A Brief Enquiry into the Nature and Character of our Federal Government/IX

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A Brief Enquiry into the Nature and Character of our Federal Government by Abel P. Upshur
Chapter IX
Chapter breaks are not found in the original; they were added in an 1868 edition. References to "our author" or "the author" refer to Joseph Story, the author of the work being critiqued by Upshur.

We come now to a more particular and detailed examination of the question, "Who is the final judge or interpreter in constitutional [ *80 ] *controversies?" The fourth chapter of this division of the author's work is devoted to this enquiry; and the elaborate examination which he has given to the subject, shows that he attached a just importance to it. The conclusion, however, to which he has arrived, leaves still unsettled the most difficult and contested propositions which belong to this part of the Constitution. His conclusion is, that, "in all questions of a judicial nature," the supreme court of the United States is the final umpire; and that the States, as well as individuals, are absolutely bound by its decisions. His reasoning upon this part of the subject is not new, and does not strike me as being particularly forcible. Without deeming it necessary to follow him in the precise order of his argument, I shall endeavor to meet it in all its parts, in the progress of this examination. Its general outline is this: It is within the proper function of the judiciary to interpret the laws; the Constitution is the supreme law, and therefore it is within the proper function of the judiciary to interpret the Constitution; of course, it is the province of the federal judiciary to interpret the Federal Constitution. And as that Constitution, and all laws made in pursuance thereof, are the supreme law of the land, anything in the laws or constitution of any State to the contrary notwithstanding, therefore, the interpretations of that Constitution, as given by the supreme court, are obligatory, final and conclusive, upon the people and the States.

Before we enter upon this investigation, it is proper to place the proposition to be discussed in terms somewhat more definite and precise than those which the author has employed. What, then, is meant by "final judge and interpreter?" In the ordinary acceptation of these terms, we should understand by them a tribunal having lawful cognizance of a subject, and from whose decisions there is no appeal. In this view of the question there can be no difficulty in admitting that the decisions of the supreme court are final and conclusive. Whatever comes within the legitimate cognizance of that tribunal, it has a right to decide, whether it be a question of the law, or of the Constitution; and no other tribunal can reverse its decision. The Constitution, which creates the supreme court, creates no other court of superior or appellate jurisdiction to it; and, consequently, its decisions are strictly "final." There is no power in the same government to which that court belongs, to reverse or control it, nor are there any means therein of resisting its authority. So far, therefore, as the Federal Constitution has provided for the subject at all, the supreme court is, beyond question, the final judge or arbiter; and this, too, whether the jurisdiction which it exercises be legitimate or usurped.

[ *81 ] *The terms "constitutional controversies" are still more indefinite. Every controversy which is submitted to the decision of a judicial tribunal, whether State or Federal, necessarily involves the constitutionality of the law under which it arises. If the law be not constitutional, the court cannot enforce it, and, of course, the question whether it be constitutional or not, necessarily arises in every case to which the court is asked to apply it. The very act of enforcing a law presupposes that its constitutionality has been determined. In this sense, every court, whether State or federal, is the "judge or arbiter of constitutional controversies," arising in causes before it; and if there be no appeal from its decision, it is the "final" judge or arbiter, in the sense already expressed.

Let us now enquire what "constitutional controversies" the federal courts have authority to decide, and how far its decisions are final and conclusive against all the world.

The third article of the Constitution provides that "The judicial powers shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State, claiming lands, under grants of different States; and between a State and the citizens thereof, and foreign States, citizens or subjects."

The eleventh amendment provides that "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign State."

It will be conceded on all hands that the federal courts have no jurisdiction except what is here conferred. The judiciary, as a part of the federal government, derives its powers only from the Constitution which creates that government. The term "cases" implies that the subject matter shall be proper for judicial decision; and the parties between whom alone jurisdiction can be entertained, are specifically enumerated. Beyond these "cases" and these parties they have no jurisdiction.

There is no part of the Constitution in which the framers of it have displayed a more jealous care of the rights of the States, than in the [ *82 ] *limitations of the judicial power. It is remarkable that no power is conferred except what is absolutely necessary to carry into effect the general design, and accomplish the general object of the States, as independent, confederated States. The federal tribunals cannot take cognizance of any case whatever in which all the States have not an equal and common interest that a just and impartial decision shall be had. A brief analysis of the provisions of the Constitution, will make this sufficiently clear.

Cases "arising under the Constitution" are those in which some right or privilege is denied, which the Constitution confers, or something is done, which the Constitution prohibits, as expressed in the Constitution itself. Those which arise "under the laws of the United States" are such as involve rights or duties, which result from the legislation of congress. Cases of these kinds are simply the carrying out of the compact or agreement made between the States, by the Constitution itself, and, of course, all the States are alike interested in them. For this reason alone, if there were no other, they ought to be entrusted to the common tribunals of all the States. There is another reason, however, equally conclusive. The judicial should always be at least co-extensive with the legislative power; for it would be a strange anomaly, and could produce nothing but disorder and confusion, to confer on a government the power to make a law, without conferring, at the same time, the right to interpret, and the power to enforce it.

