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question, whether a particular power be delegated, or not. Such a construction of the powers of the Federal Court, which would raise one of the departments of the general government, above the sovereign parties, who created the Constitution, would enable it in practice to alter at pleasure the relative powers of the states and general government. This most erroneous and dangerous doctrine, in regard to the powers of the Federal Court, has been so ably refuted by Mr. Madison in his report to the Virginia Legislature, in 1800, that the committee avail themselves at once of his argument and authority. Speaking of the rights of the state to interpret the constitution for itself in the last resort he says: that it has been objected that the judicial authority is to be regarded, as the sole expositor of the Constitution; on this objection it might be observed—1st. That there may be instances of usurped power,” (the case of the Tariff is a striking illustration of its truth,) “which the forms of the Constitution could never draw within the control of the judicial department: secondly, that if the decision of the judiciary, be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the constitution before the judiciary, must be equally authoritative and final with the decision of that 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. The resolution supposes, that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise, or sanction dangerous powers beyond the grant of the Constitution, and consequently, that the ultimate right of the parties to the Constitution, to judge, whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another—by the judiciary as well by the Executive, or the Legislature.
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 for ever and beyond the possible reach of any rightful remedy, the very constitution which all were constituted to preserve.”
