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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 purposses, 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 government 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 governments.
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 goveruments 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 seperately 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 dught 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. An 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 the 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 rencontres 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 unaccomodating spirit in some would render that resource unavailing? A contrary suppositon 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, any thing 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 governmant. 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 a majority of the states and of the people. At the present day it seems well understood, that the laws which have created most dissatisfaction, bave 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 bonndary of jurisdiction between the federal and the state governments, I may be permitted to refer to the thirtyninth 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,
* No. 39. It is true that in controversies relating to the boundary between the two jurisdictions, 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 32cure 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.