Cases arising under treaties, made under the authority of the United States, and those "affecting ambassadors and other public ministers and consuls," could not properly be entrusted to any other than the federal tribunals. Treaties are made under the common authority of all the States, and all, alike, are bound for the faithful observance of them. Ambassadors and other public ministers and consuls are received under the common authority of all the States, and their duties relate only to matters involving alike the interests of all. The peace of the country, and the harmony of its relations with foreign powers, depend, in a peculiar degree, on the good faith with which its duties in reference to these subjects are discharged. Hence it would be unsafe to entrust them to any other than their own control; and even if this were not so, it would be altogether incongruous to appeal to a State tribunal, to enforce the rights, the obligations or the duties of the United States. For like reasons, cases of admiralty and maritime jurisdiction are properly entrusted to the federal tribunals.

Controversies to which the United States shall be a party should, [ *83 ] *upon general principles, belong only to her own courts. There would be neither propriety nor justice in permitting any one State to decide a case in which all the States are parties. In like manner those between two or more States—between a State and citizens of another State, where the State is plaintiff—(it cannot be sued)—and between citizens of different States, could not be entrusted to the tribunals of any particular State interested, or whose citizens are interested therein, without danger of injustice and partiality. Jurisdiction is given to the federal courts, in these cases, simply because they are equally interested for all the parties, are the common courts of all the parties, and therefore are presumed to form the only fair and impartial tribunal between them. The same reasoning applies to cases between citizens of the same State, claiming lands under grants of different States. Cases of this sort involve questions of the sovereign power of the States, and could not, with any show of propriety, be entrusted to the decision of either of them, interested as it would be to sustain its own acts, against those of the sister State. The jurisdiction in this case is given upon the same principles which give it in cases between two or more States.

Controversies between a State or the citizens thereof, and foreign States, citizens or subjects, depend on a different principle, but one equally affecting the common rights and interests of all the States. A foreign State cannot, of course, be sued; she can appear in our courts only as plaintiff. Yet, in whatever form such controversies, or those affecting the citizens of a foreign State, may arise, all the States have a deep interest that an impartial tribunal, satisfactory to the foreign party, should be provided. The denial of justice is a legitimate, and not an unfruitful cause of war. As no State can be involved in war without involving all the rest, they all have a common interest to withdraw from the State tribunals a jurisdiction which may bring them within the danger of that result. All the States are alike bound to render justice to foreign States and their people; and this common responsibility gives them a right to demand that every question involving it shall be decided by their common judicatory.

This brief review of the judicial power of the United States, as given in the Constitution, is not offered as a full analysis of the subject; for the question before us does not render any such analysis necessary. My design has been only to show with what extreme reserve judicial power has been conferred, and with what caution it has been restricted to those cases, only, which the new relation between the States, established by the Constitution, rendered absolutely [ *84 ] *necessary. In all the cases above supposed, the jurisdiction of the federal courts is clear and undoubted; and as the States have, in the frame of the Constitution, agreed to submit to the exercise of this jurisdiction, they are bound to do so, and to compel their people to like submission. But it is to be remarked, that they are bound only by their agreement, and not beyond it. They are under no obligation to submit to the decisions of the supreme 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[supp 1] 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 [ *85 ] *exercise it, without the least reference or responsibility 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 department 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 [ *86 ] *gross and palpable. If the judiciary may determine the 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 decision, 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 [ *87 ] *inquiry; such, for example, as those between two States, those affecting foreign 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 [ *88 ] *necessity judge for itself, by virtue of that inherent, 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. 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, 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?

[ *89 ] *Again. Suppose that congress should enact that all 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 [ *90 ] *decisions. And so in our own systems. There 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.[1]

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 independence. It 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, [ *91 ] *such as are those of the States, a proper corrective is always found in the people themselves. If the judicial interpretation confer too much or too little power on the government, a ready remedy is found in an 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 to reduce her to a situation so helpless and contemptible.[2]

Yielding, therefore, to the supreme court all the [ *92 ] *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.

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 of 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 consequently, that it does not resemble in that respect the constitutions of the States. There is no such analogy between them, as will presently be shown, as to require that they should be construed by the same rules. The Constitution of the United States is to be considered as a compact or confederation between free, independent and sovereign States, and is [ *93 ] *to be construed as such, in all cases where its language is doubtful. This is the leading and fundamental rule, from which the following may be deduced as consequences

It is to be construed strictly. Our author supposes that the Constitution of the United States ought to "receive as favorable a construction as those of the States;" that it is to be liberally construed; that doubtful words are to be taken most strongly in favor of the powers of the federal government; and that there is "no solid objection to implied powers." All these are but inferences from the great rule which he first laid down, to wit, that the Constitution is to be considered as a frame of government, established by the people of the United States. As that rule cannot apply, because the fact on which it is founded is not true, it would seem to follow, as a necessary consequence, that the inferences deduced from it cannot be allowed. Nevertheless, they shall receive a more particular consideration under the present enquiry.

