THE NATIONALITY OF THE CONSTITUTION.
The claim of South Carolina, at the time of her threatened nullification
and secession, and of the South at the period of our civil war, is, that
the Constitution which the States adopted formed them into a confederacy
and not a nation. It is admitted, and is not denied, that if the
government established was national there can be no valid claim of a
component part to treat its laws as of no validity, a nullity, or to
dissolve it at its will.
Indeed, Calhoun, the great expounder of the nullification and secession
doctrine, considered this to be a vital matter, and always insisted that
the United States was not a nation. He complained that the reporters
made him say,
“this Nation instead of this Union.” “I never use the word
nation in speaking of the United States: I always use the word
union or confederacy. We are not a nation, but a union, a
confederacy of equal and sovereign States. England is a nation,
Austria is a nation, Russia is a nation, but the United States
are not a nation.”[9]
[9] _Great Senators_, by Oliver Dyer, p. 153.
The South during the civil war claimed that the States made the
government of the United States, and that the States were and remained
independent sovereign nations. And each State being an independent
sovereign nation, had the right to decide whether the power it had given
to the United States Government was properly exercised by its
Legislature or its officers, and to declare and treat as a nullity and
as void any law passed, any act done in excess of that authority, and to
withdraw from the Confederacy--that is, to secede, at its will.
It will at once be seen, as the time during which the Union is to endure
is not limited in the Constitution, that, if this right of secession
exists, a State could leave the day after it adopted the Constitution.
The Union is either perpetual or dissoluble at pleasure. In the
secession ordinances passed by the Southern States at the commencement
of the civil war the ground was taken that the States of their sovereign
right and will resumed their place as independent nations. That is, the
duration of the Union was from the very beginning at the caprice of each
and every State. No less, if the doctrine of nullification be correct,
that each State can declare and treat as null and void the acts of the
United States it deems beyond the powers it has granted, it can nullify
and make void the laws of the United States, all the acts of its
officers, all the judiciary proceedings at its caprice.
Nor is it extravagant to say caprice. South Carolina’s nullification and
secession acts and resolves in 1832 were on the ground of the
unconstitutionality of a protective tariff. There had been a great
number of protective tariffs enacted before, which South Carolina had
favored by her votes, and the second law of the United States, enacted
at the commencement of the government, at the first session of the first
Congress, was for the protection and encouragement of manufactures. Its
preamble is: “Whereas, it is necessary for the support of government,
for the discharge of the debts of the United States, and the
encouragement and protection of manufactures, that duties be laid on
goods, wares, and merchandise imported.” Madison,[10] who was the leader
of the House of Representatives in this first Congress, wrote that no
one questioned the right of making protective duties. Billions of
dollars have been levied by the collection of protective duties from the
beginning of the government to the present day. No litigant paying
duties even as excessive as those on pearl buttons and tin plates, nor
lawyer, a class not diffident in advancing untenable claims, has been
found, as far as we know, to question before the Supreme Court the
legality of these duties, because they were protective or paid this
slight reverence to a doctrine in support of which South Carolina
threatened war and secession.
[10] See 4 Elliot’s _Debates_, pp. 345 and 349, showing at the
inception and in the early period of our government protective duties
were apparently universally approved by Congress and the Presidents.
It seems only necessary to state the viciousness of this doctrine of
nullification and secession, that every State could practically put its
veto on every law and act of the General Government it questioned, and
dissolve it at its pleasure, to prove that no such impracticable
government was established. Certainly, reasoning _a priori_, this
doctrine has no standing.
Our General Government differs from that of Great Britain and nearly all
other governments in that it is created by a written Constitution, and
its authority is limited by that Constitution. The power of Parliament
is imperial; there is no limit to it; it does what it deems best. There
apparently is an almost insurmountable difficulty in the writers of
other countries, only knowing unlimited, imperial supreme governments,
to comprehend that a government of limited powers can be supreme in the
powers granted to it. Knowing that the powers of our General Government
are limited, they are apt to draw the conclusion that the fundamental
unlimited power must be in the subordinate component parts, the States.
