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Construction construed, and constitutions vindicated online

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WouM tesult from its absence. This ai^raent would be suflb-
eiently answered by asking for the words in the constitution,
1^ wMdi one spha'e of action is made subordinate to another;
^r by which one is invested with^e exclusive authority to
I'^strain the rest witiiin thieir proper spheres. But it ovei^
throws ftself by its own force, and by proving too much, proves
BOthii^. It implies, that every division, balance, restriction
0^ check of power by power, which has be6n or can be invented^
must be ii^rong; and that subordination is prefers^le to thom
all : that Mr. Hamiltoh is wrong in observing til»t ^* power
^eontrouled or abridged is almost always the rival and enemy
•• 6f that power by which it is eontrouled and abridged," and
dught to have pk^ed in favour of removing all restrictions by
«upremacy, for the ^sJceof establi^ing subordination ; and thtft
he Wt^ stiH more wrong in supposing, that power could only
be eontrouled by power. It is not uhcommon to destroy the
highest attainable temporal Mesaugs, by selecting and dii^ay-
ing the imperfections of which all human institutions partici-
pate. Thu§ the inconveniences of co-ordinate and balanced,
departments, and the conveniences of subordMmtion areboflu



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nagmfied. Indhidual sphered or departments are easily p^«
suaded, like kings, that a subordination to themselves would
be better for a nation, than the occasional collisions produced
bj a division and limitation of power. The federal and state
governments might both be induced to beUeve, tiiat its own
supervising supremacy over the other would produce m<N:% good
to the p^c^le, than the plan adopted by the people themselves.
And thus an object of the first necessity or convenience, that
of a free, moderate and limited form of government, m^ht b^
sacrificed for such pitiful objects, called objects of necessity
or convenience, as transmitting the puUick money by banksi
staying judgments and executions, making a road or a canak
creating fraudulent corporations, and absolving their great
wealth from taxation, whilst very poor people are contributing
to tiie support of government. Usurpation begins with weav-
ing a shroud for free principles by the woof and warp of little
conveniences and pretended necessities, and ends by inflicting
the slavish quietism of a perfect subordination.

The court has cautiously forborne to define the origin, or the
extent of spherical sovereignty. By denying the argument of
the counsel, ** That the people had bestowed sovereignty on the
** state governments, and therefore had none left to bestow on
** the feder^ government," it clearly asserts, that the peojde
do not lose their sovereignty by creat^g a government. By
contending that the federal government, created in virtue of
their retained and inherent sovereignty, has acquired any
species of sovereignty, it as clearly asserts, that they do lose it.
By asserting, that our political spheres are limited by their con->
stitutional spheres of action, it admits, that they are not invest-
ed with sovereignty. By investing them with the right of
creating corporati<ms, as resulting from the power appertaining^
to sovereignty, it declares that they are. This sample of its
appurtenances, and the general position that it may emj4oy any
means which, it chooses, or may think necessary or convenient,
leaves the capacity of the new political structure called sphe*
ricid sovereignty, quite indefinite. I have heard of a lady
desirous of having a new house, and unable to prevail on her
husband to build it, who persuaded him at length to sufier h^
to repair the old one. With the help of an ingenious carpenter,
under her own influence and direction, she went to work; and



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pfocee^fing bj' emitieus degrees^ not to twakeo her hisband^
attention, so altered and enclosed the old one, timt when he at
bist discovered the lu^ifice, he found himself obliged to poll it
down and throw it piece by piece out of the windows. Thus
the indefinite attributes of a sovereignty of spheres, will gra-
dually usurp and supplant the attributes of the sovereignty of
the people. The dd priiiciple of limited ends will be thrown
out of the window by the new principle of unlimited means;
and the rig^t of the old sovereignty to create bodies politick,
will be swallowed up by a new spherical sovereignty.

