Mr. Hayne's Reply to Mr. Webster, abridged by himself.
Mr. HAYNE. The proposition which I laid down, and from which the gentleman dissents, is taken from the Virginia resolutions of '98, and is in these words—"that, in case of a deliberate, palpable, and dangerous exercise, by the federal government, of powers not granted by the compact, (the Constitution,) the states who are parties thereto have a right to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties, appertaining to them." The gentleman insists that the states have no right to decide whether the Constitution has been violated by acts of Congress or not; but that the federal government is the exclusive judge of the extent of its own powers; and that, in case of a violation of the Constitution, however "deliberate, palpable, and dangerous," a state has no constitutional redress, except where the matter can be brought before the Supreme Court, whose decision must be final and conclusive on the subject. Having thus distinctly stated the points in dispute between the gentleman and myself, I proceed to examine them. And here it will be necessary to go back to the origin of the federal government. It cannot be doubted, and is not denied, that before the Constitution, each state was an independent sovereignty, possessing all the rights and powers appertaining to independent nations; nor can it be denied, that, after the Constitution was formed, they remained equally sovereign and independent, as to all powers not expressly delegated to the federal government. This would have been the case even if no positive provisions to that effect had been inserted in that instrument. But to remove all doubt, it is expressly declared, by the 10th article of the amendment of the Constitution, "that the powers not delegated to the states, by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." The true nature of the Federal Constitution, therefore, is (in the language of Mr. Madison) "a compact to which the states are parties,"—a compact by which each state, acting in its sovereign capacity, has entered into an agreement with the other states, by which they have consented that certain designated powers shall be exercised by the United States, in the manner prescribed in the instrument. Nothing can be clearer than that, under such a system, the federal government, exercising strictly delegated powers, can have no right to act beyond the pale of its authority, and that all such acts are void. A state, on the contrary, retaining all powers not expressly given away, may lawfully act in all cases where she has not voluntarily imposed restrictions on herself. Here, then, is a case of a compact between sovereigns; and the question arises, what is the remedy for a clear violation of its express terms by one of the parties? And here the plain, obvious dictate of common sense is in strict conformity with the understanding of mankind and the practice of nations in all analogous cases—"that, where resort can be had to no common superior the parties to the compact must themselves be the rightful judges whether the bargain has been pursued or violated." (Madison's Report, p. 20.) When it is insisted by the gentleman that one of the parties "has the power of deciding ultimately and conclusively upon the extent of its own authority," I ask for the grant of such a power. I call upon the gentleman to show it to me in the Constitution. It is not to be found there.
But if there be no common superior, it results, from the very nature of things, that the parties must be their own judges. This is admitted to be the case where treaties are formed between independent nations; and if the same rule does not apply to the federal compact, it must be because the federal is superior to the state government, or because the states have surrendered their sovereignty. Neither branch of this proposition can be maintained for a moment.
Here, however, we are met by the argument that the Constitution was not formed by the states in their sovereign capacity, but by the people; and it is therefore inferred that the federal government, being created by all the people, must be supreme; and though it is not contended that the Constitution may be rightfully violated, yet it is insisted that from the decision of the federal government there can be no appeal.
I deny that the Constitution was framed by the people in the sense in which that word is used on the other side, and insist that it was framed by the states, acting in their sovereign capacity. When, in the preamble of the Constitution, we find the words, "We, the people of the United States," it is clear they can only relate to the people as citizens of the several states, because the federal government was not then in existence.
We accordingly find, in every part of that instrument, that the people are always spoken of in that sense. Thus, in the 2d section of the 1st article, it is declared, "that the House of Representatives shall be composed of members chosen every second year by the people of the several states." To show that, in entering into this compact, the states acted in their sovereign capacity, and not merely as parts of one great community, what can be more conclusive than the historical fact, that when every state had consented to it except one, she was not held to be bound. A majority of the people in any state bound that state; but nine tenths of all the people of the United States could not bind the people of Rhode Island, until Rhode Island, as a state, had consented to the compact.
I am not disposed to dwell longer on this point, which does appear to my mind to be too clear to admit of controversy. But I will quote from Mr. Madison's Report, which goes the whole length in support of the doctrines for which I have contended.
Having now established the position that the Constitution was a compact between sovereign and independent states, having no common superior, "it follows of necessity" (to borrow the language of Mr. Madison) "that there can be no tribunal above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition."