Our States, as well as the General Government, have limited powers
granted by written constitutions. The State governments are not only
limited in their powers, but the people, who established them in their
constitutions, have invariably recognized the supreme power of the
General Government; in none of them have they undertaken to confer on
the State Legislatures or government powers in conflict with the
sovereign national powers of the General Government. The powers given to
the State governments are subordinate and local. All the constitutions,
State and General, have had the sanction and an adoption by the people.
The argument of Hayne, Calhoun, and his followers, and of all Southern
writers--that the United States Constitution is a compact or agreement
amongst the several States as independent sovereign nations, and that in
every compact between nations, a contracting power, where there is a
disagreement, as there is no superior authority over them, has the right
to maintain the correctness of its construction--ignores the case where
the compact may be one for the making of the several contracting powers
one nation.
Compact means an agreement, nothing more or less, whether applied to
states or individuals. It cannot be denied that independent sovereign
nations can _by compact or agreement_ make themselves into a perpetual,
indissoluble nation. The voluntary combination of independent sovereign
powers, or nations, or states into one national union _must be by
compact_.
The question therefore resolves itself into this, What was the agreement
or compact made between the people of the States? Was it for a nation
with supreme powers over the subdivisions of States in its territory and
all living therein, as far as power was given to it, and for
perpetuity, or was it for a confederacy or league for certain purposes,
limited by the right of each of the parties to it, to judge whether the
government exceeded its authority, and at its pleasure to dissolve it?
In other words, the fundamental question is, Was an indissoluble
national power made or a confederacy or league declared by the adopting
of the Constitution?
Webster perhaps unfortunately used the word compact in his argument when
he said the Constitution was not a compact, meaning it was not a mere
agreement amongst the States, a league, or confederacy, but that it was
the fundamental declaration of a nation.
Madison agreed with Webster as to secession and nullification and the
powers of the General Government, and of its judiciary to define and
pass on them, but he held “that the government with its powers was
established by a compact which each of the States had entered into, the
authority for it being derived from the same source as that of the State
governments--the people.”[11] Webster himself, in his speech in answer
to Calhoun, recognizes that compact may mean an agreement for a nation.
Speaking of the Constitution, he says: “Founded in or on the consent of
the people, it may be said to rest on compact or consent, but it is
itself not the compact, but the result.”[12] It is necessary to
constantly bear in mind that the word compact, used in reference to the
Constitution, is consistent with its nationality.
[11] See also, to same effect, _North American Review_, Oct., 1830, p.
537. Madison’s letter to Edward Everett.
[12] Webster’s _Speeches_, vol. ii., ed. 1850, p. 177.
The prominent writers who maintain the right of nullification and
secession, Calhoun, Davis, Stephens, and Bledsoe in his work, _Is Davis
a Traitor?_ all assert to an excessive length that any person or any
State that uses the word compact in reference to the Constitution admits
their theory of government, which is, that the Union between the States
was a mere dissoluble agreement, in which the States retained their
sovereignty and right of judgment over the acts done by the United
States. They mention the State of Massachusetts, Washington’s,
Madison’s, and even Webster’s subsequent use of that word as evidence of
their assent to this doctrine. The fault in their reasoning is what
logicians call the undistributed middle; they assume that the persons or
States using the word compact are speaking of the sort of compact they
maintain the Union to be--a league or mere dissoluble agreement, when in
fact they may be, and are, speaking of another sort of compact, a
compact for a national government.
We propose to show that by the adoption of the Constitution the people
of the States formed themselves into a nation.
First: The Constitution declares its perpetuity, and the powers given by
it to the government established are those of an indissoluble nation
with supreme authority over every one, not of a confederacy of nations.
Second: The members of the convention that made the Constitution
intended to make a national government; and that they considered that
they had done so is conclusively shown by the contemporary reports of
their debates and proceedings. The members of the conventions of the
people of the several States that adopted the Constitution without
exception also considered and spoke of the government as national.
Third: That the government exercised its supreme national power
repeatedly and uniformly over the States and over all the citizens of
every State, from the time of its inception to the civil war.
Historically we were a nation.