Oi this sophistical sphericid sovereignty, the instances
abound ; and we find it in every case to be the identical ma-
chine, by which all free and limited governments have been
overthrown. The conventions of France (elected to form a
constituUon) upon the ground of representing the people, as-
sumed a sph^cal soy^e^nty with its attributes as settled by
themselves ; and exercised unlimited power, under a nominal
acknowledgment of the sovereignty of the pec^le. Bonaparte*
both in his Bfhere of consul and emperor, took their votes, and
thus owned the sovereignty of the people. But what was the
vahie of the allegiance professed in either case, united with a
choice of means, necessities, and convenieopes, by these sphe-
rical sovereignties P The same as that of the divine right of
sovereignty in kings, nobles and political sj^eres, from the be^
ginning of history to this day.

The reader is reminded, that idthough I have adopted the
phrase *' spherical sovereignty^' and supposed its eustence,
with a hope of proving that even this concession does not war*
rant the judgment of the court; yet I do not thereby design
to admit of its application, under any definition, to our system
of government; because its meaning is so utterly equivocal, as
to be innately incongruous with the idea of limited powers,
of which this system is composed. I contend that the idea
of one or many spherical sovereignties is an adulterati<m of
the sovereignty of the people ; that a limitation of spheres of
action, is a limitation of means of action ; that no sphere cati
do any thmg, because it may be convenient or necessary, un-
less it be constitutional ; that no sphere can invade another by
n^eaus however beneficifil, because it would be unconstitutional ;



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that no $jfimtt htta power of doing what is good w bad, gOft«»
ttilf, but con^tutionally onl j ; and that if these jj^rinciples can
be overtarned bj an iBgenious mani^ment of words, aH oof
checks, balaaceSt Umitatioiis and dinsums of power, act good
for nothing.



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SBCmON 9.

THE BANK DECIBION.-SUPBSMACT.



''Thepei^e htve Mid, ^Thb eonf£i#iie&m and the lawsof tiie
^ United Statea made in pursuance Vaereei, shall be the si^^reme
^ law of the land." '' It is a question of supremacy J^ <* It is
^' of die very essence of supremac j to remoTe all obstacles to
^ its action within its own sphere, and so to modify efsery power
** vested in subordinate govemmente, as to exempt its own
<» operaHonsfrom their influence?^

^* It is a question of sapremacj.'^ This expression, beii^
unequivocal, had it remained unmodified, would have submit-
ted to the publick conrideration the ]dain question ; whether
the constituticm of the union had, or had not, invested the fede-
ral government with a supreme power over the state govern*
ments. National questions ought to be candidly and fairlj
stated, to obtain a genuine national o|nnioH. Out of complai-
sance to national opinion it was conceded bj the court, that
both the federal and state governments were sovereign within
their respective spheres, to obtain as an attribute of sovereignty^
a mutual right of creating corporations, and concOiate the
nsurpatimi practised bj both. But, after allowing to both this
attribute of sovereignty, a variety of equivocations are resorted
to, for inhilnting to the states its other attributes, and assign-
sig their exclusive enjoyment to the federal government T%e
means, the necessities, and the conveniences of the federal go-
▼emment as attributes of sovereignty are dilated, and those of
the state governments consigned to oblivion* The federal go«
iremment is acknowledged to be limited | but then it is said,
that th«re is no phrase in the constitution which excludes inci«
4entd OF implied powers, without admitting, that no enlai^ge-
iBeQt of power can be inferred from this assertion in favour tf
. the federid sovereignty, in which the state sovereignties would
WA partidpate« Xt is conceded, that the poirar of internal