But the gentleman insists that the tribunal provided by the Constitution, for the decisions of controversies between the states and the federal government, is the Supreme Court.
It is clear that questions of sovereignty are not the proper subjects of judicial investigation. They are much too large, and of too delicate a nature, to be brought within the jurisdiction of a court of justice. Courts, whether supreme or subordinate, are the mere creatures of the sovereign power, designed to expound and carry into effect its sovereign will. No independent state ever yet submitted to a judge on the bench the true construction of a compact between itself and another sovereign. All courts may incidentally take cognizance of treaties, where rights are claimed under them; but who ever heard of a court making an inquiry into the authority of the agents of the high contracting parties to make the treaty—whether its terms had been fulfilled, or whether it Had become void on account of a breach of its conditions on either side? All these are political and not judicial questions. Some reliance has been placed on those provisions of the Constitution which constitute "one Supreme Court," which provide "that the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties," and which declare "that the Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties, &c., shall be the supreme law of the land," &c. Now, as to the name of the Supreme Court, it is clear that the term has relation only to its supremacy over the inferior courts provided for by the Constitution, and has no reference whatever to any supremacy over the sovereign states. The words are, "The judicial power of the United States shall be vested in one Supreme Court, and such inferior courts as Congress may, from time to time, establish," &c. Though jurisdiction is given "in cases arising under the Constitution," yet it is expressly limited to "cases in law and equity," showing conclusively that this jurisdiction was incidental merely to the ordinary administration of justice, and not intended to touch high questions of conflicting sovereignty. When it is declared that the "Constitution, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land," it is manifest that no indication is given, either as to the power of the Supreme Court to bind the states by its decisions, or as to the course to be pursued in the event of laws being passed not in pursuance to the Constitution. And I beg leave to call gentlemen's attention to the striking fact, that the powers of the Supreme Court, in relation to questions arising under "the laws and the Constitution," are coëxtensive with those arising under treaties. In all of these cases, the power is limited to questions arising in law and equity; that is to say, to cases where jurisdiction is incidentally acquired in the ordinary administration of justice. But as, with regard to treaties, the Supreme Court has never assumed jurisdiction over questions arising between the sovereigns who are parties to them, so, under the Constitution, they cannot assume jurisdiction over questions arising between individual states and the United States.
But to prove, as I think conclusively, that the judiciary were not designed to act as umpires, it is only necessary to observe that, in a great majority of cases, that court could manifestly not take jurisdiction of the matters in dispute. Whenever it may be designed by the federal government to commit a violation of the Constitution, it can be done, and always will be done, in such a manner as to deprive the court of all jurisdiction over the subject. Take the case of the tariff and internal improvements; whether constitutional or unconstitutional, it is admitted that the Supreme Court have no jurisdiction. Suppose Congress should, for the acknowledged purpose of making an equal distribution of the property of the country among states or individuals, proceed to lay taxes to the amount of $50,000,000 a year. Could the Supreme Court take cognizance of the act laving the tax, or making the distribution? Certainly not.
Take another case, which is very likely to occur. Congress have the unlimited power of taxation. Suppose them also to assume an unlimited power of appropriation. Appropriations of money are made to establish presses, promote education, build and support churches, create an order of nobility, or for any other unconstitutional object; it is manifest that in none of these cases could the constitutionality of the laws making those grants be tested before the Supreme Court.
It would be in vain that a state should come before the judges with an act appropriating money to any of these objects, and ask of the court to decide whether these grants were constitutional. They could not even be heard; the court would say they had nothing to do with it; and they would say rightly. It is idle, therefore, to talk of the Supreme Court affording any security to the states, in cases where their rights may be violated by the exercise of unconstitutional powers on the part of the federal government. On this subject Mr. Madison, in his Report, says: "But it is objected that the judicial authority is to be regarded as the sole expositor of the Constitution in the last resort; and it may be asked, for what reason the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day, and in so solemn a manner.
"On this objection it might be observed, first, that there may be instances of usurped power which the forms of the Constitution would never draw within the control of the judicial department."
"But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it.
"However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve."