According to the principles of all our institutions, sovereignty does not reside in any government whatever, neither State nor federal. Government is regarded merely as the agent of those who create it, and subject in all respects to their will. In the States, the sovereign power is in the people of the States respectively; and the sovereign power of the United States would, for the same reason, be in "the people of the United States," if there were any such people, known as a single nation, and the framers of the federal government. We have already seen, however, that there are no such people, in a strict political sense, and that no such people had any agency in the formation of our Constitution, but that it was formed by the States, emphatically as such. It would be absurd, according to all principles received and acknowledged among us, to say that the sovereign power is in one party, and the power which creates the government is in another. The true sovereignty of the United States, therefore, is in the States, and not in the people of the United States, nor in the federal government. That government is but the agent through whom a portion of this sovereign power is exerted; possessing no sovereignty itself, and exerting no power, except such only as its constituents have conferred on it. In ascertaining what these powers are, it is obviously proper that we should look only to the grant from which they are derived. The agent can claim nothing for itself, and on its own account. The Constitution is a compact, and the parties to it are each State, with each and every other State. The federal government is not a party, but is the mere creature of the [ *94 ] *agreement between the States as parties. Each State is both grantor and grantee, receiving from each and all the other States precisely what, in its turn, it concedes to each and all of them. The rule, therefore, that the words are to be taken most strongly in favor of the grantee, cannot apply, because, as each State is both grantor and grantee, it would give exactly as much as it would take away. The only mode, therefore, by which we may be certain to do no injustice to the intentions of the parties, is by taking their words as the true exponents of their meaning.

Our author thinks, however, that a more liberal rule ought to be adopted, in construing the Constitution of the United States, because "the grant enures solely and exclusively for the benefit of the grantor himself;" and therefore he supposes that "no one would deny the propriety of giving to the words of the grant a benign and liberal interpretation." Admit that it is so, and it would seem to follow that "the benefit of the grantor" requires that we should take from him as little as possible, and that an "interpretation of the words of the grant" would not be "benign and liberal" as to him, if it deprived him of any more of his rights and powers, than his own words prove that he intended to relinquish. It is evident that this remark of the author proceeds upon the leading idea, that the people of the United States are the only party to the contract; an idea which, we have already seen, can by no means be justified or allowed. The States are parties; each agreeing with each, and all the rest, that it will exercise, through a common agent, precisely so much of its sovereign rights and powers, as will, in its own opinion, be beneficial to itself, when so exercised. The grant "enures to the sole and exclusive benefit of the grantor;" and who but the grantor himself shall determine what benefit he had in view, and how far the grant shall extend, in order to secure it? This he has done, in the case before us, by the very terms of the grant. If you hold him bound by any thing beyond those terms, you enable others to decide this matter for him, and may thus virtually abrogate his contract, and substitute another in its place.

I certainly do not mean to say, that in construing the Constitution, we should at all times confine ourselves to its strict letter. This would, indeed, be sticking in the bark, to the worst possible purpose. Many powers are granted by that instrument, which are not included within its express terms, literally taken, but which are, nevertheless, within their obvious meaning. The strict construction for which I contend, applies to the intention of the framers of the Constitution; and this may or may not require a strict construction of their words.

[ *95 ] *There is no fair analogy as to this matter between the Federal Constitution and those of the States, although the author broadly asserts that they are not "distinguishable in this respect;" and this will sufficiently appear from the following considerations:

1. The entire sovereignty of each State is in the people thereof. When they form for themselves a constitution of government, they part with no portion of their sovereignty, but merely determine what portion thereof shall lie dormant, what portion they will exercise, and in what modes and by what agencies they will exercise it. There is but one party to such a government, to wit, the people of the State. Whatever power their government may possess, it is still the power of the people; and their sovereignty remains the same. So far, therefore, there is "no solid objection to implied powers" in a State constitution; because, by employing power in the government, you take no power from those who made the government.

2. As government is the agent and representative of the sovereign power of the people, the presumption is, that they intend to make it the agent and representative of all their power. In every frame of limited government, the people deny to themselves the exercise of some portion of their rights and powers, but the larger portion never lies thus dormant, In this case, therefore, (viz.: of a government established by an aggregate people,) the question naturally is, not what powers are granted, but what are denied; and the rule of strict construction, if applied at all, should be applied only to the powers denied. This would have the effect of enlarging the powers of government, by limiting the restraints imposed on it.

3. As it is fair to presume that a people absolutely sovereign, and having an unlimited right to govern themselves as they please, would not deny to themselves the exercise of any power necessary to their prosperity and happiness, we should admit all fair and reasonable implications in favor of the government, because, otherwise, some power necessary to the public weal, might be dormant and useless.

In these respects, there is no just analogy between the State constitutions and that of the United States.

