be an odd way of settling the rights of nations, and determining the extent of their powers! Besides, who would be parties to the issue; at whose suit should the State be summoned to appear and answer? Not at that of the United States, because a State cannot be sued by the United States, in a federal court; not at that of any other State, nor of any individual citizen, because they are not concerned in the question. It is obvious that the case does not present proper subject matter for judicial investigation; and even if it did, that no parties could be found authorized to present the issue.

Again, congress has authority "to provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States; reserving to the States, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress." Suppose that congress should usurp the right to appoint the militia officers, or the State should insist on training the militia in their own way, and not "according to the discipline prescribed by congress." How could this matter be brought before the supreme court? and even if properly brought there, how could its sentence be executed?

*Again. Suppose that congress should enact that all [*89] the slaves of the country should immediately be free. This is certainly not impossible, and I fear not even improbable, although it would be the grossest and most palpable violation of the constitutional rights of the slaveholder. This would certainly produce the most direct conflict between the State and Federal governments. It would involve a mere question of political power-the question whether the act of congress forbidding slavery, or the laws and constitution of the State allowing it, should prevail. And yet it is manifest that it presents no subject matter proper for judicial decision, and that the parties to it could not be convened before the supreme court.

These examples are sufficient to show that there is a large class of "constitutional controversies," which could not possibly be brought under the cognizance of any judicial tribunal, and still less under that of the federal courts. As to these cases, therefore, each State must of necessity, for the reasons

already stated, be its own "final judge or interpreter." They involve the mere question of political power, as between the State and federal governments; and the fact, that they are clearly withheld from the jurisdiction of the supreme court, goes far to prove that the States in framing the Constitution did not design to submit to that court any question of the like kind, in whatever form or between whatever parties it might arise, except so far only as the parties themselves were concerned.

Our author himself does not contend that the supreme court is the "final judge or interpreter" in all cases whatsoever; he, of course, admits that no court can decide any question which is not susceptible of a proper form for judicial enquiry. But he contends that, in all cases of which the supreme court can take cognizance, its decisions are final, and absolutely binding and conclusive in all respects, to all purposes, and against the States and their people. It is this sweeping conclusion which it has been my object to disprove. I can see in the federal courts nothing more than the ordinary functions of the judiciary in every country. It is their proper province to interpret the laws; but their decisions are not binding, except between the parties litigant and their privies. So far as they may claim the force of authority, they are not conclusive, even upon those who pronounce them, and certainly are not so beyond the sphere of their own government. Although the judiciary may, and frequently do, enlarge or contract the powers of their own governments, as generally understood, yet they can never enlarge or contract those of other governments, for the simple reason, that other governments are not bound by their *decisions. And so in our own systems. There [*90] is no case in which a judicial question can arise, before a federal court, between a State and the federal government. Upon what principle, then, are the States bound by the decisions of the federal judiciary? Upon no principle, certainly, except that, as to certain subjects, they have agreed to be so bound. But this agreement they made in their character of sovereign States, not with the federal government, but with one another. As sovereign States they alone are to determine the nature and extent of that agreement, and, of course, they alone

are to determine whether or not they have given the federal courts authority to bind them in any given case. This principle has frequently been asserted by the States, and always successfully.*

ence.

But these mere technical rules, upon which we have hitherto considered the subject, are altogether unworthy of its importance, and far beneath its dignity. Sovereign nations do not ask their judges what are their rights, nor do they limit their powers by judicial precedents. Still less do they entrust these important subjects to judicial tribunals not their own, and, least of all, to the tribunals of that power against which their own power is asserted. It would have been a gross inconsistency in the States of our Union to do this, since they have shown, in every part of their compact with one another, the most jealous care of their separate sovereignty and independIt is true they have agreed to be bound by the decisions of federal tribunals in certain specified cases, and it is not to be doubted that, so long as they desire the continuance of their present union, they will feel themselves bound, in every case which comes plainly within their agreement. There is no necessity to call in the aid of the supreme court to ascertain to what subjects, and how far, that agreement extends. So far as it is plain, it will be strictly observed, as national faith and honor require; there is no other guarantee. So far as it is not plain, or so far as it may be the will and pleasure of any State to deny or to resist it, the utter impotency of courts of justice to settle the difficulty will be manifested beyond all doubt. They will be admonished of their responsibility to the power which created them. The States created them. They are but an emanation of the sovereign power of the States, and can neither limit nor control that power.