If, then, the Supreme Court are not, and, from their organization, cannot be, the umpires in questions of conflicting sovereignty, the next point to be considered is, whether Congress themselves possess the right of deciding conclusively on the extent of their own powers. This, I know, is a popular notion, and it is founded on the idea that, as all the states are represented here, nothing can prevail which is not in conformity with the will of the majority; and it is supposed to be a republican maxim, "that the majority must govern."
Now, will any one contend that it is the true spirit of this government, that the will of a majority of Congress should, in all cases, be the supreme law? If no security was intended to be provided for the rights of the states, and the liberty of the citizens, beyond the mere organization of the federal government, we should have had no written constitution, but Congress would have been authorized to legislate for us in all cases whatsoever, and the acts of our state legislatures, like those of the present legislative councils in the territories, would have been subjected to the revision and control of Congress. If the will of a majority of Congress is to be the supreme law of the land, it is clear the Constitution is a dead letter, and has utterly failed of the very object for which it was designed—the protection of the rights of the minority. But when, by the very terms of the compact, strict limitations are imposed on every branch of the federal government, and it is, moreover, expressly declared that all powers not granted to them "are reserved to the states or the people," with what show of reason can it be contended that the federal government is to be the exclusive judge of the extent of its own powers? A written constitution was resorted to in this country, as a great experiment, for the purpose of ascertaining how far the rights of a minority could be secured against the encroachments of majorities—often acting under party excitement, and not unfrequently under the influence of strong interests. The moment that Constitution was formed, the will of the majority ceased to be the law, except in cases that should be acknowledged by the parties to be within the Constitution, and to have been thereby submitted to their will. But when Congress (exercising a delegated and strictly limited authority) pass beyond these limits, their acts become null and void, and must be declared to be so by the courts, in cases within their jurisdiction; and may be pronounced to be so by the states themselves, in cases not within the jurisdiction of the courts, of sufficient importance to justify such an interference.
But what then? asks the gentleman. A state is brought into collision with the United States, in relation to the exercise of unconstitutional powers; who is to decide between them? Sir, it is the common case of difference of opinion between sovereigns, as to the true construction of a compact. Does such a difference of opinion necessarily produce war? No. And if not among rival nations, why should it do so among friendly states? In all such cases, some mode must be devised, by mutual agreement, for settling the difficulty; and, most happily for us, that mode is clearly indicated in the Constitution itself, and results, indeed, from the very form and structure of the government. The creating power is three fourths of the states. By their decision, the parties to the compact have agreed to be bound, even to the extent of changing the entire form of the government itself; and it follows of necessity, that, in case of a deliberate and settled difference of opinion between the parties to the compact, as to the extent of the powers of either, resort must be had to their common superior, (that power which may give any character to the Constitution they may think proper,) viz., three fourths of the states.
But, it has been asked, why not compel a state objecting to the constitutionality of a law to appeal to her sister states by a proposition to amend the Constitution? I answer, because such a course would, in the first instance, admit the exercise of an unconstitutional authority, which the states are not bound to submit to, even for a day; and because it would be absurd to suppose that any redress would ever be obtained by such an appeal, even if a state were at liberty to make it. If a majority of both houses of Congress should, from any motive, be induced deliberately to exercise "powers not granted," what prospect would there be of "arresting the progress of the evil," by a vote of three fourths? But the Constitution does not permit a minority to submit to the people a proposition for an amendment of the Constitution. Such a proposition can only come from "two thirds of the two houses of Congress, or the legislatures of two thirds of the states." It will be seen, therefore, at once, that a minority, whose constitutional rights are violated, can have no redress by an amendment of the Constitution. When any state is brought into direct collision with the federal government, in the case of an attempt, by the latter, to exercise unconstitutional powers, the appeal must be made by Congress, (the party proposing to exert the disputed powers,) in order to have it expressly conferred; and until so conferred, the exercise of such authority must be suspended. Even in case of doubt, such an appeal is due to the peace and harmony of the government. On this subject our present chief magistrate, in his opening message to Congress, says, "I regard an appeal to the source of power, in cases of real doubt, and where its exercise is deemed indispensable to the general welfare, as among the most sacred of all our obligations. Upon this country, more than any other, has, in the providence of God, been cast the special guardianship of the great principle of adherence to written constitutions. If it fail here, all hope in regard to it will be extinguished. That this was intended to be a government of limited and specific, and not general powers, must be admitted by all; and it is our duty to preserve for it the character intended by its framers. The scheme has worked well. It has exceeded the hopes of those who devised it, and become an object of admiration to the world. Nothing is clearer, in my view, than that we are chiefly indebted for the success of the Constitution, under which we are now acting, to the watchful and auxiliary operation of the state authorities. This is not the reflection of a day, but belongs to the most deeply-rooted convictions of my mind. I cannot, therefore, too strongly or too earnestly, for my own sense of its importance, warn you against all encroachments upon the legitimate sphere of state sovereignty. Sustained by its healthful and invigorating influence, the federal system can never fail."
