« AnteriorContinuar »
cision; nor can there be found a single instance of a case, which cannot by the forms of the constitution, be drawn within the control of the judicial department; not a case, where the party injured may not bring to a legal decision the question, whether the act complained of be the usurpation of a power not granted, or the exercise of a power granted by the constitution. But as to the expedience, or inexpedience, the policy, or impolicy, of an act or measure, in the exercise of a legitimate power, the constitution furnishes no rule, nor can it, in the nature of things, be so formed as to furnish any rule of decision to a court of law. The constitution has, therefore, necessarily, and I will add, wisely left questions of mere policy and expedience, to the discretion of the legislative or executive department, to which the power is committed in trust. But the constitution has not left this power uncontrolled. It is by the provisions of that instrument, placed under the control of public sentiment, which is exercised by the people, and the state legislatures, in the elections of the President, Vice-President, and the members of the national legislature, both of the senate and house of representatives. The frequency of elections, renders this control constant and powerful, and of which those who are the subjects of it, can never be unmindful.
If the distinction taken above, and the consequences drawn from it be correct, of which it appears impossible to entertain a doubt, it proves the assertion that there may be instances of usurped powers, which cannot be drawn within the control of the judicial department to be without all foundation. It also shows that there is no force in Mr. Jefferson's objection that “ to give the general government the right to judge of its own powers, is to make its discretion, and not the constitution, the measure of its powers.' Had he duly considered and fully comprehended the nature and principles of that government, he must have seen and acknowledged, that without such power vested in the judicial department, it could not, more than any other, even subsist as a government, and that under our free institutions, such investment is no less safe than de cessary.
The committee proceed to observe, “secondly, if the decisions of 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 authoritative and final with the decisions of that department.” The distinction, which was taken above is equally applicable, and equally available here. The decisions of the judiciary are final on the parties in all cases submitted to its jurisdiction, and this includes all cases in which the constitutionality of any act or measure of the other departments may be brought in question. But, as before observed, all questions arising on the policy of their measures, are referred to the tribunal of public sentiment. therefore, be perceived no more force of reason in this observation than in the former.- They are equally unfounded.
The report then proceeds,—" But the proper answer to the objection is, that the resolution of the general assembly refers to those great and extraordinary cases in which all the forms of the constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it.
The resolution supposes dangerous powers not delegated, may not only be usurped by the other departments, but that the judicial departments may exercise and sanction dangerous powers beyond the grant of the constitution, and consequently the ultimate right of the parties to judge, whether the constitutior has been dangerously violated, must extend to one delegated authority as well as by another; as well by the judiciary, as by the executive and legislative.”—This is putting an extreme case, which, like extreme cases in general, prove nothing in establishing general rules, but must be left to make a rule for itself. Still more, it is a
case that never can happen under our institutions ; a case that necessarily implies a general corruption of the whole mass, at least a very powerful majority of the people, who have diffused that corruption through every department of the government, who have created, and who support and cherish their oppressors, and have become the willing instruments of their own slavery. But were it possible it should happen, a remedy would not be sought or obtained by any right reserved to the people by the constitution. No constitution of government among men, ever has provided or ever can provide for a lawful resistance to its authority, without insuring a perpetual suspension, or even an annihilation of its necessary energies—a universal anarchy. But it will be asked, can no lawful resistance be in any case, made to the oppressive acts of government ? As it relates to human institutions, there cannot, any further than may be done by a resort to the constituted tribunals, among which is included that of public sentiment, and which, under free institutions, has an all-prevaling influence.
But in cases of violent oppression, where all constitutional remedies have been tried, and have become hopeless, a people in that situation, are discharged and freed from all the obligations of the constitution, however solemnly ratified, and are thrown back upon the law of nature,-the law of self-protection ;—that law which authorizes, and enjoins as a duty, resistance to oppression, under the guidance of reason and prudence. In such case of oppression happening under our government, should any portion of the people be roused to resistance, that resistance would not be the exercise of any right granted or reserved by the constitution, but a resumption of their natural rights in defiance of the constitution.
