« AnteriorContinuar »
the wbole sovereignty, national and municipal ; each the portion and within the limits allotted and prescribed by the constitution. It is evident, the writer does not here use the term co-ordinate in the common acceptation, when applied to departments of governments, in which case the appropriate meaning is, that the several departments are vested with coordinate powers, which must co-operate to produce an intended effect, that is, that a concurrence of all the departments is necessary to the validity of any act.
No concurrence is here necessary to give validity to the acts of either, when exercising their powers within the limits prescribed by the constitution; he does not, therefore, use it in that sense. The original meaning of the epithet is, an equality of rank or degree, without reference to power. It is evident, however, that he includes an equality of power in each of his departments, so that when they come into collision, on any subject, the power of each is neutralized,-for he proceeds-“But, you will say, if the two departments should claim the same subject of power, where is the common umpire to decide between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground, but if it can neither be avoided nor compromised ; a convention of the states must be called, to ascribe the doubtful power, to which they may think best.”
This clearly goes on the assumption, that the powers of the general government and of the state governments as distributed and established by the constitution, are equal, that there is no common judge provided with power and right to decide between them, and that in cases of collision, the only resort is to the people, the original source of all political power. This is altogether incorrect. If there is to be found any intelligible meaning in words and expressions, if there is any force of inference, any reliance on the most obvious construction, it is demonstrably clear, that not only are the powers of the general government, to the extent granted superior, whenever there arises a collision of claims, but that for the decision of such claims, a common judge is established by the constitution in the judicial power delegated to the general government, the jurisdiction of which is expressly extended to all cases in law and equity that shall arise under the constitution and laws of the United States, declared to be the supreme law, and to all parties that may become interrested in the decision of any question so arising, whether states including the United States or individuals. Now it is presumed that no one will venture to deny that the question whether the power over the subject supposed, is exclusively granted to the general government, or reserved to the states, or whether the power is so disposed that both may exercise it on the same subject, as in most instances of taxation, are questions or cases arising under the constitution, and to be decided by a sound construction of that instrument, the supreme law, as applicable to the subject.
As to a compromise, the general government can have no right to surrender or transfer any power which has been vested in it on any subject. Nor can the state governments surrender any power or right reserved to them, but by the consent of the people from whom the power or right was derived, and in the mode prescribed. Although there is but one mode provided in the constitution for settling the existing rights of the parties, by the national judiciary, there is another mode provided for settling its exercise for the future, by an amendment of the constitution, which may assign the right to one party or the other, or wholly prohibit its exercise, as shall be deemed most conducive to the general good. An authority for this purpose is found in the fifth article of the constitution, which provides, among other things, that on the application of the legislatures of two thirds of the several states, congress shall call a general convention of the states, not with a power to decide on the existing rights or claims of the parties, or a power of final action, but to propose amendments to the constitution, and which can have no validity until afterwards ratified by the legislatures of three fourths of the several states, or by conventions in three fourths of the states, as congress shall direct one or the other mode of ratification.
Mr. Jefferson had, undoubtedly, reference to the calling of such convention ; for we are not to suppose that he contemplated in this instance an innovation of the constitution. On a fair and candid view, it will be clearly perceived that such convention could not be empowered to decide the existing rights or powers of the parties, the general and state goverëments, or the relations existing between them; although the amendments which they should propose, might, if duly ratified vary those powers, rights, and relations for the future. We need not, therefore, hesitate to say that the answer which he has given to the objection he had raised for the purpose of illustration, does not serve in the least to illustrate or strengthen his proposition.
Another opinion of Mr. Jefferson, connected with the same subject, is, that “to give the general government the final and conclusive right to judge of its own powers, is to make its discretion, and not the constitution the measure of its powers," and further, “ that in all cases of compact between partics having no common judge, each party has an equal right to judge for itself, as well of the operation, as of the mode and measure of redress.” The first proposition must be understood to mean, that to give such right of judging finally to any department of the government, is to make its discretion and not the constitution the measure of its powers, and thence to conelude that such right was not granted. This might have been proper to be urged against inserting in the constitution, a provision granting the right. It was in fact powerfully urged, both in the general convention, and in the several state corventions; but it was over-ruled, and the provision inserted and ratified with the constitution. Nor was there any attempt to restrict it by any amendments proposed by any of the state conventions, nor has it been suggested by any subsequent amendment.
