Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol I).djvu/382

sented to this doctrine; and it has been, at different times, resisted by the legislatures of several of the states, in the most formal declarations.^[1]

§ 371. But if it were admitted, that the constitution is a compact, the conclusion, that there is no common arbiter, would neither be a necessary, nor natural conclusion from that fact standing alone. To decide upon the point, it would still behove us to examine the very terms of the constitution, and the delegation of powers under it. It would be perfectly competent even for confederated states to agree upon, and delegate authority to construe the compact to a common arbiter. The people of the United States had an unquestionable right to confide this power to the government of the United States, or to any department thereof, if they chose so

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biter. One of the expositions of the doctrine is, that if a single state denies a power to exist under the constitution, that power is [o be deemed defunct, unless three-fourths of the states shall afterwards reinstate that power by an amendment to the constitution.^{[a 1]} What, then, is to be done, where ten states resolve, that a power exists, and one, that it does not exist? See Mr. Vice-President Calhoun's Letter of 28th August, 1832, to Gov. Hamilton.

1. Massachusetts openly opposed it in the resolutions of her legislature of the 12th of February, 1799, and declared, "that the decision of all cases in law and equity arising under the constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people, in the judicial courts of the United States."^{[a 2]} Six other states, at that time, seem to have come to the same result.^{[a 3]} And on other occasions, a larger number have concurred on the same point.^{[a 4]} Similar resolutions have been passed by the legislatures of Delaware and Connecticut in 1831, and by some other states. How is it possible, for a moment, to reconcile the notion, that each state is the supreme judge for itself of the construction of the constitution, with the very first resolution of the convention, which formed the constitution: "Resolved, &c. that a national government ought to be established, consisting of a supreme, legislative, judiciary, and executive?"^{[a 5]}

1. 4 Elliot's Debates, 320, 321.
2. Dane's App. 58.
3. North American Review, October, 1830, p. 500.
4. Dane's App. 67; Id. 52 to 59.
5. Journals of Convention, 83; 4 Elliot's Deb. 49.