In the first place, the Constitution of the United States is not a frame of government to which there is but one party. The States are parties, each stipulating and agreeing with each and all the rest. Their agreement is, that a certain portion of that power which each is authorized to exercise within its own limits shall be exercised by their common agent, within the limits of all of them. This is not the separate power of each, but the joint power of all. In proportion, [ *96 ] *therefore, as you increase the powers of the federal government, you necessarily detract from the separate powers of the States. We are not to presume that a sovereign people mean to surrender any of their powers; still less should we presume that they mean to surrender them, to be exerted over themselves, by a different sovereignty. In this respect, then, every reasonable implication is against the federal government.

In the second place, the Constitution of the United States is not the primary social relation of those who formed it. The State governments were already organized, and were adequate to all the purposes of their municipal concerns. The federal government was established only for such purposes as the State government could not answer, to wit, the common purposes of all the States."Whether, therefore, the powers of that government be greater or less, the whole power of the States, (or so much thereof as they design to exercise at all,) is represented, either in the federal government or in their own. In this respect, therefore, there is no necessity to imply power in the federal government.

In the third place, whatever power the States have not delegated to the federal government, they have reserved to themselves. Every useful faculty of government is found either in the one or the other. Whatever the federal government cannot do for all the States, each State can do for itself, subject only to the restraints of its own constitution. No power, therefore, is dormant and useless, except so far only as the States voluntarily decline to exert it. In this respect, also, there is no necessity to imply power in the federal government.

In all these particulars the Federal Constitution is clearly "distinguishable from the constitutions of the State governments." The views just presented support this obvious distinction, that in the State constitutions every power is granted which is not denied; in the Federal Constitution, every power is denied which is not granted. There are yet other views of the subject, which lead us to the same conclusion.

The objects for which the federal government was established, are by no means equal in importance to those of the State constitutions. It is difficult to imagine any necessity for a federal government at all, except what springs from the relations of the States to foreign nations. A union among them is undoubtedly valuable for many purposes. It renders them stronger and more able to resist their enemies; it attracts to them the respect of other countries, and gives them advantages in the formation of foreign connexions; it facilitates all the operations [ *97 ] *of war, of commerce, and of foreign diplomacy. But these objects, although highly important, are not so important as those great rights which are secured to us by the State constitutions. The States might singly protect themselves; singly form their foreign connexions, and singly regulate their commerce; not so effectually, it is true, but effectually enough to afford reasonable security to their independence and general prosperity. In addition to all this, we rely exclusively on the State governments for the security of the great rights of life, liberty and property. All the valuable and interesting relations of the social state spring from them. They give validity to the marriage tie; they prescribe the limits of parental authority; they enforce filial duty and obedience; they limit the power of the master, and exact the proper duties of the servant. Their power pervades all the ranks of society, restraining the strong, protecting the weak, succoring the poor, and lifting up the fallen and helpless. They secure to all persons an impartial administration of public justice. In all the daily business of life, we act under the protection and guidance of the State governments. They regulate and secure our rights of property; they enforce our contracts and preside over the peace and safety of our firesides. There is nothing dear to our feelings or valuable in our social condition, for which we are not indebted to their protecting and benignant action. Take away the federal government altogether, and still we are free, our rights are still protected, our business is still regulated, and we still enjoy all the other advantages and blessings of established and well organized government. But if you take away the State governments, what have you left? A federal government, which can neither regulate your industry, secure your property, nor protect your person! Surely there can be no just reason for stealing, by liberal constructions and implications, from these beneficent State governments, any portion of their power, in order to confer it on another government, which, from its very organization, cannot possibly exert it for equally useful purposes. A strict construction of the Constitution will give to the federal government all the power which it can beneficially exert, all that it is necessary for it to possess, and all that its framers ever designed to confer on it.

To these views of the subject we may add, that there is a natural and necessary tendency in the federal government to encroach on the rights and powers of the States. As the representative of all the States, it affords, in its organization, an opportunity for those combinations by which a majority of the States may oppress the minority, against the spirit or even the letter of the Constitution. There is no [ *98 ] *danger that the federal government will ever be too weak. Its means of aggrandizing itself are so numerous, and its temptations to do so are so strong, that there is not the least necessity to imply any new power in its favor. The States, on the contrary, have no motive to encroach on the federal government, and no power to do so, even if they desired it. In order, therefore, to preserve the just balance between them, we should incline, in every doubtful case, in favor of the States; confident that the federal government has always the inclination, and always the means, to maintain itself in all its just powers.

