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States, absolutely sovereign, may not create for themselves, by compact, a common government, with powers as extensive and supreme as any sovereign people can confer on a government established by themselves. In what other particular ours is a consolidated or national government, I leave it to the advocates of that doctrine to show. We come now to a more particular and detailed examination of the question, “Who is the final judge or interpreter in constitutional *controversies?” The fourth chapter of this *80] division of the author's work is devoted to this enquiry; and the elaborate examination which he has given to the subject, shows that he attached a just importance to it. The conclusion, however, to which he has arrived, leaves still unsettled the most difficult and contested propositions which belong to this part of the Constitution. His conclusion is, that, “in all questions of a judicial nature,” the supreme court of the United States is the final umpire; and that the States, as well as individuals, are absolutely bound by its decisions. His reasoning upon this part of the subject is not new, and does not strike me as being particularly forcible. Without deeming it necessary to follow him in the precise order of his argument, I shall endeavor to meet it in all its parts, in the progress of this examination. Its general outline is this: It is within the proper function of the judiciary to interpret the laws; the Constitution is the supreme law, and therefore it is within the proper function of the judiciary to interpret the Constitution; of course, it is the province of the federal judiciary to interpret the Federal Constitution. And as that Constitution, and all laws made in pursuance thereof, are the supreme law of the land, anything in the laws or constitution of any State to the contrary notwithstanding, therefore, the interpretations of that Constitution, as given by the supreme court, are obligatory, final and conclusive, upon the people and the States. Before we enter upon this investigation, it is proper to place the proposition to be discussed in terms somewhat more definite and precise than those which the author has employed. What, then, is meant by “final judge and interpreter?” In the ordinary acceptation of these terms, we should understand by them a tribunal having lawful cognizance of a subject, and from whose decisions there is no appeal. In this view of the question there can be no difficulty in admitting that the decisions of the supreme court are final and conclusive. Whatever comes within the legitimate cognizance of that tribunal, it has a right to decide, whether it be a question of the law, or of the Constitution; and no other tribunal can reverse its decision. The Constitution, which creates the supreme court, creates no other court of superior or appellate jurisdiction to it; and, consequently, its decisions are strictly “final.” There is no power in the same government to which that court belongs, to reverse or control it, nor are there any means therein of resisting its authority. So far, therefore, as the Federal Constitution has provided for the subject at all, the supreme court is, beyond question, the final judge or arbiter; and this, too, whether the jurisdiction which it exercises be legitimate or usurped. [*81] *The terms “constitutional controversies” are still more indefinite. Every controversy which is submitted to the decision of a judicial tribunal, whether State or Federal, necessarily involves the constitutionality of the law under which it arises. If the law be not constitutional, the court cannot enforce it, and, of course, the question whether it be constitutional or not, necessarily arises in every case to which the court is asked to apply it. The very act of enforcing a law presupposes that its constitutionality has been determined. In this sense, every court, whether State or federal, is the “judge or arbiter of constitutional controversies,” arising in causes before it; and if there be no appeal from its decision, it is the “final” judge or arbiter, in the sense already expressed. Let us now enquire what “constitutional controversies” the federal courts have authority to decide, and how far its decisions are final and conclusive against all the world. The third article of the Constitution provides that “The judicial powers shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State, claiming lands, under grants of different States; and between a State and the citizens thereof, and foreign States, citizens or subjects.” The eleventh amendment provides that “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign State.” It will be conceded on all hands that the federal courts have no jurisdiction except what is here conferred. The judiciary, as a part of the federal government, derives its powers only from the Constitution which creates that government. The term “cases” implies that the subject matter shall be proper for judicial decision; and the parties between whom alone jurisdiction can be entertained, are specifically enumerated. Beyond these “cases” and these parties they have no jurisdiction. There is no part of the Constitution in which the framers of it have displayed a more jealous care of the rights of the States, than in the *limitations of the judicial power. It is re- [*82] markable that no power is conferred except what is absolutely necessary to carry into effect the general design, and accomplish the general object of the States, as independent, confederated States. The federal tribunals cannot take cognizance of any case whatever in which all the