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taxation is not abridged with respect to the states, by the grant
of a similar power to the government of the union, and that it
is to be exercised concurrently by the two govemments ; but
the concession is retracted, by inferring from the constitutional
abridgment in the subjects of imports and exports, a right in
the federal government still farther to abridge the concurrent
right of the states to an unspecified extent It is said that the
power of the states is subordinate to, and may be controuled by
the constitution of the United States ; but then it is inferred,
that it is also subordinate to and may be controuled by the fe-
deral government. But, as this alternation between concession
and retraction was liable to formidable objections, it is finally
abandoned, or shielded against confutation, by the assertion
** that it is a question of supremacy, and that it is of the very
" essence of supremacy to remove all obstacles to its action
<< within its own sphere, and so to modify every power vested
** in subordinate governments^ as to exempt its own operations
*' from their influence.^ The sweeping power asserted in the
conclusion of this extract, is obviously distinct from a power
of removing obstacles within its own sphere^ previously asser*
ted ; and is another instance, in which unlimited power is
attempted to be inferred from a power acknowledged to be
limited. Thus the wisdom of concession and the ingenuitj
of retraction are so constantly blended, as finally to invest a
government acknowledged to be limited, with an unlimited
power over the very restrictions imposed upon itself; and also
over the state governments, acknowledged also to be its co-
sovereigns. To fortify this mode of reasoning, it became even
necessary to find a higher power than sovereignty, in order to
eontroul the admitted sovereignty of spheres ; and though hi- •
therto thought not to exist, it is supposed to be found in the
words " paramount and supreme'' so sublimated, as to reduce
the sovereignty both of the state spheres and of the people
to mere glow worms.

The declaration of independence declares the colonies to
be free and independent states ; the constitutions of many
states assert the sovereignty of the people; uid sovereignly
has hitherto been considered as the highest political degree.
In that sense it has been claimed, held and exercised by the
peoj^e of every state in the union from the revolution to this



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121

Akj. The attempt made by the court (before conBidered) to
transplant sovereignty from the people of each state, by whom it
has been and may be exercised* to the people of the United
States, by whom it never has been nor can be exercised, under
our present system of government, might fail of success ; and
therefore a new mode of destroying the sovereignty of tiic
people is resorted to. Its jealousy is first appeased by the
acknowledgment of spherical sovereignties, and then its de-
gradation is finished by subjecting these sovereignties to su-
premacy. If the ground is a good one, all the states of
the union took bad ground both in establishing and sustain-
ing their independence. Supremacy was the literal claim of
the British parliament over the colonies ; and these colonies
having only established sovereignties (an inferior political de-
gree) have in fact tacitly acknowledged the British claim,
which, being thus recognised, may be still prosecuted. It is
also probable that the treaty failed to acknowledge our title to
paramount and supreme flower. If the treaty and the decla-
ration of independence had not unfortunately committed this
Oversight, it would have narrowed the question considerably^
by excluding from it a necessity for this entire section. Had
these instruments declared the states to be sovereign, inde**
pendent, paramount and supreme^ then the language of the
court's admission must have been correspondentiy changed ;
and instead of admitting that both the federal and state go-
vernments were each sovereign within its sphere, they must havfe
admitted that each was sovereign, paramount and supreme
within its own sphere. But, if this language, to give each
word its excessive meaning, would have been tautological;
then these instruments have committed no error, but merely
avoided repetition, by rejecting useless synonymes. To ad-
mit, that the words " sovereign, paramount and supreme" are
synonymes, to express the highest degree of political power, be-
stows on the two latter their most excessive meaning ;' whilst
there is no excess at all in allowing that meaning to the first ;
therefore this admiission bestows. on the doctrine of the court
tiie utmost force of which it is susceptible. And yet after tiius
doing for it all that can be done, and more than it can claim, it
< is obviously defeated by the error of giving to one synonyme a
Afferent meaning from another ; just as it is impossi^e to

Q



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122

prove, that though three apples are of the same weight, yet
that one may be made heavier than the others, by calling it a
supreme apple. But I shall endeavour to prove, that even tiiis
ground is stronger than the opinion of the court is entitled to»
by shewing that «• sovereignty" describes a higher power, than
*» paramount or supreme," and therefore that it was never in-
tended to be subjected to them.

The word "paramount" is not mentioned in the constitution^
nor any where adopted, that I recollect, by our political phrase*
ology ; wherefore in considering the leader, it will be unne-
cessary to pay much respect to a feeble ally. Hence I proceed
to shew, that the word *• supreme" is invariably used by the
constitution, not in a paramount but in a subordinate sense to
sovereignty.