The Constitution itself suggests that it should be strictly and not liberally construed. The tenth amendment provides, that "the powers not delegated to the United States, nor prohibited to the States, by the Constitution, are reserved to the States or the people." There was a corresponding provision in the articles of confederation, which doubtless suggested this amendment. It was considered necessary, in order to prevent that latitude of construction which was contended for by one of the great political parties of the country, and much dreaded and strenuously opposed by the other. In the articles of confederation all "rights, jurisdictions and powers" are reserved, except only such as are expressly delegated; but in the Constitution, the word "expressly" is omitted. Our author infers from this fact, that it was the intention of the framers of the tenth amendment to leave "the question, whether the particular power which is the subject of contest has been delegated to one government or prohibited to the other, to depend upon a fair construction of the whole instrument;" doubtless intending by the word "fair," a construction as liberal as would be applied to any other frame of government. This argument is much relied on, and is certainly not without plausibility, but it loses all its force, if the omission can be otherwise satisfactorily accounted for. The Constitution provides that congress shall have power to pass all laws which shall be necessary and proper for carrying into effect the various powers which it grants. If this clause confers no additional faculty of any sort, it is wholly useless and out of place; the fact that it is found in the Constitution is sufficient proof that some effect was intended to be given to it. It was contemplated that, in executing the powers expressly granted, it might be necessary to exert some power not enumerated, and as to which some doubt might, for that reason, be entertained. For example, the power to provide a navy is not, in itself, the power to build a dry dock; but, as dry docks are necessary and proper means for providing a navy, congress shall have power to authorize the construction of them. But if [ *99 ] *the word "expressly" had been used in the tenth amendment, it would have created a very rational and strong doubt of this. There would have been, at least, an apparent repugnance between the two provisions of the Constitution; not a real one, I admit, but still sufficiently probable to give rise to embarrassing doubts and disputes. Hence the necessity of omitting the word "expressly," in the tenth amendment. It left free from doubt and unaffected the power of congress to provide the necessary and proper means of executing the granted powers, while it denied to the federal government every power which was not granted. The same result was doubtless expected from this amendment of the Constitution, which was expected from the corresponding provision in the articles of confederation; and the difference in the terms employed is but the necessary consequence of the difference in other provisions of the two systems.

Strictly speaking, then, the Constitution allows no implication in favor of the federal government, in any case whatever. Every power which it can properly exert is a granted power. All these are enumerated in the Constitution, and nothing can be constitutionally done, beyond that enumeration, unless it be done as a means of executing some one of the enumerated powers. These means are granted, not implied; they are given as the necessary incidents of the power itself, or, more properly speaking, as component parts of it, because the power would be imperfect, nugatory and useless, without them. It is true, that in regard to these incidental powers, some discretion must, of necessity, be left with the government. But there is at the same time, a peculiar necessity that a strict construction should be applied to them; because that is the precise point at which the government is most apt to encroach. Without some strict, definite and fixed rules upon the subject, it would be left under no restraint, except what is imposed by its own wisdom, integrity and good faith. In proportion as a power is liable to be abused, should we increase and strengthen the checks upon it. And this brings us to the enquiry, what are these incidental powers, and by what rules are they to be ascertained and defined?

The only source from which these incidental powers are derived is that clause of the Constitution which confers on congress the power "to make all laws which are necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." The true character of this clause cannot be better given than in the words of the author himself: "It neither [ *100 ] *enlarges any power specifically granted, nor is it a grant of any new power to congress. But it is merely a declaration, for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant." His general reasoning upon the subject is very lucid, and, to a certain extent, correct and convincing. He contends that the word "necessary" is not to be taken in its restricted sense, as importing absolute and indispensable necessity, but is to be understood in the sense of "convenient," "useful," "requisite;" as being such that, without them, "the grant would be nugatory." The dangerous latitude implied by this construction, he thinks sufficiently restrained by the additional word "proper," which implies that the means shall be "constitutional and bona fide appropriate to the end." In all this he is undoubtedly correct; but the conclusion which he draws from it, cannot be so readily admitted. "If," says he, "there be any general principle which is inherent in the very definition of government, and essential to every step of the progress to be made by that of the United States, it is that every power vested in the government is, in its nature, sovereign, and includes, by force of the term, a right to employ all the means requisite, and fairly applicable to the attainment of the end of such power, unless they are excepted in the Constitution, or are immoral, or are contrary to the essential objects of political society." This is by no means a legitimate conclusion from his own fair and forcible reasoning. The doctrine here is, in effect, that the federal government is absolutely unrestricted in the selection and use of the means of executing its own powers, except only so far as those means are excepted in the Constitution. Whether or not they are "requisite," "fairly applicable to the attainment of the end of such power," "immoral or contrary to the essential objects of political society," all these are questions which the government alone can decide, and, of course, as their own judgment and discretion are their only rule, they are under no sort of limitation or control in these respects. The standards of political morality, of public convenience and necessity, and of conformity to the essential objects of society, are quite too fluctuating and indeterminate to be relied on, by a free people, as checks upon the power of their rulers. The only real restriction, then, which the author proposes in the above passage, is that which may be found in the fact, that the proposed means are "excepted" in the Constitution; and this is directly contrary to the letter and spirit of that instrument. The federal government possesses no power which is not "delegated;" "the powers not delegated to the United States by the Constitution, nor prohibited by [ *101 ] *it to the States, are reserved to the States respectively, or to the people." The author's idea is, that every thing is granted which is not excepted; whereas, the language of the tenth amendment is express, that every thing is excepted which is not granted. If the word "excepted" is to be understood in this sense, the author's idea is correct; but this does not accord with the general scope of his opinions and reasoning. He approaches much nearer to the true rule in the following passage. "Let the end be legitimate; let it be within the scope of the Constitution; and all means which are appropriate, which are plainly adapted to the end, and which are not prohibited, but are consistent with the letter and spirit of the instrument, are constitutional." The words in italics, are all important in the matter, and give to the passage a meaning wholly different from that of the passage first quoted.

