregarded, is a fact of universal notoriety. With the knowledge of this fact, and under its full pressure, a convention was assembled to change the system. Is it so improbable that they should confer on the judicial department the power of construing the Constitution and laws of the Union in every case, in the last resort, and of preserving them from all violation from every quarter, so far as judicial decisions can preserve them, that this improbability should essentially affect the construction of the new system? We are told, and we are truly told, that the great change which is to give efficacy to the present system is its ability to act on individuals directly, instead of acting through the instrumentality of State governments. But ought not this ability, in reason and sound policy, to be applied directly to the protection of individuals employed in the execution of the laws, as well as to their coercion? Your laws reach the individual without the aid of any other power; why may they not protect him from punishment for performing his duty in executing them ?
"The counsel for Virginia endeavor to obviate the force of these arguments by saying that the dangers they suggest, if not imaginary, are inevitable; that the Constitution can make no provision against them; and that, therefore, in construing that instrument, they ought to be excluded from our consideration. This state of things, they say, cannot arise until there shall be a disposition so hostile to the present political system as to produce a determination to destroy it; and when that determination shall be produced, its effects will not be restrained by parchment stipulations. The fate of the Constitution will not then depend on judicial decisions. But, should no appeal be made to force, the States can put an end to the government by refusing to act. They have only not to elect senators, and it expires without a struggle.
It is very true that, whenever hostility to the existing system shall become universal, it will be also irresistible. The people made the Constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people, not in any subdivision of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it.
"The acknowledged inability of the government, then, to sustain itself against the public will, and, by force or otherwise, to control the whole nation, is no sound argument in support of its constitutional inability to preserve itself against a section of the nation acting in opposition to the general will.
"It is true, that if all the States, or a majority of them, refuse to elect senators, the legislative powers of the Union will be suspended. But if any one State shall refuse to elect them, the Senate will not on that account be the less capable of performing all its functions. The argument founded on this fact would seem rather to prove the subordination of the parts to the whole, than the complete independence of any one of them. The framers of the Constitution were, indeed, unable to make any provisions which should protect that instrument against a general combination of the States, or of the people, for its destruction; and, conscious of this inability, they have not made the
true meaning? To this question a general answer may be given in the words of its early expositors: "The same as if the State legislatures should violate their respective constitutional authorities." In the first instance, if this should be by Congress, "the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and, in the last resort, a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers. The truth is, that this ultimate redress may be more confided in against unconstitutional acts of the Federal than of the State legislatures, for this plain reason, that, as every act of the former will be an invasion of the rights of the latter, these will ever be ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of Federal representatives. There being no such intermediate body between the State legislatures and the people, interested in watching the conduct of the former, violations of the State constitution are more likely to remain. unnoticed and unredressed.”1
§ 394. In the next place, if the usurpation should be by the President, an adequate check may be generally found, not only in the elective franchise, but also in the controlling power of Congress, in its legislative or impeaching capacity, and in an appeal to the judicial department. In the next place, if the usurpation should be by the judiciary, and arise from corrupt motives, the power of impeachment would remove the offenders; and in most other cases the legislative and executive authorities could interpose an efficient barrier. A declaratory or prohibitory law would, in many cases, be a complete remedy. We have, also, so far at least as a conscientious sense of the obligations of duty, sanctioned by an oath of office, and an indissoluble responsibility to the people for the exercise and abuse of power, on the part of different departments of the government, can influence human
attempt. But they were able to provide against the operation of measures adopted in any one State, whose tendency might be to arrest the execution of the laws, and this it was the part of true wisdom to attempt. We think they have attempted it."
See also M'Culloch v. Maryland (4 Wheat, 316, 405, 406). See also the reasoning of Mr. Chief Justice Jay, in Chisholm v. Georgia (2 Dall. 419); Osborn v. Bank of the United States (9 Wheat. 738, 818, 819); and Gibbons v. Ogden (9 Wheat. 1, 210).
1 The Federalist, No. 44; 1 Wilson's Law Lectures, 461, 462; Dane's App. § 58,