Fourth: That the general belief that the Virginia resolutions questioned
this supremacy and nationality is wholly unfounded.
There is no question of the universal opinion after the termination of
the war of the Revolution that the provisions under which the States
were associated, made on the 15th of November, 1777, had failed
essentially in giving to the Confederate Congress government the
necessary powers to carry it on.[13] The Confederacy was made by
delegates from the Legislatures of the State governments of the
different States; the powers of the Confederacy were given to a Congress
which consisted of one body or House, and in that Congress each State
had one vote, that of Delaware, with a diminutive territory and about
one sixteenth of the population, equalling that of Virginia. The
Constitution which contains and defines the powers given to the United
States Government was made by delegates appointed by the different State
Legislatures of the Confederacy, all being represented except Rhode
Island. Its members were the most prominent and distinguished men of the
country. After the most careful, thorough, and patient examination and
discussion, extending through four months, they formed the instrument
giving the powers of the new government. They sent it to the existing
Congress of the Confederacy, with the request that it might be submitted
to a convention of delegates chosen in each State by the people thereof,
under the recommendation of its Legislature, for their consideration and
assent if approved of.
[13] The condition of affairs then is well stated in Fiske’s _Critical
Period of American History_.
The Continental Congress unanimously forwarded the proposed Constitution
to the Legislatures of the several States, who each submitted it to a
convention of the people called for the purpose of deciding whether they
would adopt it.
By necessity the submission was to the people of the States separately.
The acceptation or rejection rested on them, the people; they
appointing delegates to carefully consider the matter and to decide for
them. Thus the adoption of the Constitution was not only sanctioned by
the Congress of the Confederacy, by the separate State governments, but
finally by the people themselves of every State acting by virtue of
their fundamental, sovereign power, they appointing the delegates who
met in convention, and who in each State decided for the people, whether
they would or would not enter into this new form of government. A
sanction more binding on every one could not have been made.
Mr. Webster’s argument that our government is that of a nation and not a
confederacy, was in a great measure founded on the Constitution itself.
There are other declarations and powers in the Constitution, besides
those he so forcibly presented, which should not be overlooked. The
Constitution is a very brief, and, as time has shown, a very perfect
instrument. It gives to a general government it establishes, all the
powers necessary for the existence and maintenance of a nation.
Its first declaration is, _We, the People_ of the United States, do
ordain and establish this Constitution. This is in emphatic contrast to
the preamble and articles of the Confederacy. The preamble of the
Confederacy is, Articles of confederation and perpetual union between
the “States of New Hampshire, Massachusetts Bay,” etc. Article I. is,
“The style of this Confederacy shall be ‘The United States of America.’”
Article III., “The said States hereby severally enter into a firm
league of friendship with each other for their common defence, the
security of their liberties, and their mutual and general welfare.”
Not only did the people actually make this great charter, in which they
gave to the government they established over them the powers it has, but
they declared in the very beginning that it was “we, the people,” and
not their State governments, that made it, and they also declared its
perpetuity. It is “We, the People of the United States, in order to form
a more perfect union, establish justice, insure domestic tranquillity,
provide for the common defence, promote the general welfare, and to
secure the blessings of liberty to ourselves and _our posterity_, do
ordain and establish this Constitution for the United States of
America.” Here is the express declaration that it is for perpetuity, not
for the people making it, but for those succeeding them, for their
posterity, for all time.
When, after the civil war, the question of the legality of secession
came before the Supreme Court of the United States, in the case of the
State of Texas against White,[14] Chief-Justice Chase, apparently
overlooking this explicit statement, in delivering the opinion of the
court, said: “That by the articles of the Confederacy, the union of the
States was solemnly declared to be perpetual, and when these articles
were found to be inadequate to the exigency of the country, the
Constitution was ordained to form a more perfect union,” and asks, “what
can be more indissoluble if a perpetual union made more perfect is not?”
[14] 7 Wallace _Reports_, p. 700.