The author's error is equally great, and far more dangerous, in supposing that the means of executing its powers are conferred on the government. The general proposition is true, as he has stated it; but it is not true in the application which he has made of it to our government. He regards the tenth amendment as altogether unnecessary, and tells us, in express terms, that the powers of the government would be exactly the same with or without it. This is a great and obvious mistake. The tenth amendment was wisely incorporated into the Constitution, for the express purpose of denying to the government that unbounded discretion, in the selection and use of its means, for which he contends. The power to make all laws necessary and proper for carrying into effect the granted powers is conferred on congress alone; it is exclusively a legislative power. So far, therefore, as the government is concerned, it derives no power from this clause; and the same is true of its several departments. They have no discretion in the selection of any incidental means of executing their several trusts. If they need the use of such means, they must apply to congress to furnish them; and it is discretionary with that body, whether to furnish them or not. All this is perfectly clear from the very language of the Constitution, and the propriety of such a provision must be apparent to every one. If power could be implied in favor of such a government as ours, it would, if nothing were said to the contrary, be implied in favor of every department and officer thereof, to the execution of whose duties it might seem to be necessary. This would be a wide extent of discretion, indeed; so wide, that it would render all the limitations of the Constitution nugatory and useless. It is precisely this result which was intended to be [ *102 ] *prevented by the clause in question. The States were unwilling to entrust such a discretion either to the government, or to the several departments or officers thereof. They were willing to confer it on congress alone; on the legislative department, the more immediate representatives of the States and their people, who would be most apt to discharge the trust properly, because they had the least temptation to abuse it. It is not true, then, as our author supposes, or, at least, it is not true of our system, that "every power in the government is, in its nature, sovereign, and includes, by force of the term, a right to employ all the means requisite, and fairly applicable to the attainment of the ends of such power, unless they are excepted in the Constitution, or forbidden by some consideration of public morals, or by their unsuitableness to the proper objects of government." In our government, the means are at the disposal of one department only, which may either grant or withhold them at its pleasure.

What, then, are the proper limitations of the power of congress in this respect? This has always heen a subject of great difficulty, and of marked difference of opinion, among politicians. I cannot hope that I shall be able perfectly to disembarrass it; but I think, nevertheless, that there are a few plain rules, the propriety of which all will admit, and which may materially aid us in the formation of a sound opinion upon the subject.

In the first place, then, it is to be observed that congress has no power under this clause of the Constitution, except to provide the means of executing the granted powers. It is not enough that the means adopted are sufficient to that end; they must be adopted bona fide, with a view to accomplish it. Congress have no right to use for the accomplishment of one purpose, means ostensibly provided for another. To do so would be a positive fraud, and a manifest usurpation; for, if the purpose be lawful, it may be accomplished by its own appropriate means, and if it be unlawful, it should not be accomplished at all. It is quite obvious that, without this check, congress may, by indirection, accomplish almost any forbidden object; for among the great variety of means adapted to carry out the granted powers, some may be found equally calculated to effect, either by their direct, or their indirect action, purposes of a wholly different character and tendency. It is, therefore, of the utmost importance to the preservation of the true principles of the Constitution, that strict faith should be kept upon this point.