States have not an equal and common interest that a just and impartial decision shall be had. A brief analysis of the provisions of the Constitution, will make this sufficiently clear. Cases “arising under the Constitution” are those in which some right or privilege is denied, which the Constitution confers, or something is done, which the Constitution prohibits, as expressed in the Constitution itself. Those which arise “under the laws of the United States” are such as involve rights or duties, which result from the legislation of congress. Cases of these kinds are simply the carrying out of the compact or agreement made between the States, by the Constitution itself, and, of course, all the States are alike interested in them. For this reason alone, if there were no other, they ought to be entrusted to the common tribunals of all the States. There is another reason, however, equally conclusive. The judicial should always be at least co-extensive with the legislative power; for it would be a strange anomaly, and could produce nothing but disorder and confusion, to confer on a government the power to make a law, without conferring, at the same time, the right to interpret, and the power to enforce it. Cases arising under treaties, made under the authority of the United States, and those “affecting ambassadors and other public ministers and consuls,” could not properly be entrusted to any other than the federal tribunals. Treaties are made under the common authority of all the States, and all, alike, are bound for the faithful observance of them. Ambassadors and other public ministers and consuls are received under the common authority of all the States, and their duties relate only to matters involving alike the interests of all. The peace of the country, and the harmony of its relations with foreign powers, depend, in a peculiar degree, on the good faith with which its duties in reference to these subjects are discharged. Hence it would be unsafe to entrust them to any other than their own control; and even if this were not so, it would be altogether incongruous to appeal to a State tribunal, to enforce the rights, the obligations or the duties of the United States. For like reasons, cases of admiralty and maritime jurisdiction are properly entrusted to the federal tribunals. Controversies to which the United States shall be a party [*83] should, *upon general principles, belong only to her own courts. There would be neither propriety nor justice in permitting any one State to decide a case in which all the States are parties. In like manner those between two or more States—between a State and citizens of another State, where the State is plaintiff—(it cannot be sued)—and between citizens of different States, could not be entrusted to the tribunals of any particular State interested, or whose citizens are interested therein, without danger of injustice and partiality. Jurisdiction is given to the federal courts, in these cases, simply because they are equally interested for all the parties, are the common courts of all the parties, and therefore are presumed to form the only fair and impartial tribunal between them. The same reasoning applies to cases between citizens of the same State, claiming lands under grants of different States. Cases of this sort involve questions of the sovereign power of the States, and could not, with any show of propriety, be entrusted to the decision of either of them, interested as it would be to sustain its own acts, against those of the sister State. The jurisdiction in this case is given upon the same principles which give it in cases between two or more States. Controversies between a State or the citizens thereof, and foreign States, citizens or subjects, depend on a different principle, but one equally affecting the common rights and interests of all the States. A foreign State cannot, of course, be sued; she can appear in our courts only as plaintiff. Yet, in whatever form such controversies, or those affecting the citizens of a foreign State, may arise, all the States have a deep interest that an impartial tribunal, satisfactory to the foreign party, should be provided. The denial of justice is a legitimate, and not an unfruitful cause of war. As no State can be involved in war without involving all the rest, they all have a common interest to withdraw from the State tribunals a jurisdiction which may bring them within the danger of that result. All the States are alike bound to render justice to foreign States and their people; and this common responsibility gives them a right to demand that every question involving it shall be decided by their common judicatory. This brief review of the judicial power of the United States, as given in the Constitution, is not offered as a full analysis of the subject; for the question before us does not render any such analysis necessary. My design has been only to show with what extreme reserve judicial power has been conferred, and with what caution it has been restricted to those cases, only, which the new relation between the States, established by the Constitution, rendered absolutely *necessary. In all r, 84 the cases above supposed, the jurisdiction of the federal [*84] courts is clear and undoubted; and as the States have, in the frame of the Constitution, agreed to submit to the exercise of this jurisdiction, they are bound to do so, and to compel their people to like submission. But it is to be remarked, that they are bound only by their agreement, and not beyond it. They are under no obligation to submit to the decisions of the supreme

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