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minds, some additional guards against known and deliberate usurpations; for both are provided for in the Constitution itself. "The wisdom and the discretion of Congress, (it has been justly observed,) their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, -as, for example, that of declaring war, the sole restraints; on this they have relied to secure them from abuse. They are the restraints on which the people must often solely rely in all representative governments." 1
§ 395. But in the next place, (and it is that which would furnish a case of most difficulty and danger, though it may fairly be presumed to be of rare occurrence,) if the legislative, executive, and judicial departments should concur in a gross usurpation, there is still a peaceable remedy provided by the Constitution. It is by the power of amendment, which may always be applied at the will of three fourths of the States. If, therefore, there should be a corrupt co-operation of three fourths of the States for permanent usurpation, (a case not to be supposed, or if supposed, it differs not at all in principle or redress from the case of a majority of a State or nation having the same intent,) the case is certainly irremediable under any known forms of the Constitution. The States may now, by a constitutional amendment, with few limitations, change the whole structure and powers of the government, and thus legalize any present excess of power. And the general right of a society in other cases to change the government at the will of a majority of the whole people, in any manner that may suit its pleasure, is undisputed, and seems indisputable. If there be any remedy at all for the minority in such cases, it is a remedy never provided for by human institutions. It is by a resort to the ultimate right of all human beings in extreme cases to resist oppression, and to apply force against ruinous injustice.2
§ 396. As a fit conclusion to this part of these commentaries, we cannot do better than to refer to a confirmatory view which has been recently presented to the public by one of the framers of the Constitution, who is now, it is believed, the only surviving member of the Federal convention, and who, by his early as well 1 Gibbons v. Ogden, 9 Wheat. R. 1, 197. See also, on the same subject, the observations of Mr. Justice Johnson in delivering the opinion of the court, in Anderson v. Dunn, 6 Wheat. R. 204, 226.
2 Sec Webster's Speeches, p. 408, 409; 1 Black. Comm. 161, 162. er's Black. Comm. App. 73 to 75.
1 Black. Comm. 161, 162. See also 1 Tuck
as his later labors, has entitled himself to the gratitude of his country as one of its truest patriots and most enlightened friends. Venerable, as he now is, from age and character, and absolved from all those political connections which may influence the judgment and mislead the mind, he speaks from his retirement in a voice which cannot be disregarded, when it instructs us by its profound reasoning, or admonishes us of our dangers by its searching appeals. However particular passages may seem open to criticism, the general structure of the argument stands on immovable foundations, and can scarcely perish but with the Constitution which it seeks to uphold.1
1 Reference is here made to Mr. Madison's Letter, dated August, 1830, to Mr. Edward Everett, published in the North American Review for October, 1830. The following extract is taken from p. 537 et seq.:
"In order to understand the true character of the Constitution of the United States, the error, not uncommon, must be avoided of viewing it through the medium either of a consolidated government or of a confederated government, whilst it is neither the one nor the other, but a mixture of both. And having, in no model, the similitudes and analogies applicable to other systems of government, it must, more than any other, be its own interpreter according to its text and the facts of the case.
"From these it will be seen that the characteristic peculiarities of the Constitution are, 1, the mode of its formation; 2, the division of the supreme powers of government between the States in their united capacity and the States in their individual capacities. "1. It was formed, not by the governments of the component States, as the Federal government for which it was substituted was formed. Nor was it formed by a majority of the people of the United States, as a single community, in the manner of a consolidated government.
It was formed by the States, that is, by the people in each of the States, acting in their highest sovereign capacity; and formed consequently by the same authority which formed the State constitutions.
"Being thus derived from the same source as the constitutions of the States, it has within each State the same authority as the constitution of the State; and is as much a constitution, in the strict sense of the term, within its prescribed sphere, as the constitutions of the States are within their respective spheres; but with this obvious and essential difference, that, being a compact among the States in their highest sovereign capacity, and constituting the people thereof one people for certain purposes, it cannot be altered or annulled at the will of the States individually, as the constitution of a State may be at its individual will.
"2. And that it divides the supreme powers of government between the government of the United States and the governments of the individual States, is stamped on the face of the instrument; the powers of war and of taxation, of commerce and of treaties, and other enumerated powers vested in the government of the United States being of as high and sovereign a character as any of the powers reserved to the State govern
"Nor is the government of the United States, created by the Constitution, less a government in the strict sense of the term, within the sphere of its powers, than the governments created by the constitutions of the States are within their several spheres. It is, like them, organized into legislative, executive, and judiciary departments. It
operates, like them, directly on persons and things. And, like them, it has at command a physical force for executing the powers committed to it. The concurrent operation in certain cases is one of the features marking the peculiarity of the system.