In the second proposition, it is again assumed that by the constitution no common judge is instituted between the parties. Now the only real parties to the compact were the several states, or in truth, the people of the several states in the manner and character already described. But the general government now established becomes a party on the one hand, and the several states constitute the party on the other; and these appear to be the parties here intended. Before making any further observations, I will here, to save a repetition of the same arguments, add the resolutions of the general assembly of the state of Virginia, passed in the years 1798 and 1799, more fully expressing the same opinion; and I do this the more readily, because it appears from Mr. Jefferson's Memoirs, if he did not dictate those resolutions, they were brought forward by his advice and had the authority of his approbation, as it was well understood at the time.
The first resolution concludes in the following words “That this assembly doth explicitly and peremptorily declare, that it views the powers of the federal government as resulting from a compact to which the states are parties as limited by the plain sense of the instrument stipulating that compact, as no farther valid than they are authorized by the grants enumerated in that compact, and that in case of a deliberate, palpable, and dangerous exercise of powers not granted by the said compact, the states who are parties to that compact have a right, and are in duty bound to interpose for arresting the progress of the evil and for maintaining within their respective limits, the authorities, rights, and liberties pertaining to them.” This resolution was understood at the time as implicitly asserting that the right of finally deciding on the powers granted to the general government, or the constitutionality of its acts, is not vested in the judiciary of the union ; but that the states, as parties to the compact establishing that government, have the final right to judge of its acts, each for itself, whether they are the exercise of powers not granted, and if judged to be such, to interpose and prevent their execution within the limits of their respective jurisdictions.
It has indeed been otherwise explained by very respectable authority ; * but the subsequent resolution of 1799 puts it beyond all manner of doubt. That resolution was past on the report of a committee appointed for the purpose of explaining the foriner resolution. The committee, speaking of the right of a state to interpose for the preservation of her reserved rights, say,—" It is objected that the judicial authority is to be regarded as the sole expositor of the constitution. To this objection it might be observed,---first, that there may be instances of assumed powers, which, from the forms of the
See Mr. Madison's letter, No. 5, in the appendix.
constitution, cannot be drawn before the judiciary department. Secondly, that is the judiciary be raised above the sovereign parties to the constitution, the decisions of the other departments not carried by the forms of the constitution, before the judiciary, must be equally conclusive and final with the decisions of that department. But the proper answer to the objection is, that the resolution of the general assembly relates to those great and extraordinary cases, in which all the forms of the constitution may prove inefficient against infractions dangerous to the rights of the parties to it. The resolution supposes, that dangerous powers not delegated, may not only be usurped and executed, but the judiciary department may also exercise and sanction dangerous powers beyond the grant of the constitution, and consequently, that the ultimate right of the parties to judge whether the compact has been dangerously violated, extends to violations by one delegated authority, as well as by another—as well by the judiciary as by executive and legislative."
All this is but a further development and explanation of the principles asserted in the former resolution, and in accordance with the principles advanced by Mr. Jefferson. It is intended as an answer to the objection against the state right claimed by the first resolution, that the judicial authority of the United States is to be considered as the sole expositor of the constitution. As the answer here attempted, is, at first sight, plausible, and as it is a subject of great importance in our political system, I shall examine it at some length, perhaps at the hazard of being thought prolix. “On this objection,” say they,“ it might be observed,—first, that there may be instances of usurped powers, which, by the forms of the constitution, cannot be drawn within the control of the judicial department.”. There is in every part of this report, a confusion of ideas, the want, not of a subtle and metaphysical, but of an obvious and practical distinction—a distinction between the unconstitutionality and the inexpedience or impolicy of a law or measure of the government.
In the first case, the unconstitutionality of a law or measure, or as it is called in the report, the usurpation of a power not granted, the constitution itself,—the supreme law-gives the rule of de