I have already shown, that it has been fully recognized by the Virginia resolutions of '98, and by Mr. Madison's report on these resolutions, that it is not only "the right but the duty of the states" to "judge of infractions of the Constitution," and to interpose for maintaining within their limits the authorities, rights, and liberties, appertaining to them.
Mr. Jefferson, on various occasions, expressed himself in language equally strong. In the Kentucky resolutions of '98, prepared by him, it is declared that the federal government "was not made the exclusive and final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as the mode and measure of redress."
In the Kentucky resolutions of '99, it is even more explicitly declared "that the several states which formed the Constitution, being sovereign and independent, have the unquestionable right to judge of its infraction, and that nullification by those sovereignties of all unauthorized acts done under color of that instrument is the rightful remedy."
But the gentleman says, this right will be dangerous. Sir, I insist that, of all the checks that have been provided by the Constitution, this is by far the safest, and the least liable to abuse.
But there is one point of view in which this matter presents itself to my mind with irresistible force. The Supreme Court, it is admitted, may nullify an act of Congress, by declaring it to be unconstitutional. Can Congress, after such a nullification, proceed to enforce the law, even if they should differ in opinion from the court? What, then, would be the effect of such a decision? And what would be the remedy in such a case? Congress would be arrested in the exercise of the disputed power, and the only remedy would be, an appeal to the creating power—three fourths of the states—for an amendment to the Constitution. And by whom must such an appeal be made? It must be made by the party proposing to exercise the disputed power. Now, I will ask whether a sovereign state may not be safely intrusted with the exercise of a power, operating merely as a check, which is admitted to belong to the Supreme Court, and which may be exercised every day by any three of its members. Sir, no idea that can be formed of arbitrary power on the one hand, and abject dependence on the other, can be carried farther than to suppose that three individuals, mere men, "subject to like passions with ourselves," may be safely intrusted with the power to nullify an act of Congress, because they conceive it to be unconstitutional; but that a sovereign and independent state—even the great state of New York—is bound, implicitly, to submit to its operation, even where it violates, in the grossest manner, her own rights, or the liberties of her citizens. But we do not contend that a common case w:ould justify the interposition.
This is the "extreme medicine of the state," and cannot become our daily bread.
Mr. Madison, in his Report, says, "It does not follow, however, that because the states, as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed, either in a hasty manner, or on doubtful and inferior occasions.
"The resolution has, accordingly, guarded against any misapprehensions of its object, by expressly requiring, for such an interposition, 'the case of a deliberate, palpable, and dangerous breach of the Constitution, by the exercise of powers not granted by it.'
"But the resolution has done more than guard against misconstruction, by expressly referring to cases of a deliberate, palpable, and dangerous nature. It specifies the object of the interposition, which it contemplates to be solely that of arresting the progress of the evil of usurpation, and of maintaining the authorities, rights, and liberties, appertaining to the states, as parties to the Constitution."
No one can read this without perceiving that Mr. Madison goes the whole length, in support of the principles for which I have been contending.
The gentleman has called upon us to carry out our scheme practically. Now, sir, if I am correct in my view of this matter, then it follows, of course, that, the right of a state being established, the federal government is bound to acquiesce in a solemn decision of a state, acting in its sovereign capacity, at least so far as to make an appeal to the people for an amendment of the Constitution. This solemn decision of a state (made either through its legislature or a convention, as may be supposed to be the proper organ of its sovereign will—a point I do not propose now to discuss) binds the federal government, under the highest constitutional obligation, not to resort to any means of coercion against the citizens of the dissenting state. How, then, can any collision ensue between the federal and state governments—unless, indeed, the former should determine to enforce the law by unconstitutional means?
