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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 unaccommodating spirit in some, would render that resource unavailing? A contrary supposition 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 pursuande 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 if 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 government. 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 the most dissatisfaction, have 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 boundary of jurisdiction between the Federal and State Governments, I may be permitted to refer to the thirty-ninth 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, that the same view has continued to prevail, and that it does so at this time, notwithstanding the eminent exceptions to it.
" But it is perfectly consistent with the concession of this power to the Supreme Court, in cases falling within the course of its functions, to maintain that the power has not always been rightly exercised. To say nothing of the period, happily a short one, when judges in their seats did not abstain from intemperate and party harangues, equally at variance with their duty and their dignity; there have been occasional decisions from the bench, which have incurred serious and extensive disapprobation. Still it would seem that, with but few exceptions, the course of the Judiciary has been hitherto sustained by the predominant sense of the nation.
“Those who have denied or doubted the supremacy of the judicial power of the United States, and denounce at the same time a nullifying power in a state, seem not to have sufficiently adverted to the utter inefficiency of a supremacy in a law of the land, without a supremacy in the exposition and execution of the law; nor to the destruction of all equipoise between the Federal Government and the State Governments, if, whilst the functionaries of the Federal Government are directly or indirectly elected by and responsible to the states, and the functionaries of the states are in their appointment and responsibility wholly independent of the United States, no constitutional control of any sort belong to the United States over the states. Under such an organization it is evident that it would be in the power of the states, individually, to pass unauthorized laws, and to carry them into complete effect, any thing in the Constitution and Laws of the United States to the contrary notwithstanding. This would be a nullifying power in its plenary character; and whether it had its final effect, through the Legislative, Executive, or Judiciary organ of the state, would be equally fatal to the constituted relation between the two governments.
"Should the provisions of the Constitution, as here reviewed, be found
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 secure 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.'
not to secure the government and rights of the states against usurpations and abuses on the part of the United States, the final resort within the purview of the Constitution, lies in an amendment of the Constitution, according to a process applicable by the states.
“And in the event of a failure of every constitutional resort, and an accumulation of usurpations and abuses, rendering passive obedience and non-resistance a greater evil than resistance and revolution, there can remain but one resort, the last of all-an appeal from the cancelled obligations of the constitutional compact, to original rights and the law of self-preservation. This is the ultima ratio under all governments, whether consolidated, confederated, or a compound of both; and it cannot be doubted, that a single member of the Union, in the extremity supposed, but in that only, would have a right, as an extra and ultra-constitutional right, to make the appeal.
“This brings us to the expedient lately advanced, which claims for a single state a right to appeal against an exercise of power by the government of the United States decided by the states to be ủnconstitutional, to the parties to the constitutional compact; the decision of the state to have the effect of nullifying the act of the Government of the United States, unless the decision of the state be reversed by three fourths of the parties.
“ The distinguished names and high authorities which appear to have • asserted and given a practical scope to this doctrine, entitle it to a respect which it might be difficult otherwise to feel for it.
" If the doctrine were to be understood as requiring the three fourths of the states to sustain, instead of that proportion to reverse, the decision of the appealing state, the decision to be without effect during the appeal, it would be sufficient to remark, that this extra-constitutional course might well give way to that marked out by the Constitution, which authorizes two thirds of the states to institute, and three fourths to effectuate, an amendment of the Constitution, establishing a permanent rule of the highest authority, in place of an irregular precedent &f construc-' tion only.
“But it is understood that the nullifying doctrine imports that the decision of the state is to be presumed valid, and that it overrules the law of the United States, unless overruled by three fourths of the states.
“Can more be necessary to demonstrate the inadmissibility of such a doctrine, than that it puts it in the power of the smallest fraction over one fourth of the United States, that is, of seven states out of twenty-four, to give the law and even the Constitution to seventeen states, each of the seventeen having, as parties to the Constitution, an equal right with each of the seven, to expound it, and to insist on the exposition ? That the seven might, in particular instances, be right, and the seventeen wrong, is more than possible. But to establish a positive and permanent rule giving such a power, to such a minority, over such a majority, would overturn the first principle of free government, and in practice necessarily overturn the government itself.
“It is to be recollected that the Constitution was proposed to the people of the states as a whole, and unanimously adopted by the states as
a whole, it being a part of the Constitution that not less than three fourths of the states should be competent to make any alterations in what had been unanimously agreed to. So
great is the caution on this point, that in two cases where peculiar interests were at stake, a proportion even of three fourths is distrusted, and unanimity required to make an alteration.