Neither the Chief Justice nor those distinguished jurists, Justice
Swayne[15] and Justice Bradley,[16] controverted the right of secession
when the case came before them, in the manner that Chief-Justice
Marshall treated constitutional questions. They, however, declared in
the most emphatic terms that there could be no secession, that the Union
was an indissoluble one of indestructible States by the very provisions
of the Constitution itself.
[15] In case of White _vs._ Hart, 13 Wallace, 646.
[16] Keith _vs._ Clark, 97 _United States Reports_, 476.
If we examine the provisions of the Constitution, we find in the first
clause is declared the perpetuity of the Union; in the last clause,
excepting that setting forth it shall be established on the ratification
by nine States, is stated in language that cannot be mistaken, its
supremacy over States and State constitutions.
It is by its very terms, we, the people, do ordain and establish this
Constitution, that is the great charter giving powers to our new
government, and it is, therefore, we, the people of every State, who
declare that this Constitution, this government, and the laws and
treaties made under it “shall be the supreme law of the land and the
judges in every State shall be bound thereby, anything in the
constitution or laws of any State to the contrary notwithstanding.”
There is no qualification that if we do not deem them legal we can treat
them as null and void.
In order to secure and maintain that supremacy the people who made it
require that the United States Senators and Representatives, “and
_members of the several State Legislatures_, and all executive and
judicial officers, both of the United States _and of the several
States_, shall be bound by oath or affirmation to support this
Constitution”; stamping, as on its coins, its authority over States and
every State officer.
Now when the people of each and every State did “ordain and establish” a
new form of government which was to be supreme over the constitution,
that is the government of their particular State, and imposed upon every
legislative, executive, and judicial officer of their own State an oath
to support that government, where is the right of a State to question?
Over what is the United States supreme if not over States? Why should an
oath have been required to support that supremacy over State governments
unless to make that supremacy certain, and resistance to or question of
it criminal?
Those who made and established the government knew of the oath that is
required by State governments of their officers to support their
constitutions, and they would not have required this additional oath if
the two oaths could have conflicted, or if there could have been any
doubt that the obligations required by a State government were to be
subordinated to the supreme powers and laws of the general government.
Then to prevent the government from being encroached upon by the States
the judicial power was given to the United States over all cases arising
under this Constitution, the laws of the United States, its treaties,
and cases affecting ambassadors, etc. So, as Webster declared, no State
law or judicial decision of a State could interfere. By this clause the
United States courts had the right, which they have uniformly and very
often exercised, from the beginning of our government until this day, of
taking from the jurisdiction of the State courts all and every case in
which the construction of a United States law came in question or where
the legality of the act of any United States official was concerned.
We have seen that the supremacy of the United States over all States and
State laws and the right to maintain that supremacy through its own
courts and by its own officers was fully established by the
Constitution. If we examine further the powers granted to the general
government by this Constitution, we find all that can be called
sovereign: those of intercourse with foreign nations, of war and peace,
of raising and keeping an army and navy, of the currency, of commerce
external and internal, of establishing post-offices and post-roads, and
fixing the standard of weights and measures, the exclusive right of
making citizens by naturalization, the regulating and command of the
militia when in its service, and issuing of copyrights and patents, the
making of all laws necessary and proper for carrying into execution the
granted powers and all other powers vested by the Constitution in the
government of the United States or in any department or office thereof,
with prohibitions to the States from entering into any treaty, alliance,
or confederation with another State or foreign power, making agreements
or _compacts_ with other States, keeping an army or war vessels in the
time of peace, or making laws impairing the obligation of a contract,
and _ex post facto_ law, coining money, emitting bills of credit--that
is making a paper currency (the issuing of paper had been carried to an
excess by the States and the Continental Congress during the
Revolution), and laying imposts or duties on imports or exports.[17]
There is no sovereignty remaining to a State that has granted all these
powers to the government over it, and is so restricted in its acts, and
cannot even make an agreement or a compact with a sister State. Indeed,
Calhoun, in his argument, seemed hard pushed to specify any sovereign
powers left to the States, when he mentioned that the States had the
power to appoint the officers of the militia and that Pennsylvania had
undertaken to punish treason.
