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court, on subject matter not properly cognizable before it, nor to those between parties not responsible to its jurisdiction. Who, then, is to decide this point ? Shall the supreme court decide it for itself, and against all the world ? It is admitted that every court must necessarily determine every question of jurisdiction which arises before it, and, so far, it must of course be the judge of its own powers. If it be a court of the last resort, its decision is necessarily final, so far as those authorities are concerned, which belong to the same system of government with itself. There is, in fact, no absolute and certain limitation, in any constitutional government, to the powers of its own judiciary; for, as those powers are derived from the Constitution, and as the judges are the interpreters of the Constitution, there is nothing to prevent them from interpreting in favor of any power which they may claim. The supreme court, therefore, may assume jurisdiction over subjects and between parties, not allowed by the constitution, and there is no power in the federal government to gainsay it. Even the impeachment and removal of the judges, for ignorance or corruption, would not invalidate their decisions already pronounced. Is there, then, no redress? The Constitution itself will answer this question, in the most satisfactory manner.
The tenth article of the amendments of the Constitution provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The powers thus reserved, are not only reserved against the federal government in whole, but against each and every department thereof. The judiciary is no more excepted out of the reservation than is the legislature or the executive. Of what nature, then, are those reserved powers ? Not the powers, if any such there be, which are possessed by all the States together, for the reservation is to “the States respectively;" that is, to each State separately and distinctly. Now we can form no idea of any power possessed by a State as such, and independent of every other State, which is not, in its nature, a sovereign power. Every power so reserved, therefore, must be of such a character that each State
may *exercise it, without the least reference or responsi[*85]
bility to any other State whatever.
We have already seen that the Constitution of the United States was formed by the States as such, and the reservation above quoted is an admission that, in performing that work, they acted as independent and sovereign States. It is incident to every sovereignty to be alone the judge of its own compacts and agreements. No other State or assemblage of States has the least right to interfere with it, in this respect, and cannot do so without impairing its sovereignty. The Constitution of the United States is but the agreement which each State has made, with each and all the other States, and is not distinguishable, in the principle we are examining, from any other agreement between sovereign States. Each State, therefore, has a right to interpret that agreement for itself, unless it has clearly waived that right in favor of another power. That the right is not waived in the case under consideration, is apparent from the fact already stated, that if the judiciary be the sole judges of the extent of their own powers, their powers are universal, and the enumeration in the Constitution is idle and useless. But it is still farther apparent from the following view.
The Federal Government is the creature of the States. It is not a party to the Constitution, but the result of it—the creation of that agreement which was made by the States as parties. It is a mere agent, entrusted with limited powers for certain specific objects; which powers and objects are enumerated in the Constitution. Shall the agent be permitted to judge of the extent of his own powers, without reference to his constituent? To a certain extent he is compelled to do this, in the very act of exercising them, but this is always in subordination to the authority by whom his powers were conferred. If this were not so, the result would be, that the agent would possess every power which the constituent could confer, notwithstanding the plainest and most express terms of the grant. This would be against all principle and all reason. If such a rule should prevail in regard to government, a written constitution would be the idlest thing imaginable. It would afford no barrier against the usurpations of the government, and no security for the rights and liberties of the people. If then the federal government has no authority to judge, in the last resort, of the extent of its own powers, with what propriety can it be said that a single depart
ment of that government may do so? Nay, it is said that this department may not only judge for itself, but for the other departments also.
This is an absurdity as pernicious as it is *gross and palpable. If the judiciary may determine the [*86]
powers of the federal government, it may pronounce them either less or more than they really are. That government at least would have no right to complain of the decisions of an umpire which it had chosen for itself, and endeavored to force upon the States and the people. Thus a single department might deny to both the others, salutary powers which they really possessed, and which the public interest or the public safety might require them to exercise; or it might confer on them powers never conceded, inconsistent with private right, and dangerous to public liberty.