Ordinarily, the judiciary are the proper interpreters of the powers of government, but they interpret in subordination to the power which created them. In governments established by an aggregate people, *such as are those of the States, a proper corrective is always found in the people them- [*91] selves. If the judicial interpretation confer too much or too little power on the government, a ready remedy is found in an * Hunter and Martin, Cohen vs. State of Virginia, and other cases.

amendment of the Constitution. But in our federal system the evil is without remedy, if the federal courts be allowed to fix the limits of federal power with reference to those of the States. It would place every thing in the State governments, except their mere existence, at the mercy of a single department of the federal government. The maxim, stare decisis, is not always adhered to by our courts; their own decisions are not held to be absolutely binding upon themselves. They may establish a right to-day and unsettle it to-morrow. A decision of the supreme court might arrest a State in the full exercise of an important and necessary power, which a previous decision of the same court had ascertained that she possessed. Thus the powers of the State governments, as to many important objects, might be kept indeterminate and constantly liable to change, so that they would lose their efficiency, and forfeit all title to confidence and respect. It is true, that in this case, too, there is a possible corrective in the power to amend the Constitution. But that power is not with the aggrieved State alone; it could be exerted only in connexion with other States, whose aid she might not be able to command. And even if she could command it, the process would be too slow to afford effectual relief. It is impossible to imagine that any free and sovereign State ever designed to surrender her power of self-protection in a case like this, or ever meant to authorize any other power reduce her to a situation so helpless and contemptible.*

to

* This want of uniformity and fixedness, in the decisions of courts, renders the supreme court the most unfit umpire that could be selected, between the federal government and the States, on questions involving their respective rights and powers. Suppose that the United States should resolve to cut a canal through the territory of Virginia; and being resisted, the supreme court should decide that they had a right to do so. Suppose that, when the work was completed, a similar attempt should be made in Massachusetts; and being resisted, the same court should decide that they had no right to do so. The effect would be that the United States would possess a right in one State, which it did not possess in another. Suppose that Virginia should impose a tax on the arsenals, dock-yards, &c. of the United States within her territory, and that, in a suit to determine the right, the supreme court should decide in favor of it. Suppose that a like attempt should be made by Massachusetts, and, upon a similar appeal to that court, it should decide against it; Virginia would enjoy a right in reference to the United States, which would be denied to Massachusetts. Other cases may be supposed, involving like consequences, and showing the absurdity of submitting to courts of justice the decision of

[*92]

Yielding, therefore, to the supreme court all the *jurisdiction and authority which properly belongs to it, we cannot safely or wisely repose in it the vast trust of ascertaining, defining or limiting the sovereign powers of the States.

of

Let us now follow the author in the enquiry, by what rules shall the Constitution be interpreted? Many of those which he has given are merely such as we apply to every instrument, and they do not, therefore, require any particular examination. The principal one, and that from which he deduces many others as consequences, is this: "It is to be construed as a frame or fundamental law of government, established by the people of the United States, according to their own free pleasure and sovereign will. In this respect, it is in no wise distinguishable from the constitutions of the State governments." That our Constitution is "a frame of government" will scarcely be denied by any one, and this, whether it be in its nature federative or consolidated. It is also, as is every other constitution 66 government, a fundamental law." It is the acknowledged basis of all federal power and authority, the sole chart by which federal officers are to direct their course. But all this leaves the enquiry still open, what is this fundamental law, what is the course indicated by this chart of federal power, and how is it to be ascertained? The author seems to suppose that a full answer to this question may be found in the fact, that this frame or fundamental law of government was established by "the people of the United States, according to their free pleasure and sovereign will." If the fact were really so, it would undoubtedly exert an important influence, and would go far to justify his construction of the Constitution. We here discern the usefulness and necessity of that historical enquiry, which has just been finished. From that enquiry we learn, distinctly and without doubt, that the Constitution was not established by "the people of the United States," and conse

controversies between governments, involving the extent and nature of their powers.

I know that the decisions of the supreme court on constitutional questions have been very consistent and uniform; but that affords no proof that they will be so through all time to come. It is enough for the purposes of the present argument, that they may be otherwise.