[17] See Constitution of United States, Article I., Sections 8, 9, and
10, for statement of granted powers and restrictions on States.
Though the United States alone have those supreme powers, which by
political writers are generally called sovereign, the word sovereign has
been also used by American writers and politicians in reference to the
powers of a State. The people of every State have supreme powers over
their own local affairs, their own territory and citizens where the
power has not been given to the United States; they can enact laws
making the penalty of stealing a pocket-handkerchief or smoking on the
street punishable with death and carry them into effect. If they were,
however, to make such laws to take effect for past acts, the United
States would interfere, because no State can make an _ex post facto_
law. So, in our separate States, a town or a county can run a road
through anybody’s land and the State cannot interfere; because the
people of the State have given that authority to the town or county. A
Board of Health in many States can stop one’s factory, destroy his
business, or close his house, by reason of its being deleterious to the
general health, and there is no appeal. In these matters the town or
county or Board of Health have supreme powers in their jurisdiction;
but however supreme or however arbitrary they may be in their
jurisdiction, they cannot extend them beyond--these supreme local powers
are not sovereign powers.
It is a large, local, internal government that each State has over its
territory, and the property and the acts of its citizens in that
territory. The General Government in our extensive domain, having in
addition to the powers it now has those of the States, would from the
overwhelming mass of its duties be a failure.
Indeed, we find that from necessity Great Britain is on the path of
giving to her three kingdoms greater powers of local government. If one
examines the bill for home rule for Ireland, proposed in 1886 by the
Gladstone administration, he will find that the powers it proposed to
give to Ireland are far beyond those our separate States have. Ireland,
besides the right of taxing, was empowered to levy duties of customs and
excise--that is, the right of protecting her own manufactures to the
injury of England’s. Ireland was to pay over specified contributions to
the British Government, some millions of pounds annually, for her
proportion of the interest on the national debt, and of the cost of the
support of the army and navy, and other expenses. If there were a
failure in these contributions the General Government would have been
obliged to use coercion--a civil war--a policy considered fatally
objectionable in the convention that made our Constitution. Ireland
also was to lose her representation in the Imperial Parliament.
As far as secession is concerned, the most important provision in the
Constitution is Section 3, of Article III., concerning treason. There is
no such thing as treason except where allegiance is due. The citizen of
an independent sovereign State owes his allegiance to it, and not to a
confederacy or a league the State has joined. There can be no treason
except against a government proper. The establishing by the Constitution
of the punishment of treason, implies the nationality of the Union, and
that every inhabitant of its domain is a citizen. In the articles of the
old Confederacy there was no punishment of treason; on the contrary,
each State agreed in those articles to deliver up to its sister States
any one that it might claim had committed treason.
The first part of the two clauses of Section 3 are “Treason against the
United States shall consist only in levying war against them, or in
adhering to their enemies, giving them aid and comfort,” and “The
Congress shall have the power to declare the punishment of treason.”
The peculiarity of the introduction of this first clause is to be
noticed: it is taken for granted that there is treason against the
United States, and that it is expedient to limit it. The founders of our
new government did not intend to have rash speech, or plots, or mere
resistance to its authority punishable as the high crime of treason.
They knew from the experience of their mother country the danger to
personal liberty from constructive treason; so they limited the power to
punish that offence, and gave it only in case of levying of war, or
aiding and adhering to enemies.
It has been claimed by many writers North as well as South, that
admitting secession to be illegal, the United States had no authority to
use force against a seceding State. At the foundation of all government
must be the right to maintain itself, and by force when necessary. There
is no need of the declaration of this right. The establishment of a
government implies the power to compel the obedience of its subjects.
This power in the government to punish as treason the levying of war
against it applies directly and expressly to a State, or a combination
of States, or a part of a State levying war. A foreign state, an enemy
levying war, cannot commit treason. Its subjects owe no allegiance. Nor
does a riot or a mob levy war. This making the levying of war treason
was intended for powers within the National Government, like States and
combination of States and parts of States. It was against some power
that should have the organization and ability to levy or wage war; and
the word levying is far reaching and extends beyond mere fighting. It
could not have been intended for anything else than coercing such
powers.