Conclusive as this reasoning appears to me, I will, nevertheless, add the opinion of the well known Patrick Henry, on the same subject, whose character as a true and sound patriot, and as a civil and political jurist, will not suffer on a comparison with Mr. Jefferson, or any other man of his day. In an address to the people of Charlotte county, speaking of the first resolution above recited, he remarks that the state had quitted the sphere in which the constitution had placed her, and in daring to pronounce upon the federal laws had gone out of her jurisdiction in a manner not warranted by any authority, and in a manner in the highest degree alarming to every considerate man. He adds that he had seen with regret the purse and the sword, consigned to the federal government, but he had been overruled, and it was now time to submit to the constitutional power. “If I am asked,” he says, “what is to be done, when a people feel themselves intolerably oppressed? My answer is ready,-overturn the government!” This, in a few words, goes the whole length of the argument.
Before closing this subject, it will not be improper to consider two objections that have been urged against the powers here attributed to the national government, with an apparent conviction of their weight, by the advocates for the continuing sovereignty, independence, and consequent rights of the states. First. That to give to the general government, through whatever department, the sole right to judge of its own powers, is in effect, to reduce the several states from being independent governments, to the subordinate grade of corporations, existing at the will and pleasure of that government and dependent upon it for the powers they may be permitted to exercise. Second. That to make the general government to any purpose and within any limits superior to the state governments, is to make the creature greater than the creator. As to the first objection, what analogy is to be found between the state governments as they exist under the constitution of the United States and a corporation in the sense intended ?
A corporation is the mere creature of the superior government, from which it derives its existence, and on the laws of which it is dependent for its powers and its continuance. Not so the state governments. Admitting all the powers vindicated for the general government, in no sense do they derive their existence or their powers from that governrent; nor are they dependent on its laws for their continuance, or the exercise of their rightful powers, within the limits of their respective jurisdictions. The general government and the several state governments, derive their existence, their powers, and the limitation of those powers, from the same source of all political power, the sovereign people, and both are dependent on the same sovereign people alone for their continuance.
The government of each state derives its powers from the act of the people within its local limits and the general government from the concurrent act of the people of all the states, as we have seen, and the people still retain solely to themselves in the same sovereign capacity the right to alter, to enlarge, or limit the powers of both, or either, as they shall think will best promote the public good. One thing that gives a permanent security to the state governments, and to state rights, is, that the members of congress are elected, those of the house of representatives, on a certain ration, by the people of each state from their own citizens, and those of the senate by the state legislature, for short periods, so that they are holden constantly accountable to their constituents, deeply interested with themselves in the maintenance of those rights. There is, therefore, no possible force in the objection.
As to the second objection, it is a general truth, that the creature cannot be made greater than the creator; but in what sense does this apply to government ? The people in their associated and sovereign capacity create, or rather institute the government for this very end, that it shall rule over themselves as individuals in society. It has been shown that society is the necessary and the natural state of man, that civil government is necessary to the social state, and is agreeable to tke laws of nature, but the institution is left to man in his social state. How these institutions have been formed in the early stages of society, and have become binding by the force of custom, need not be here repeated. We will advance at once to that state of social and civil improvement in which the people have entered into an express civil compact, a written constitution, forming and organizing a government for themselves, instituting, limiting, and directing its necessary powers, to the end intended; providing for the selection and appointment of the functionaries to administer those powers in the several departments, and the manner in which they shall be held accountable for their conduct in the administration.
In thus forming and establishing their government, the people act in their united sovereign capacity in which they are the source of all power, civil and political. They have, also provided that this their sovereign power, shall in future remain dormant until again called into action on the same subject, the constitution, on the occasions only, and in the manner which they shall have prescribed. The government thus instituted is made supreme over the people, who now no longer act as such in their sovereign capacity, but as individuals in society subordinate to that government by their own solemn agreement and consent. There is, therefore, no absurdity in the case, that the people should, one and all, become subject