Sir, I will put the case home to the gentleman. Is there any violation of the constitutional rights of the states, and the liberties of the citizen (sanctioned by Congress and the Supreme Court,) which he would believe it to be the right and duty of a state to resist? Does he contend for the doctrine "of passive obedience and non-resistance?" Would he justify an open resistance to an act of Congress, sanctioned by the courts, which should abolish the trial by jury, or destroy the freedom of religion, or the freedom of the press? Yes, sir, he would advocate resistance in such cases; and so would I, and so would all of us. But such resistance would, according to this doctrine, be revolution; it would be rebellion. According to my opinion, it would be just, legal, and constitutional resistance. The whole difference between us, then, consists in this: the gentleman would make force the only arbiter in all cases of collision between the states and the federal government; I would resort to a peaceful remedy—the interposition of the state to "arrest the progress of the evil," until such times as "a convention (assembled at the call of Congress or two thirds of the states) shall decide to which they mean to give an authority claimed by two of their organs." Sir, I say, with Mr. Jefferson, (whose words I have here borrowed,) that "it is the peculiar wisdom and felicity of our Constitution to have provided this peaceable appeal, where that of other nations" (and I may add that of the gentleman) "is at once to force."
Mr. WEBSTER, in some closing remarks, said a few words on the constitutional argument, which the honorable gentleman (Mr. Hayne) labored to reconstruct.
His argument consists of two propositions, and an inference. His propositions are—
1. That the Constitution is a compact between the states.
2. That a compact between two, with authority reserved to one to interpret its terms, would be a surrender, to that one, of all power whatever.
3. Therefore (such is his inference) the general government does not possess the authority to construe its own powers.
Now, sir, who does not see, without the aid of exposition or detection, the utter confusion of ideas involved in this so elaborate and systematic argument?
The Constitution, it is said, is a compact between states: the states, then, and the states only, are parties to the compact. How comes the general government itself a party? Upon the honorable gentleman's hypothesis, the general government is the result of the compact, the creature of the compact, not one of the parties to it. Yet the argument, as the gentleman has now stated it, makes the government itself one of its own creators. It makes it a party to that compact to which it owes its own existence.
For the purpose of erecting the Constitution on the basis of a compact, the gentleman considers the states as parties to that compact; but as soon as his compact is made, then he chooses to consider the general government, which is the offspring of that compact, not its offspring, but one of its parties; and so, being a party, has not the power of judging on the terms of compact.
If the whole of the gentleman's main proposition were conceded to him—that is to say, if I admit, for the sake of the argument, that the Constitution is a compact between states,—the inferences which he draws from that proposition are warranted by no just reason; because, if the Constitution be a compact between states, still that Constitution, or that compact, has established a government with certain powers; and whether it be one of those powers, that it shall construe and interpret for itself the terms of the compact in doubtful cases, can only be decided by looking to the compact, and inquiring what provisions it contains on this point. Without any inconsistency with natural reason, the government, even thus created, might be trusted with this power of construction. The extent of its powers, therefore, must still be sought for in the instrument itself.
If the old Confederation had contained a clause, declaring that resolutions of the Congress should be the supreme law of the land, any state law or constitution to the contrary notwithstanding, and that a committee of Congress, or any other body created by it, should possess judicial powers, extending to all cases arising under resolutions of Congress, then the power of ultimate decision would have been vested in Congress under the Confederation, although that Confederation was a compact between states; and for this plain reason—that it would have been competent to the states, who alone were parties to the compact, to agree who should decide in cases of dispute arising on the construction of the compact.
For the same reason, sir, if I were now to concede to the gentleman his principal proposition, viz., that the Constitution is a compact between states, the question would still be, what provision is made, in this compact, to settle points of disputed construction, or contested power, that shall come into controversy; and this question would still be answered, and conclusively answered, by the Constitution itself While the gentleman is contending against construction, he himself is setting up the most loose and dangerous construction. The Constitution declares that the laws of Congress shall be the supreme law of the land. No construction is necessary here. It declares, also, with equal plainness and precision, that the judicial power of the United States shall extend to every case arising under the laws of Congress. This needs no construction. Here is a law, then, which is declared to be supreme; and here is a power established which is to interpret that law. Now, sir, how has the gentleman met this? Suppose the Constitution to be a compact; yet here are its terms; and how does the gentleman get rid of them? He cannot argue the seal off the bond, nor the words out of the instrument. Here they are. What answer does he give to them? None in the world, sir, except that the effect of this would be to place the states in a condition of inferiority; and because it results, from the very nature of things, there being no superior, that the parties must be their own judges! Thus closely and cogently does the honorable gentleman reason on the words of the Constitution. The gentleman says, if there be such a power of final decisions in the general government, he asks for the grant of that power. Well, sir, I show him the grant—I turn him to the very words—I show him that the laws of Congress are made supreme, and that the judicial power extends, by express words, to the interpretation of these laws. Instead of answering this, he retreats into the general reflection, that it must result from the nature of things that the states, being the parties, must judge for themselves.