That this law was understood to reach a citizen of a State resisting the
authority of the United States is clearly shown by the letter of Luther
Martin, a distinguished jurist, and also the Attorney-General of
Maryland, and afterwards a leader of the bar in the United States
Courts, and who as a lawyer was accustomed to consider the meaning of
instruments like the Constitution. In this letter to the Legislature of
Maryland objecting to the ratification of the Constitution, he declares
that this clause was kept for the purpose of coercing a State. He wrote:
“The time may come when it shall be the duty of a State in order to
preserve itself from the oppression of the General Government to have
recourse to the sword; in which case, the proposed form of government
declares, that the State, and every one of its citizens who acts under
its authority, are guilty of a direct act of treason,” and a citizen is
thus put in the dilemma of being exposed to punishment, either by the
State or the United States, however he may act. To prevent this, he
writes, he offered an amendment that acts done under the authority of
one or more States should not be deemed treason or punished as such; but
this provision was not adopted.[18]
[18] Martin’s Letter, Elliot’s _Debates_, vol. I., pp. 382, 383.
The interference of the United States with a State is expressly directed
by another clause in the Constitution, that by which the United States
is obliged to protect a State against domestic violence and guarantees
to put down any government if it be not republican. There is no limit to
this guaranty and it is no matter if the unrepublican government be
established by a majority or unanimity of votes.
A sovereign government seldom, if ever, allows itself to be sued, and
never gives the decision of a suit against itself or between itself and
other governments to _another jurisdiction_. That is a direct surrender
of sovereignty. The Constitution as originally adopted, gave to the
United States judicial power in controversies to which the United States
shall be a party, in controversies between two or more States, between a
State and citizens of another State and between a State and foreign
states, citizens, or subjects. The jurisdiction in suits by individuals
against a State was afterwards taken away by the passage of an amendment
to the Constitution, leaving however jurisdiction in controversies to
which the United States shall be a party and between two or more States
and a foreign State. The fact, however, remains, that the Constitution
as formed and as adopted by the original States, (all that can claim to
have been sovereign), did give jurisdiction to the United States over
all claims, even those of individuals out of the State against the
State, as if the State had no more political importance than a county or
a town.
A yet more important clause in the Constitution shows conclusively the
supremacy and national character of the government; namely that giving
it the power of changing and extending its authority to whatever extent
it chooses by amendments, provided they are accepted by the Legislatures
of three quarters of the States. By amendments made in this manner the
United States can take whatever authority it pleases from the States. It
can give its government a veto over the laws of the separate States,
appoint the executive officers of a State--powers proposed in the
convention that made the Constitution. The only limit in the
Constitution to the extension of the government’s power by amendments is
that no State without its consent could be deprived of its equal
suffrage in the Senate, and the importation of slaves until 1808 should
not be prohibited. Under this provision the General Government, with the
concurrence of three fourths of the Legislatures of the States, has an
authority that no State government has. None of the State constitutions
grant its Legislature the right to extend its powers over counties,
cities, and towns; it must go to the people for that.
How can it be said that sovereignty remains in a State, when it gives to
its associates the right to make all its laws if only three quarters of
them so elect? The granting by a community of power to a government over
it to control it, as it pleases, takes away the very foundation of
sovereign right; and objection was made to this clause for this very
reason. In the convention Elbridge Gerry, a prominent delegate from
Massachusetts, afterwards Governor of that State and Vice-President of
the United States, objected because the Constitution is paramount to the
State constitutions, and that two thirds of the States may introduce
innovations that would subvert the State constitution altogether.[19] It
is by the power given in this clause, that after the war of secession
slavery was abolished through the acceptance by the States of amendments
to that effect. The proclamation of Lincoln abolishing slavery in the
States in insurrection on January 1, 1863, did not give liberty to the
slaves in Delaware, Maryland, Missouri and Kentucky, and parts of other
States, that were not in rebellion. Many, perhaps all, of these States
abolished slavery before the amendments were passed.