" The constittiHon, and the laws of the United States which
** shall be made in pursuance thereof, and all treaties made or
** which shall be made, under the authority of the United States,
*« shall be the supreme law of the land, and the judges, in
«* every state, shall be bound thereby, any thing in the consti-
" tution or laws of any state to the contrary notwithstanding.^
This is the clause of the constitution, supposed by Hie coutri
to confer on congress a power over the state governments and
state sovereignties. These state sovereignties made, may re-
voke, or can alter the constitution itself^ and therefore Uie
supremacy bestowed upon the constitution, being some power
subservient to the state sovereignties, demonstrates that the
word " supreme" was used in a sense subordinate to these so-
vereignties; and being used in that sense, it is impossible
that the people intended it as a r^ocation of those powers,
or of any of their appurtenances, or of the spherical sovereign-
ties, previously bestowed, never recalled, and specially reser«>
ved to the state governments, by the sovereignties, to whom
the whole constitution and all its words, are subordinate. Ac-
cording to the construction adopted by the court, the stile of
tlie constitution ought to have been this. "We, state sove-
" reignties, do hereby establish a fed'eral government invested
" with limited powers, and retain our state governments, wi&
" all their powers not delegated to the federal government,
" each of which governments shall be sovereign within flieir
^' respective spheres, but over these sovereignties, we also cre-



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123

^i ftte three suprcimacies ; one a supren(iacy of the constitutioii ;
« another, of the laws of the United States; and a third of
^ the treaty-making power." It is hard or inpossible to serve
two masters only* The court has turned the federal and state
governments into sovereignties, and placed over all, three su-
premacies. The difficulties of such a system would be insur-
mountable : whereas, by acknowledg^^ one master only, in the
sovareignty of the people, and confesMng [the obligation of the
political departments created by that sovereignty* to move
within the orbits assigned to th^m, as great a degree of order
mny ensue^ united with liberty, as is attainable by humaa
wisdom, .

Are. these supremacies of co*ordinate and equal power ; or
are laws and ti*eaties subordinate to the constitution P The
constitution, the laws and the treaties are all declared to be
the supreme law of the Und> and therefore, as it could not
have been desigiied to bestow on laws, an authority equal to
the authority of the constitution, no construction can be correct,
which does not sustain both the superiority of the constitution
over laws, and also a perfect equality as to the obligations
imposed by the supremacy declared; and such a construction
is I think <]^ite visible. The supremacy is not bestowed upon
the federal government. It is a moral and not a personal
supremacy which is established. It was not intended to confer
#11 one department, sphere, sovereignty, or organization of
persons, any superiority over another department, sphere*
i^vere^nty, or <»^nization of persons; and was merely a
declaration of the respect to whic^h the recited moral beings
were equally raititled. The constitution cannot be personified,
so lUB to he reduced to a supreme body politick distinct from
the people; and if laws are to be personified by congress, and
tx'eaties by the president and senate* their supremacy would
either be of a diferent nature from the supremacy of the
constitution, or these two departments, neither of which, nor
, both CiQfistiiute the federal government, would be made supreme
over the federal and state governments, and equal to the
supremacy of the people, if they are to be considered as the
representatives of the supremacy of the constitution. But as
no additional personal or national power was conferred by
d^^pdming the constit.ution to be the supreme law of the lai|d«