I have admitted, that, if the Constitution were to be considered as the creature of the state governments, it might be modified, interpreted, or construed, according to their pleasure. But, even in that case, it would be necessary that they should agree. One, alone, could not interpret it conclusively; one, alone, could not construe it; one, alone, could not modify it. Yet the gentleman's doctrine is, that Carolina, alone, may construe and interpret that compact which equally binds all, and gives equal rights to all.
So then, sir, even supposing the Constitution to be a compact between the states, the gentleman's doctrine, nevertheless, is not maintainable, because, first, the general government is not a party to that compact, but a government established by it, and vested by it with the powers of trying and deciding doubtful questions; and, secondly, because, if the Constitution be regarded as a compact, not one state only, but all the states, are parties to that compact, and one can have no right to fix upon it her own peculiar construction.
So much, sir, for the argument, even if the premises of the gentleman were granted, or could be proved. But, sir, the gentleman has failed to maintain his leading proposition. He has not shown—it cannot be shown—that the Constitution is a compact between state governments. The Constitution itself, in its very front, refutes that proposition; it declares that it is ordained and established by the people of the United States. So far from saying that it is established by the governments of the several states, it does not even say that it is established by the people of the several states; but it pronounces that it is established by the people of the United States, in the aggregate. The gentleman says, it must mean no more than that the people of the several states, taken collectively, constitute the people of the United States. Be it so; but it is in this their collective capacity, it is as all the people of the United States, that they establish the Constitution. So they declare; and words cannot be plainer than the words used.
When the gentleman says, the Constitution is a compact between the states, he uses language exactly applicable to the old Confederation. He speaks as if he were in Congress before 1789. He describes fully that old state of things then existing. The Confederation was, in strictness, a compact; the states, as states, were parties to it. We had no other general government. But that was found insufficient, and inadequate to the public exigencies. The people were not satisfied with it, and undertook to establish a better. They undertook to form a general government which should stand on a new basis—not a confederacy, not a league, not a compact between states, but a constitution; a popular government, founded in popular election, directly responsible to the people themselves, and divided into branches, with prescribed limits of power, and prescribed duties. They ordained such a government; they gave it the name of a constitution; and therein they established a distribution of powers between this, their general government, and their several state governments. When they shall become dissatisfied with this distribution, they can alter it. Their own power over their own instrument remains. But until they shall alter it, it must stand as their will, and is equally binding on the general government and on the states.
The gentleman, sir, finds analogy where I see none. He likens it to the case of a treaty, in which, there being no common superior, each party must interpret for itself, under its own obligation of good faith. But this is not a treaty, but a constitution of government, with powers to execute itself, and fulfil its duties.
I admit, sir, that this government is a government of checks and balances; that is, the House of Representatives is a check on the Senate;, and the Senate is a check on the House, and the President is a check on both. But I cannot comprehend him—or if I do, I totally differ from him—when he applies the notion of checks and balances to the interference of different governments. He argues that, if we transgress, each state, as a state, has a right to check us. Does he admit the converse of the proposition—that we have a right to check the states? The gentleman's doctrines would give us a strange jumble of authorities and powers, instead of governments of separate and defined powers. It is the part of wisdom, I think, to avoid this; and to keep the general government and the state governments each in its proper sphere—avoiding, as carefully as possible, every kind of interference.
Finally, sir, the honorable gentleman says that the states will only interfere, by their power, to preserve the Constitution. They will not destroy it, they will not impair it—they will only save, they will only preserve, they will only strengthen it! All regulated governments, all free governments, have been broken up by similar disinterested and well-disposed interference!
Mr. EDWARD LIVINGSTON. I think that the Constitution is the result of a compact entered into by the several states, by which they surrendered a part of their sovereignty to the Union, and vested the part so surrendered in a general government.