[19] 5 Elliot, p. 530. The clause was altered so that the ratification
of three fourths of the Legislatures of the States was required,
though two thirds of the States can call a new convention, and two
thirds of Congress propose amendments to the Constitution.
The only authority given by the Constitution to States is this power of
amending it by the concurrence of State Legislatures in propositions
made by the Congress of the United States or the Legislatures of three
fourths of the States, and also the right of equal representation in the
Senate, and that in the election of President the vote is by electors
appointed in such manner as the State Legislature may direct.
The provision forbidding a State from emitting bills of credit, passing
any bill of attainder, _ex post facto_ law, or law impairing the
obligation of contracts, are a restriction that sovereign nations would
never have submitted to.
When a foreigner becomes a citizen, he abjures his allegiance to
his native country, and the oath he takes is before a United States
officer to the United States, not to the State in which he is
naturalized. Finally, by the Constitution the President is made the
commander-in-chief of the army and navy of the United States, and of the
militia of the several States. While an oath or affirmation is required
of every Senator or Representative, of every executive and judicial
officer of the United States and of every State, to support the
Constitution, the President alone--the one having the supreme military
power over all forces on land or sea--must swear or affirm that he will
faithfully execute the office, and “to the best of my ability, preserve,
protect, and defend the Constitution of the United States”; not to keep
from encroachment upon the rights of the States, but to preserve,
protect, and defend the Constitution. Can it be said that it is not to
be preserved over its citizens and States that are in arms to subvert or
resist its laws and supremacy?
Jefferson, in the time of the Confederacy, when the States were
neglecting to pay the requisitions made of them, recommended that the
Continental Congress should show its teeth and send a frigate into the
ports of a delinquent State; but the new Constitution intended to draw
the teeth of the States by prohibiting them from keeping troops or ships
of war; and it reserved to the national government the right “to raise
and support armies”; “to provide and maintain a navy”; and gave it the
power of “calling forth the militia to execute the laws of the Union,
suppress insurrection, and repel invasion.” Thus the Constitution added
to the supremacy of the new government the power to enforce it, and took
from the States the power, as far as it could consistently with freedom,
of resistance.
The government of the Confederacy depended upon the several State
governments, their soldiers, and their contributions; it had no direct
control over the people; from the failure of the State government to
make the required contributions and enforce its decrees it was fast
falling into total inefficacy. We have shown that the new government,
established by the people of each State over themselves and the people
of the other States, had by its Constitution all the powers necessary
for a national government, and State governments were prohibited from
the exercise of conflicting powers; that waging war against that
government was treason, thus affirming that they, the people of each
State who established it, owed allegiance and were subjects of the
government; they, the people, also declared in the Constitution, that
the judiciary of their general government should have authority over
every case and question arising under its laws and acts; further, they
gave that judiciary and the government the power to enforce their laws
and the authority over every individual in its domain; and finally they
expressly declared the supremacy of the government and its laws over all
State laws and State constitutions.
The departments of the government established by the Constitution are
three in number: the Legislative (Congress), to make the laws and to
pass the acts for the carrying it on; the Executive (the President and
the officers under him), to administer it, to carry into effect its laws
and acts, and represent it in its dealings with other countries; and
thirdly the Judiciary, to decide upon all controversies arising under
the laws and acts of the government.
A department, however, in some instances has an authority in the others;
the President, the chief executive officer, has the right of veto, and
his principal appointments, especially those of the judiciary and
foreign ministers, are subject to the approval of the Senate.
The power of the United States Judiciary Department to pass upon the
constitutionality or validity of laws made by the Legislature, is one
unknown to the unlimited imperial power of the Parliament of Great
Britain, and has been a source of perplexity to the writers and
legislators of that country, and of question recently in the House of
Commons. The question cannot arise and never comes before the judiciary
of that government, whether a law is within the parliamentary power.
With us, however, the question often arises, and the judiciary decides
whenever question is made as to whether a law is within the powers
granted by the Constitution. In all our States the State judiciary has
the same power to decide on the constitutionality of the laws and acts
of the State government.
This system of giving the judiciary the right to define the extent of
the powers of the government has with us met with almost universal
approval.