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it prOTes that no additional personal or spherical power wai
conferred by declaring the laws and treaties to be also the
SQpreme law of the land. The declarati<Hi> that the constitu-
tion was the supreme law> confirmed all its limitations* divi-
sions, restrictions and limitations of power, and it never y/nm
intended that either should be altered in the least degree bj
laws or treaties, or be placed nnder the power of those who
should make laws or treaties. On the contrary, tiie laws
were to bQ made in pursuance of the constitution, and tto
treaties, under the authorittf of the United States. The Uni-
ted States have no authority, except that which is given by the
constitution. Both the laws and treaties to be supreme must,
therefore, be made in conformity with the powers bestowed,
limited and reserved by the constitution, and by these we
must determine whether a law or a treaty has been constitu-
tionally made, before the question of its supremacy can occur.
The judges are expressly referred to, as the curators or execu-
tors of this moral supremacy, and no other department is by the
least hint recognized, as being able to impair or enforce it And
finally, all officers, legislative, executive and judidal, take an
oath to suiq[K>rt the constitution, which is a moral sanction in
favour of a moral system ; and none take an oath to acknow-
ledge any species of personal or spherical supremacy. This
clause then amounts to no more, than that the constitution
shall be the supreme law of the land* As proceeding from the
sovereignty of the people, the highest political authority, the
term was proper ; because it was paramount and supreme over
whatever should proceed from any inferior authority ; and as
the constitution embraced our whole system of government
both state and federal, by delegating and reserving powers,
the supremacy bestowed on it was intended equally and eo-
extensively to protect and secure the powers delegated to the
federal government, and those reserved to the states. In this
construction of the word ** supreme," the court itself has lite-
rally concurred, in assertmg <' that it would be its duty to
*' declare an unconstitutional law void." The right of doing
this arises fi:Dm the supremacy of the constitution over law;
from the restriction it imposes upon political departments or
sjjieres to confine themselves within Ibeir limited orbits ; and
from its intention that each department or sphere should



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125

controul another, if it trangresses its boundary. Upon thift
ground the court has asserted this constitutional power in ita
own sphere. It can be defended upmi no other; because the
constitution does not say, that their judgments shall be the su*
preme law of the land. If the ground be solid in relation to the
judicial sphere, it is equally solid in relation to the limited fede-
ral and state spheres. If the le^slatire federal sphere have no
supreme power over Ae judicial federal s|Aere ; because its
power is limited by the constitution, and not extended beyond
these limitations by the clause of the constitution under
consideration; it follows, that neith^ the federal nor state
spheres derive any supremacy over the other from the same
clause, whilst acting witiiin their limited boundaries.

In fact, tiie opinion of the court admits the soundness of this
construction, though it qualifies the admission by an unexplained
ambiguity, which ingeniously keeps the questbn out of si^t
<< It is a question of supremacy." But it does not explain what
this supremacy is, nor how far it ^tends. ** It is of the very
" essence of supremacy to remove all obstacles to its action
^unthin Us own sphere.^^ By the words "within its own
" sphere" the court seems to admit, that a sphere ought to act
within tiie boundaries prescribed to it, without suffering any
hindrance from another sphere. This is all for which I con-
tend ; and if this be allowed (and it must be allowed to justify
the judicial sphere in annulling an unconstitutional law of
congress,) then neither the federal nor state spheres whilst
acting within their spheres, are subjected to the impediments
of the other, and each has a right to controul such impedi-
ments. But then the court produce the ambiguity by adding,
that a supreme sphere may "so modify every power vested in
** subordinate governments, as to exempt its own operations
•* from their influence.^' It is useless to concede principles if
they can be evaded. The court had previously admitted that
the federal and state governments were *' both sovereign with
^ respect to the objects committed to them, and neither sove^
« reign with respect to the objects committed to the other ;"
but now it takes it for granted, that the federal sphere is
wupreme, the state spheres subordinate, and that in conse-
quence of this supremacy and subordinacy, the federal govern-
ment haB a right <* so to modify every potcer vested in the



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<' state governmeotSy as to exempt its own operation frooL
*' their influence."

Power in the exercise of verbal construction, and in dedu-.
cing inferences from particular phraseSj^ lil^e a fine lady admi<
ring a casket of jewels, very easily discovers whatever it
wishes for, to be right, convenient, useful and necessary. Par-
ticular texts are often tortured to appease conscience, or ta
gratify prejudice ; and good or bad intentions are ^ually
fertile in expedients for surmounting obstacles. A single word
is often so indefinite, that its meaning is controuled by another,
A single sentence may generally be twisted into an enmity
with principles plainly asserted, in any book ; but the defect
of language do not equally extend to an entire treatise. Thus
the imperfections of isolated words and sentences, and the
frailties of mankind unite to teach us, that tiie licentiousness
of constructimi can only be controuled by an impartial estimate
of a whole, and a candid comparison of its parts. If the reader
shall examine the federal constitution by this rule, and should
discover that it delegates a power to the federal government
** so to modify every power vested in the state governmenta as



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 12 of 34)