“When the Constitution was adopted as a whole, it is certain that there were many parts, which, if separately proposed, would have been promptly rejected. It is far from impossible that every part of a Constitution might be rejected by a majority, and yet, taken together as a whole, be unanimously accepted. Free Constitutions will rarely, if ever, be formed, without reciprocal concessions; without articles conditioned on and balancing each other. Is there a Constitution of a single state out of the twenty-four, that would bear the experiment of having its component parts submitted to the people and separately decided on?
“What the fate of the Constitution of the United States would be, if a small proportion of the states could expunge parts of it particularly valued by a large majority, it can have but one answer.
“The difficulty is not removed by limiting the doctrine to cases of construction. How many cases of that sort, involving cardinal provala sions of the Constitution have occurred ? How many now exist ? How many may hereafter spring up ? How many might be ingeniously created, if entitled to the privilege of a decision in the mode proposed ?
“It is certain that the principle of that mode would not reach further than is contemplated. If a single state can of right require three fourths of its co-states to overrule its exposition of the Constitution, because that proportion is authorized to amend it, would the plea be less plausible that, as the Constitution was unanimously established, it ought to be unanimously expounded ?
“The reply to all such suggestions seems to be unavoidable and irresistible; that the Constitution is a compact, that its text is to be expounded according to the provisions for expounding it-making a part of the compact; and that none of the parties can rightfully renounce the expounding provision more than any other part. When such a right accrues, as may accrue, it must grow out of abuses of the compact releasing the sufferers from their fealty to it.
“In favor of the nullifying claim for the states, individually, it appears, as you observe, that the proceedings of the Legislature of Vir. ginia, in '98 and '99, against the Alien and Sedition Acts, are rnuch
" It may often happen, as experience proves, that erroneous constructions, not anticipated, may not be sufficiently guarded against, in the language used; and it is due to the distinguished individuals, who have misconceived the intention of those proceedings, to suppose that the meaning of the Legislature, though well comprehended at the time, may not now be obvious to those unacquainted with the contemporary indicaions and impressions. “But it is believed that by keeping in view the distinction between the governments of the states, and the states in which they were parties to the Constitution ; between the rights of the parties, in their concurrent and in their individual capacities; between the several modes and objects of interposition against the abuses of power, and especially between interpositions within the purview of the Constitution, and interpositions appealing from the Constitution to the rights of nature paramount to all constitutions; with an attention, always of explanatory use, to the views and arguments which were combated, the Resolutions of Virginia, as vindicated in the Report on them, will be found entitled to an exposition, showing a consistency in their parts, and an inconsistency of the whole, with the doctrine under consideration.
“That the Legislature could not have intended to sanction such a doctrine, is to be inferred from the debates in the House of Delegates, and from the address of the two Houses to their constituents, on the subject of the Resolutions. The tenor of the debates, which were ably conducted, and are understood to have been revised for the press by most, if not. all, of the speakers, discloses no reference whatever to a constitutional right in an individual state, to arrest by force the operation of a law of the United States. Concert among the states for redress against the Alien and Sedition Laws, as acts of usurped power, was a leading sentiment; and the attainment of a concert, the immediate object of the course adopted by the legislature, which was that of inviting the other states to concur in declaring the acts to be unconstitutional, and to co-operate by the necessary and proper measures in maintaining unimpaired the authorities, rights, and liberties reserved to the states respectively, and to the people.' That by the necessary and proper measures to be concurrently and co-operatively taken, were meant measures known to the Constitution, particularly the ordinary control of the people and legislatures of the states, over the Government of the United States, cannot be doubted; and the interposition of this control, as the event showed, was equal to the occasion.
“It is worthy of remark, and explanatory of the intentions of the Legislature, that the words 'not law, but utterly null, void, and of no force or effect,' which had followed, in one of the resolutions, the word
unconstitutional,' were struck out by common consent. Though the words were in fact but synonymous with unconstitutional ;' yet to guard against a misunderstanding of this phrase as more than declaratory of opinion, the word 'unconstitutional alone was retained, as not liable to that danger.
“ The published Address of the Legislature to the people, their constituents, affords another conclusive evidence of its views. The address warns them against the encroaching spirit of the General Government, argues the unconstitutionality of the Alien and Sedition Acts, points to other instances in which the constitutional limits had been overleaped ; dwells upon the dangerous mode of deriving power by implication; and in general presses the necessity of watching over the consolidating tendency of the Federal policy. But nothing is said that can be understood to look to means of maintaining the rights of the states, beyond the regular ones, within the forms of the Constitution.