of the several states, or between the whole people of the United States, and the people of the several states, or between each citizen of all the states, and all other citizens, are, if not absolutely insuperable, so serious, and so wholly founded upon mere implication, that it is matter of surprise, that they should have been so extensively adopted, and so zealously propagated. These theories, too, seem mainly urged with a view to draw conclusions, which are at war with the known powers, and reasonable objects of the constitution; and which, if successful, would reduce the government to a mere confederation. They are objectionable, then, in every way; first, because they are not justified by the language of the constitution; secondly, because they have a tendency to impair, and indeed to destroy, its express powers and objects; and thirdly, because they involve consequences, which, at the will of a single state, may overthrow the constitution itself. One of the fundamental rules in the exposition of every instrument is, so to construe its terms, if possible, as not to make them the source of their own destruction, or to make them utterly void, and nugatory. And if this be generally true, with how much more force does the rule apply to a constitution of government, framed for the general good, and designed for perpetuity? Surely, if any implications are to be made beyond its terms, they are implications to preserve, and not to destroy it.1 1 The following strong language is extracted from Instructions given to some Representatives of the state of Virginia by their constituents in 1787, with reference to the confederation: "Government without coercion is a proposition at once so absurd and self-contradictory, that the idea creates a confusion of the understanding. It is form without substance; at best a body without a soul. If men would act right, governments of all kinds would be useless. If states or nations, who are but assemblages of men, would do right, there would be no wars or disorders in the universe. §370. The cardinal conclusion, for which this doctrine of a compact has been, with so much ingenuity and ability, forced into the language of the constitution, (for the language no where alludes to it,) is avowedly to establish, that in construing the constitution, there is no common umpire; but that each state, nay each department of the government of each state, is the supreme judge for itself, of the powers, and rights, and duties, arising under that instrument.' Thus, it has been solemnly asserted on more than one occasion, by some of the state legislatures, that there is no common arbiter, or tribunal, authorized to decide in the last resort, upon the powers and the interpretation of the constitution. And the doctrine has been recently revived with extraordinary zeal, and vindicated with uncommon vigour. A majority of the states, however, have never as Bad as individuals are, states are worse. Clothe men with public authority, and almost universally they consider themselves, as liberated from the obligations of moral rectitude, because they are no longer amenable to justice." 1 Amer. Mus. 290. 1 Madison's Virginia Report, January, 1800, p. 6, 7, 8, 9; Webster's Speeches, 407 to 409, 410, 411, 419 to 421. 2 The legislature of Virginia, in 1829, resolved, that there is no common arbiter to construe the constitution of the United States; the constitution being a federative compact between sovereign states, each state has a right to construe the compact for itself." Georgia and South-Carolina have recently maintained the same doctrine; and it has been asserted in the senate of the United States, with an uncommon display of eloquence and pertinacity. It is not a little remarkable, that in 1810, the legislature of Virginia thought very differently, and then deemed the supreme court a fit and impartial tribunal.† Pennsylvania at the same time, though she did not deny the court to be, under the constitution, the appropriate tribunal, was desirous of substituting some other arbiter. The recent resolutions of her own legislature (in March, 1831) show, that she now approves of the supreme court, as the true and common ar * 9 Dane's Abridg. ch. 187, art. 20, § 13, p. 589, &c. 591; Dane's App. 52 to 59, 67 to 72; 3 American Annual Register, Local Hist. 131. † North American Review, October, 1830, p. 509, 512; 6 Wheat. R. 358. North American Review, id. 507, 508. sented to this doctrine; and it has been, at different times, resisted by the legislatures of several of the states, in the most formal declarations.1 § 371. But if it were admitted, that the constitution is a compact, the conclusion, that there is no common arbiter, would neither be a necessary, nor natural conclusion from that fact standing alone. To decide upon the point, it would still behove us to examine the very terms of the constitution, and the delegation of powers under it. It would be perfectly competent even for confederated states to agree upon, and delegate authority to construe the compact to a common arbiter. The people of the United States had an unquestionable right to confide this power to the government of the United States, or to any department thereof, if they chose so biter. One of the expositions of the doctrine is, that if a single state denies a power to exist under the constitution, that power is to be deemed defunct, unless three-fourths of the states shall afterwards reinstate that power by an amendment to the constitution.* What, then, is to be done, where ten states resolve, that a power exists, and one, that it does not exist? See Mr. Vice-President Calhoun's Letter of 28th August, 1832, to Gov. Hamilton. 1 Massachusetts openly opposed it in the resolutions of her legislature of the 12th of February, 1799, and declared, "that the decision of all cases in law and equity arising under the constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people, in the judicial courts of the United States." Six other states, at that time, seem to have come to the same result. And on other occasions, a larger number have concurred on the same point.§ Similar resolutions have been passed by the legislatures of Delaware and Connecticut in 1831, and by some other states. How is it possible, for a moment, to reconcile the notion, that each state is the supreme judge for itself of the construction of the constitution, with the very first resolution of the convention, which formed the constitution: "Resolved, &c. that a national government ought to be established, consisting of a supreme, legislative, judiciary, and executive?" || 4 Elliot's Debates, 320, 321 † Dane's App. 58. North American Review, October, 1830, p. 500. Journals of Convention, 83; 4 Elliot's Deb. 49. to do. The question is, whether they have done it. If they have, it becomes obligatory and binding upon all the states. § 372. It is not, then, by artificial reasoning founded upon theory, but upon a careful survey of the language of the constitution itself, that we are to interpret its powers, and its obligations. We are to treat it, as it purports on its face to be, as a cONSTITUTION of government; and we are to reject all other appellations, and definitions of it, such, as that it is a compact, especially as they may mislead us into false constructions and glosses, and can have no tendency to instruct us in its real objects. CHAPTER IV. WHO IS FINAL JUDGE OR INTERPRETER IN CONSTITUTIONAL CONTROVERSIES. §373. THE consideration of the question, whether the constitution has made provision for any common arbiter to construe its powers and obligations, would properly find a place in the analysis of the different clauses of that instrument. But, as it is immediately connected with the subject before us, it seems expedient in this place to give it a deliberate attention.1 1 The point was very strongly argued, and much considered, in the case of Cohens v. Virginia, in the Supreme Court in 1821, (6 Wheat. R. 264.) The whole argument, as well as the judgment, deserves an attentive reading. The result, to which the argument against the existence of a common arbiter leads, is presented in a very forcible manner by Mr. Chief Justice Marshall, in pages 376, 377. "The questions presented to the court by the two first points made at the bar are of great magnitude, and may be truly said vitally to affect the Union. They exclude the inquiry, whether the constitution and laws of the United States have been violated by the judgment, which the plaintiffs in error seek to review; and maintain, that, admitting such violation, it is not in the power of the government to apply a corrective. They maintain, that the nation does not possess a department capable of restraining peaceably, and by authority of law, any attempts, which may be made by a part against the legitimate powers of the whole; and that the government is reduced to the alternative of submitting to such attempts, or of resisting them by force. They maintain, that the constitution of the United States has provided no tribunal for the final construction of itself, or of the laws or treaties of the nation; but that this power may be exercised in the last resort by the courts of every state in the Union. That the constitution, laws, and treaties, may receive as many constructions, as there are states; and that this is not a mischief, or, if a mischief, is irremediable. These abstract propositions are to be determined; for he, who demands decision without permitting inquiry, affirms, that the decision he asks does not depend on inquiry. |