"Between these different constitutional governments, the one operating in all the States, the others operating separately in each, with the aggregate powers of government divided between them, it could not escape attention that controversies would arise concerning the boundaries of jurisdiction, and that some provision ought to be made for such occurrences. A political system that does not provide for a peaceable and authoritative termination of occurring controversies would not be more than the shadow of a government; the object and end of a real government being the substitution of law and order for uncertainty, confusion, and violence.
"That to have left a final decision, in such cases, to each of the States, then thirteen and already twenty-four, could not fail to make the Constitution and laws of the United States different in different States, was obvious; and not less obvious, that this diversity of independent decisions must altogether distract the government of the Union, and speedily put an end to the Union itself. A uniform authority of the laws is in itself a vital principle. Some of the most important laws could not be partially executed. They must be executed in all the States, or they could be duly executed in none. An impost or an excise, for example, if not in force in some States, would be defeated in others. It is well known that this was among the lessons of experience which had a primary influence in bringing about the existing Constitution. A loss of its general authority would moreover revive the exasperating questions between the States holding ports for foreign commerce and the adjoining States without them; to which are now added all the inland States, necessarily carrying on their foreign commerce through other States.
"To have made the decisions under the authority of the individual States co-ordinate in all cases with decisions under the authority of the United States, would unavoidably produce collisions incompatible with the peace of society, and with that regular and efficient administration which is of the essence of free governments. Scenes could not be avoided in which a ministerial officer of the United States and the correspondent officer of an individual State would have rencounters in executing conflicting decrees, the result of which would depend on the comparative force of the local posses attending them, and that a casualty depending on the political opinions and party feelings in different States.
"To have referred every clashing decision, under the two authorities, for a final decision to the States as parties to the Constitution, would be attended with delays, with inconveniences, and with expenses amounting to a prohibition of the expedient; not to mention its tendency to impair the salutary veneration for a system requiring such frequent interpositions, nor the delicate questions which might present themselves as to the form of stating the appeal, and as to the quorum for deciding it.
"To have trusted to negotiation for adjusting disputes between the government of the United States and the State governments, as between independent and separate sovereignties, would have lost sight altogether of a constitution and government for the Union, and opened a direct road from a failure of that resort to the ultima ratio between nations wholly independent of and alien to each other. If the idea had its origin in the process of adjustment between separate branches of the same government, the analogy entirely fails. In the case of disputes between independent parts of the same government, neither part being able to consummate its will, nor the government to proceed without a concurrence of the parts, necessity brings about an accommodation. In disputes between a State government and the government of the United States, the case is practically as well as theoretically different; each party possessing all the departments of an organized government, legislative, executive, and judiciary, and having
each a physical force to support its pretensions. Although the issue of negotiation might sometimes avoid this extremity, how often would it happen among so many States, that an unaccommodating spirit in some would render that resource unavailing ? A contrary supposition would not accord with a knowledge of human nature or the evidence of our own political history.
"The Constitution, not relying on any of the preceding modifications for its safe and successful operation, has expressly declared, on the one hand, 1, 'that the Constitution and the laws made in pursuance thereof, and all treaties made under the authority of the United States, shall be the supreme law of the land; 2, that the judges of every State shall be bound thereby, anything in the constitution and laws of any State to the contrary notwithstanding; 3, that the judicial power of the United States shall extend to all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made under their authority,' &c.
"On the other hand, as a security of the rights and powers of the States, in their individual capacities, against an undue preponderance of the powers granted to the government over them in their united capacity, the Constitution has relied on, 1, the responsibility of the senators and representatives in the legislature of the United States to the legislatures and people of the States; 2, the responsibility of the President to the people of the United States; and, 3, the liability of the executive and judicial functionaries of the United States to impeachment by the representatives of the people of the States, in one branch of the legislature of the United States, and trial by the representatives of the States in the other branch: the State functionaries, legislative, executive, and judicial, being at the same time, in their appointment and responsibility, altogether independent of the agency or authority of the United States.