In the second place, the means provided must not only be "necessary," but they must also be "proper." If the word "necessary" [ *103 ] *stood alone, it would be susceptible of a very extended meaning, and would probably be considered as embracing powers which it never was in the contemplation of the framers of the Constitution to grant. It was necessary, then, to limit and restrain it by some other word, and the word "proper" was very happily selected. This word requires that the means selected shall be strictly constitutional. In ascertaining this, we must have regard not only to the express provisions of the Constitution, but also to the general nature and character of our institutions. Ours is a free government, which implies that it is also an equal government; it therefore authorizes the employment of no means for the execution of its powers, except such as are consistent with the spirit of liberty and equality. Ours is a confederated government; it therefore authorizes no means which are inconsistent with the distinct sovereignty of the States, the confederating powers. Ours is a government of "delegated" powers, limited and specifically enumerated; it therefore authorizes no means which involve, in the use of them, any distinct substantive power, not granted. This single rule, if fairly and honestly observed, will go far to remove many serious difficulties upon this point, and will deprive the federal government of many important powers which it has hitherto exercised, and which are still claimed for it, by our author, and the whole political school to which he belongs. The propriety, and, indeed, the absolute necessity of the rule, appear to me to be obvious. If powers not granted might be used as means of executing the granted powers, it is manifest that no power whatever could be considered as denied. It is not enough that there is no apparent unconstitutionality in the use of such means, in the particular case. If they involve a principle which will authorize the use of ungranted powers in any other case, they are forbidden by the Constitution. To illustrate this idea by an example. Congress has power to regulate commerce among the several States. This is supposed by some to give them power to open channels of commerce, by making roads, cutting canals, &c., through the territories of the States. But this is a substantive power in itself, not granted to the United States, but reserved to the States respectively, and therefore is not allowed as a means of regulating commerce among the States. Let us suppose, however, that the opening of roads and cutting of canals are the very best means of facilitating and regulating commerce among the States, and that there is nothing in the language of the Constitution to forbid it; we are still to enquire what farther powers would be necessarily implied, as incidents of this. We find that the power to open a road though a [ *104 ] *State, implies the power to keep it in repair; to impose fines and penalties on those who injure it, and, consequently, to enforce those fines and penalties by the exercise of a jurisdiction over it. We find also, that the power to make such a road, implies the power to locate it; and, as there is nothing to control the discretion of congress in this respect, there is nothing to forbid them to locate their road, upon the bed of a State canal, or along the whole course of a State turnpike. The effect of this would be to transfer to the United States, against the consent of the State, and without compensation, improvements made by the State within her own territory and at her own expense. Nay, the supremacy claimed for the powers of congress in this respect would, upon the same principle, authorize them to run a road through the centre of a State capitol, or to cover half her territory with roads and canals, over which the State could exert neither jurisdiction nor control. The improvements of individuals too, and of corporate bodies made under the authority of State laws, would thus be held at the mercy of the United States. When we see, then, that this means of regulating commerce among the States would necessarily imply these vast and forbidden powers, we should unhesitatingly reject them as unconstitutional. This single instance, given by way of example and illustration, presents a rule which, if strictly adhered to in all analogous cases, would go far to remove the difficulties, and to prevent the contests, which so often arise on this part of the Constitution.

These few simple rules are, in their nature, technical, and may at all times be easily applied, if congress will observe good faith in the exercise of its powers. There is another of a more enlarged and liberal character, which the word "proper" suggests, and which, if applied with sound judgment, perfect integrity and impartial justice, will render all others comparatively unnecessary. It exacts of congress an extended and fair view of the relations of all the States, and a strictly impartial regard to their respective rights and interests. Although the direct action of a granted power, by the means also granted in the Constitution, may be both unequal and unjust, those means would, nevertheless, be perfectly constitutional. Such injustice and inequality would be but the necessary consequence of that imperfection, which characterizes every human institution, and to which those who undertake to prescribe specific rules to themselves, are bound to submit. But when congress are called on to provide new means of executing a granted power, none are "proper," and therefore none are constitutional which operate unequally and unjustly, [ *105 ] *among the States or the people. It is true that perfect and exact equality in this respect is not to be expected; but a near approach to it will always be made, by a wise and fair legislation. Great and obvious injustice and inequality may at all times be avoided. No "means" which involve these consequences can possibly be considered "proper," either in a moral, or in a constitutional sense. It requires no high intellectual faculty to apply this rule; simple integrity is all that is required.

I have not thought it necessary to follow the author through his extended examination of what he terms the incidental powers of congress, arising under the clause of the Constitution we are examining. It would be indeed an endless task to do so; for I am unable to perceive that he proposes any limit to them at all. Indeed, he tells us in so many words, that "upon the whole, the result of the most careful examination of this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of congress, or impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the national government." This is, indeed, a sweep of authority, boundless and unrestricted. The "best judgment" of congress is the only limit proposed to its powers, whilst there is nothing to control that judgment, nor to correct its errors. Government is abandoned emphatically to its own discretion; for even if a corrective be supposed to exist with the people, that corrective can never be applied in behalf of an oppressed minority. Are the rules which I have proposed indeed nothing? Is no effect whatever to be given to this word "proper," in this clause of the Constitution? Can the author possibly be right in supposing that the Constitution would be the same without it as with it; and that the only object of inserting it was "the desire to remove all possible doubt respecting the right to legislate on that vast mass of incidental powers which must be involved in the Constitution, if that instrument be not a splendid pageant, or a delusive phantom of sovereignty?" It was, indeed, the object of the framers of the Constitution "to remove all possible doubt" from this subject. They desired neither a splendid pageant nor a splendid government. They knew that without this restriction ours would be both; and as powerful as splendid. They did not design that any power with which they thought proper to clothe it should be inoperative, for want of means to carry it into execution; but they never designed to give it the boundless field of its own mere will, for the selection of those means. Having specifically enumerated its powers, as far as was practicable, [ *106 ] *they never designed to involve themselves in the absurdity of removing, by a single clause, every restriction which they had previously imposed. They meant to assure their agent that, while none of the powers with which they had thought proper to clothe it should be nugatory, none of them should be executed by any means which were not both "necessary" and "proper."