In construing the powers of a free and equal government, it is enough to disprove the existence of any rule, to show that such consequences as these will result from it. Nothing short of the plainest and most unequivocal language should reconcile us to the adoption of such a rule. No such language can be found in our Constitution. The only clause, from which the rule can be supposed to be derived, is that which confers jurisdiction in “all cases arising under the Constitution, and the laws made in pursuance thereof; but this clause is clearly not susceptible of any such construction. Every right may be said to be a constitutional right, because no right exists which the Constitution disallows; and consequently every remedy to enforce those rights presents “a case arising under the Constitution.” But a construction so latitudinous will scarcely be contended for by any one. The clause under consideration gives jurisdiction only as to those matters, and between those parties, enumerated in the Constitution itself. Whenever such a case arises, the federal courts have cognizance of it; but the right to decide a case arising under the Constitution does not necessarily imply the right to determine in the last resort what that Constitution is. If the federal courts should, in the very teeth of the eleventh amendment, take jurisdiction of cases “commenced or prosecuted against one of the States by citizens of another State,” the decision of those courts, that they had jurisdiction, would certainly not settle the Constitution in that particular. The State would be under no obligation to submit to such a de
cision, and it would resist it by virtue of its sovereign right to decide for itself, whether it had agreed to the exercise of such a jurisdiction or not.
Considering the nature of our system of government, the States ought to be, and I presume always will be, extremely careful not to interpose their sovereign power against the decisions of the supreme court in any case where that court clearly has jurisdiction. Of this character are the cases already cited at the commencement of this *inquiry; such, for example, as those between two States, those affecting for
[*87] eign ministers, those of admiralty and maritime jurisdiction, &c. As to all these subjects the jurisdiction is clear, and no State can have any interest to dispute it. The decisions of the supreme court, therefore, ought to be considered as final and conclusive, and it would be a breach of the contract on the part of any State to refuse submission to them. There are, however, many cases involving questions of the powers of government, State and federal, which cannot assume a proper form for judicial investigation. Most questions of mere political power, are of this sort; and such are all questions between a State and the United States. As to these, the Constitution confers no jurisdiction on the federal courts, and, of course, it provides no common umpire to whose decision they can be referred. In such cases, therefore, the State must of necessity decide for itself. But there are also cases between citizen and citizen, arising under the laws of the United States, and between the United States and the citizen, arising in the same way. So far as the federal tribunals have cognizance of such cases, their decisions are final. If the constitutionality of the law under which the case arises, should come into question, the court has authority to decide it, and there is no relief for the parties, in any other judicial proceeding. If the decision, in a controversy between the United States and a citizen, should be against the United States, it is, of course, final and conclusive. If the decision should be against the citizen, his only relief is by an appeal to his own State. He is under no obligation to submit to federal decisions at all, except so far only as his own State has commanded him to do so; and he has, therefore, a perfect right to ask his State whether her commands extend to the particular
case or not.
He does not ask whether the federal court has interpreted the law correctly or not, but whether or not she ever consented that congress should pass the law. If congress had such power, he has no relief, for the decision of the highest federal court is final; if congress had not such power, then he is oppressed by the action of a usurped authority, and has a right to look to his own State for redress. His State may interpose in his favor or not, as she may think proper. If she does not, then there is an end of the matter; if she does, then it is no longer a judicial question. The question is then between new parties, who are not bound by the former decision ; between a sovereign State and its own agent; between a State and the United States. As between these parties the federal tribunals have no jurisdiction, there is no longer a common umpire to whom the controversy can be referred. The State must
of *necessity judge for itself, by virtue of that inherent, [*88]
sovereign power and authority, which, as to this matter, it has never surrendered to any other tribunal. Its decision, whatever it may be, is binding upon itself and upon its own people, and no farther.
A great variety of cases are possible, some of which are not unlikely to arise, involving the true construction of the Federal Constitution, but which could not possibly be presented to the courts, in a form proper for their decision.
for their decision. The following are examples.
By the 4th section of the 4th article it is provided that “Congress shall guaranty to every State in the Union a republican form of government.” What is a republican form of government, and how shall the question be decided? In its very nature, it is a political, and not a judicial question, and it is not easy to imagine by what contrivance it could be brought before a court. Suppose a State should adopt a constitution not republican, in the opinion of congress; what course would be pursued ? Congress might, by resolution, determine that the Constitution was not republican, and direct the State to form a new one. And suppose that the State should refuse to do so, on the ground that it had already complied with the requisitions of the Federal Constitution in that respect ? Could congress direct an issue to try the question at the bar of the supreme court? This would, indeed,