"How far this structure of the government of the United States is adequate and safe for its objects, time alone can absolutely determine. Experience seems to have shown, that whatever may grow out of future stages of our national career, there is, as yet, a sufficient control in the popular will, over the executive and legislative departments of the government. When the alien and sedition laws were passed, in contravention to the opinions and feelings of the community, the first elections that ensued put an end to them. And whatever may have been the character of other acts, in the judgment of many of us, it is but true that they have generally accorded with the views of the majority of the States and of the people. At the present day it seems well understood that the laws which have created most dissatisfaction have had a like sanction without doors; and that, whether continued, varied, or repealed, a like proof will be given of the sympathy and responsibility of the representative body to the constituent body. Indeed, the great complaint now is, against the results of this sympathy and responsibility in the legislative policy of the nation.
"With respect to the judicial power of the United States, and the authority of the Supreme Court in relation to the boundary of jurisdiction between the Federal and the State governments, I may be permitted to refer to the thirty-ninth number of the Federalist for the light in which the subject was regarded by its writer at the period when the Constitution was depending; and it is believed that the same was the prevailing view then taken of it; that the same view has continued to prevail, and that it does so at this time, notwithstanding the eminent exceptions to it.
"But it is perfectly consistent with the concession of this power to the Supreme Court, in cases falling within the course of its functions, to maintain that the power has not always been rightly exercised. To say nothing of the period, happily a short one, when judges in their seats did not abstain from intemperate and party harangues, equally at variance with their duty and their dignity, there have been occasional decisions from the bench which have incurred serious and extensive disapprobation. Still, it would seem that, with but few exceptions, the course of the judiciary has been hitherto sustained by the prominent sense of the nation.
"Those who have denied or doubted the supremacy of the judicial power of the United States, and denounce at the same time a nullifying power in a State, seem not to have sufficiently adverted to the utter inefficiency of a supremacy in a law of the land, without a supremacy in the exposition and execution of the law; nor to the destruction of all equipoise between the Federal government and the State governments, if, whilst the functionaries of the Federal government are directly or indirectly elected by, and responsible to, the States, and the functionaries of the States are in their appointment and responsibility wholly independent of the United States, no constitutional control of any sort belonged to the United States over the States. Under such an organization, it is evident that it would be in the power of the States, individually, to pass unauthorized laws, and to carry them into complete effect, anything in the Constitution and laws of the United States to the contrary notwithstanding. This would be a nullifying power in its plenary character; and whether it had its final effect through the legislative, executive, or judiciary organ of the State, would be equally fatal to the constituted relation between the two governments.
"Should the provisions of the Constitution, as here reviewed, be found not to secure the government and rights of the States against usurpations and abuses on the part of the United States, the final resort within the purview of the Constitution lies in an amendment of the Constitution, according to a process applicable by the States.
"And in the event of a failure of every constitutional resort, and an accumulation of usurpations and abuses, rendering passive obedience and non-resistance a greater evil than resistance and revolution, there can remain but one resort, the last of all; an appeal from the cancelled obligations of the constitutional compact to original rights and the law of self-preservation. This is the ultima ratio under all governments, whether consolidated, confederated, or a compound of both; and it cannot be doubted that a single member of the Union, in the extremity supposed, but in that only, would have a right, as an extra and ultra constitutional right, to make the appeal.
"This brings us to the expedient lately advanced, which claims for a single State a right to appeal against an exercise of power by the government of the United States, decided by the State to be unconstitutional to the parties to the constitutional compact ; the decision of the State to have the effect of nullifying the act of the government of the United States, unless the decision of the State be reversed by three fourths of the parties.
"The distinguished names and high authorities which appear to have asserted and given a practical scope to this doctrine, entitle it to a respect which it might be difficult otherwise to feel for it.
"If the doctrine were to be understood as requiring the three fourths of the States to sustain, instead of that proportion to reverse, the decision of the appealing State, the decision to be without effect during the appeal, it would be sufficient to remark that this extra-constitutional course might well give way to that marked out by the Constitution, which authorizes two thirds of the States to institute, and three fourths to effectuate, an amendment of the Constitution, establishing a permanent rule of the highest authority, in place of an irregular precedent of construction only.
"But it is understood that the nullifying doctrine imports that the decision of the State is to be presumed valid, and that it overrules the law of the United States, unless overruled by three fourths of the States.
"Can more be necessary to demonstrate the inadmissibility of such a doctrine than that it puts it in the power of the smallest fraction over one fourth of the United States, that is, of seven States out of twenty-four, to give the law, and even the Constitution, to seventeen States, each of the seventeen having, as parties to the Constitution, an equal right with each of the seven to expound it, and to insist on the exposition? That the seven might in particular instances be right, and the seventeen wrong, is more than