That this government is partly popular, acting directly on the citizens of the several states; partly federative, depending for its existence and action on the existence and action of the several states.
That, by the institution of this government, the states have unequivocally surrendered every constitutional right of impeding or resisting the execution of any decree or judgment of the Supreme Court, in any case of law or equity between persons or on matters, of whom or on which that court has jurisdiction, even if such decree or judgment should, in the opinion of the states, be unconstitutional.
That, in cases in which a law of the United States may infringe the constitutional right of a state, but which, in its operation, cannot be brought before the Supreme Court, under the terms of the jurisdiction expressly given to it over particular persons or matters, that court is not created the umpire between a state that may deem itself aggrieved and the general government.
That, among the attributes of sovereignty retained by the states, is that of watching over the operations of the general government, and protecting its citizens against their unconstitutional abuse; and that this can be legally done—
First, in the case of an act, in the opinion of the state palpably unconstitutional, but affirmed in the Supreme Court in the legal exercise of its functions;
By remonstrating against it to Congress;
By an address to the people, in their elective functions, to change or instruct their representatives;
By a similar address to the other states, in which they will have a right to declare that they consider the act as unconstitutional, and therefore void;
By proposing amendments to the Constitution in the manner pointed out by that instrument;
And, finally, if the act be intolerably oppressive, and they find the general government persevere in enforcing it, by a resort to the natural right which every people have to resist extreme oppression.
Secondly, if the act be one of the few which, in its operation, cannot be submitted to the Supreme Court, and be one that will, in the opinion of the state, justify the risk of a withdrawal from the Union, that this last extreme remedy may at once be resorted to.
That the right of resistance to the operation of an act of Congress, in the extreme cases above alluded to, is not a right derived from the Constitution, but can be justified only on the supposition that the Constitution has been broken, and the state absolved from its obligation; and that, whenever resorted to, it must be at the risk of all the penalties attached to an unsuccessful resistance to established authority.
That the alleged right of a state to put a veto on the execution of a law of the United States, which such state may declare to be unconstitutional, attended (as, if it exist, it must be) with a correlative obligation, on the part of the general government, to refrain from executing it; and the further alleged obligation, on the part of that government, to submit the question to the states, by proposing amendments, are not given by the Constitution, nor do they grow out of any of the reserved powers.
That the exercise of the powers last mentioned would introduce a feature in our government not expressed in the Constitution; not implied from any right of sovereignty reserved to the states; not suspected to exist, by the friends or enemies of the Constitution, when it was framed or adopted; not warranted by practice or contemporaneous exposition, nor implied by the true construction of the Virginia resolutions in '98.
That the introduction of this feature in our government would totally change its nature, make it inefficient, invite to dissension, and end, at no distant period, in separation; and that, if it had been proposed in the form of an explicit provision in the Constitution, it would have been unanimously rejected, both in the Convention which framed that instrument and in those which adopted it.
That the theory of the federal government being the result of the general will of the people of the United States in their aggregate capacity, and founded in no degree on compact between the states, would tend to the most disastrous practical results; that it would place three fourths of the states at the mercy of one fourth, and lead inevitably to a consolidated government, and finally to monarchy, if the doctrine were generally admitted; and if partially so, and opposed, to civil dissensions.
Mr. WOODBURY. From the very fact of there being two parties in the federal government, it would seem a necessary inference that the agents of each party, on proper occasions, must be allowed, and are required by an official oath, to conform to the Constitution, and to decide on the extent of its provisions, so far as is necessary for the expression of their own views, and for the performance of their own duties. This being, to my mind, the rationale of the case, I look on the express words of the Constitution as conforming to it, by limiting the grant of judicial jurisdiction to the Supreme Court, both by the Constitution and by the acts of Congress, to specify enumerated objects. In the same way, there are limited grants of judicial jurisdiction to state courts, under most of the state constitutions. When cases present themselves within these grants, the judges, whether of the state or United States, must decide, and enforce their decision with such means as are confided to them by the laws and the constitutions. But, when questions arise, not confided to the judiciary of the states, or United States, the officers concerned in those questions must themselves decide them; and, in the end, must pursue such course as their views of the Constitution dictate. In such instances, they have the same authority to make this decision as the Supreme Court itself has in other instances.