The lovers of a strong consolidated government have labored strenuously, and I fear with too much success, to remove every available restriction upon the powers of congress. The tendency of their principles is to establish that legislative omnipotence which is the fundamental principle of the British Constitution, and which renders every form of written constitution idle and useless. They suffer themselves to be too much attracted by the splendors of a great central power. Dazzled by these splendors, they lose sight of the more useful, yet less ostentatious purposes of the State governments, and seem to be unconscious that, in building up this huge temple of federal power, they necessarily destroy those less pretending structures from which alone they derive shelter, protection and safety. This is the ignis fatuus which has so often deceived nations, and betrayed them into the slough of despotism. On all such, the impressive warning of Patrick Henry, drawn from the lessons of all experience, would be utterly lost. "Those nations who have gone in search of grandeur, power and splendor, have also fallen a sacrifice and been the victims of their own folly. While they acquired those visionary blessings, they lost their freedom." The consolidationists forget these wholesome truths, in their eagerness to invest the federal government with every power which is necessary to realize their visions in a great and splendid nation. Hence they do not discriminate between the several classes of federal powers, but contend for all of them, with the same blind and devoted zeal. It is remarkable that, in the exercise of all those functions of the federal government which concern our foreign relations, scarcely a case can be supposed, requiring the aid of any implied or incidental power, as to which any serious doubt can arise. The powers of that government, as to all such matters, are so distinctly and plainly pointed out in the very letter of the Constitution, and they are so ample for all the purposes contemplated, that it is only necessary to understand them according to their plain meaning, and to exercise them according to their acknowledged extent. No auxiliaries are required; the government has only to go on in the execution of its trusts, with powers at once ample and unquestioned. It is only in matters which concern our domestic policy, that any serious [ *107 ] *struggle for federal power has ever arisen, or is likely to arise. Here, that love of splendor and display, which deludes so large a portion of mankind, unites with that self-interest by which all mankind are swayed, in aggrandizing the federal government, and adding to its powers. He who thinks it better to belong to a splendid and showy government, than to a free and happy one, naturally seeks to surround all our institutions with a gaudy pageantry, which belongs only to aristocratic or monarchical systems. But the great struggle is for those various and extended powers, from the exercise of which avarice may expect its gratifications. Hence the desire for a profuse expenditure of public money, and hence the thousand schemes under the name of internal improvements, by means of which hungry contractors may plunder the public treasury, and wily speculators prey upon the less skilful and cunning. And hence, too, another sort of legislation, the most vicious of the whole, which, professing a fair and legitimate object of public good, looks, really, only to the promotion of private interests. It is thus that classes are united in supporting the powers of government, and an interest is created strong enough to carry all measures, and sustain all abuses.

Let it be borne in mind that, as to all these subjects of domestic concern, there is no absolute necessity that the federal government should possess any power at all. They are all such as the State governments are perfectly competent to manage; and the most competent, because each State is the best judge of what is useful or necessary to itself. There is, then, no room to complain of any want of power to do whatever the interests of the people require to be done. This is the topic upon which our author has lavishly expended his strength. Looking upon government as a machine contrived only for the public good, he thinks it strange that it should not be supposed to possess all the faculties calculated to answer the purposes of its creation. And surely it would be strange, if it were, indeed, so defectively constructed. But the author seems to forget that in our system the federal government stands not alone. That is but a part of the machine; complete in itself, certainly, and perfectly competent, without borrowing aid from any other source, to work out its own part of the general result. But it is not competent to work out the whole result. The State governments have also their part to perform, and the two together make the perfect work. Here, then, are all the powers which it is necessary that government should possess; not lodged in one place, but distributed; not the power of the State governments, nor of the federal government, but the aggregate of their several and [ *108 ] *respective powers. In the exercise of those functions which the State governments are forbidden to exercise, the federal government need not look beyond the letter of its charter for any needful power; and in the exercise of any other function, there is still less necessity that it should do so; because, whatever power that government does not plainly possess, is plainly possessed by the State governments. I speak, of course, of such powers only as may be exercised either by the one or the other, and not of such as are denied to both. I mean only to say, that so far as the States and the people have entrusted power to government at all, they have done so in language plain and full enough to render all implication unnecessary. Let the federal government exercise only such power as plainly belongs to it, rejecting all such as is even doubtful, and it will be found that our system will work out all the useful ends of government, harmoniously and without contest, and without dispute, and without usurpation.

Notes in the original

  1. Hunter and Martin, Cohen vs. State of Virginia, and other cases.
  2. 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 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 argumeut, that they may be otherwise.

Supplemental notes

  1. Upshur here refers to the 10th amendment to the Constitution, which is the 12th article of the Bill of Rights. (Wikisource contributor note)