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Construction construed, and constitutions vindicated online

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*' to exempt its own operations from their influence,'' he must
conclude, that the decision of the court, founded upon the
existence of this power in the federal government, is correct f
but if the constitution invests the federal government with no
such power, then it follows, that this decision, founded upon a
supposition that it did, must be unconstitutional* This is ia
fact the very essence of the question ; as interferences by the
federal or state governments with pow^*s delegated to the
other, are in truth modifications of those powers; anditia
extremely important to ascertain, whether a power so enor-
mous and unspecified is common to both, or exclusively c<mfer«
red upon the former. The latter is asserted by the court ftr
the purpose of modifying the state right of taxation ; by those
members of congress who supported a bill finr prohibitii^ slave-
ry in a particidar state, and is the ground upmi which alone att
interfering with the police of states can be defended.

It will be allowed, that the people of each state had» and
exercised the right of modifying the powers vested in the state
governments. If the federal government now have it, the most
unexpected consequences will ensue* The peqple can no



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longer exercise the right, because they helve given it away. If
it be a concurrent right, should they exercise it, the federal
government may re-modify their modifications* The state gov-
ernments will be responsible either to the federal government
singly, or both to this government and the people for their
conduct It was quite idle to reserve to the state governments
ike powers previously bestowed, if they were at the same time
subjected to the subsequent modifications of the federal govern-
ment. And the meditated check upon the federal government
by the powers reserved to the state governments Would be
equally insignificant. These consequences of the construction
given to the word •'supreme^ by tiie court, so confpletely
subversive of the essentia principles of our system of govern-
ment, are a sufficient exposition of its incorrectness.

But the argument becomes stronger, when we resort io the
provisions of the constitution. I shall venture to test the
position relied on by the court, by the mode before practised of
confrimting it with a contradictory position ; so that one or the
other must be disallowed. It is a question of supremacy ; the
Constitution has invested the states with a complete, and the
stalte governments with a limited supremacy, over the federal
government, and expressly subjected its operaHons to the
influence of the latter, in sundry important instances. The
states by common consent may dissolve or rtiodify the union,
over which, by the natural right of self-government, which they
have never relinquished, they retadn a complete supremacy.
By tiie constitution, the state governments are invested with
the rights of appointing senators and electors of a piiesident,
ibr the very purpose of influencing the operations of the federal
government for their own security. They may forbear to
exercise this right, and thus dissolve the federal government.
They may elect the members of the house of representatives by
a general ticket, and thereby very considerably influence its
operations. They may compel congress to call a convention.
They may ratify changes of tiie federal government, without
its consent. Hiey may affirm or reject amendments proposed
by congress* They have a cohcurrent right of internal taxa-
tion with tiie federal government, and these concurrent rights
may deeply influence each other; and they are exclusively
'invested with the appdintment of all the officers (ji that force.



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Aipon which the safety and liberty of the nation depend. These
powers seem to roe, to invest the state govemments with a
limited supremacy over the federal government ; at least it
must be admitted, that they are such as may and do deeply
influence its operations. The constitution gives no authority
to the federal government to exercise such powers over the
state governments. Can it then be true, as the position of the
court declares, that the federal govemtnent have a right so to
modify every power vested in the state governments, ns to
exempt its own operations from their influence ? Upon the
ground of this doctrine, the supreme court of the federal
government has attempted so to modify the concurrent right
of taxation reserved to the states, as to exempt the incorpora-
ting power assumed by congress, from its influence. This is
one of the enumerated powers invested in the states, by which it
was certainly foreseen and intended, that they might influence
the operations of the federal government ; and if in this case
such an influence justifies a modification of the state power of
taxation by the federal government, and even by one of its
departments, the same reason will justify a modification of
all the rest of the enumerated influencing state powers. The
supreme court might by the same principle, appoint senators,
electors, and militia officers, should the states neglect to do it ;
in order, by modifying these powers of the state govemments,
as being subordinate to the supposed supremacy of the federal
government, to exempt the latter front their influence.

If, therefore, it should have been proved, that the federal
government is not invested with a power of modifying the
powers bestowed by the people on the state governments, the
pretended supremacy,'8upposed to bestow a right so unlimited,
does not exist ; the modification on the state power of taxa-
tion was of course unconstitutional ; and the question would
seem to be settled. But it starts up again in a new form ;
and though it should be allowed that the entire federal govern-
ment do not possess a right to modify the state constitutions,
yet it is still contended, that one of its subordinate depart-
ments does possess it ; and its supreme court have accordingly
modified and restricted the power of internal taxation bestow-
ed by the state constitutions on their governments. This
power under the state <;onstitution9 was unlimited. It is



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129

not limited by the federal constitutiofi. But the federal court
have adjudged^ that it is either necessary or conYenient that it
i^onld be limited ; and for that reason they have modified it
by a precedent sufficient to justify other modifications of state
powers to any extent, upon the groand of possessing an unli-
mited supremacy over the legislative and judicial power of the
states.

The supremacy we have examined is confined to the consti-
tution, the laws, and treaties. It is not extended to judicial
decisions* Suppose congress should pass a law declaring such
state laws as they pleased, to be unconstitutional and void.
An excessive interpretation of the word " supreme," might give
some countenance to so evident an usurpation ; and as one
branch of the federal legislature is elected by the people, it
would afford some security, however imperfect, against such a
prostration of the state governments at the feet of the federal
legislative power. But neither this excessive supremacy, nor
this defective security, plead for lodging the same unlimited
power in the federal coufts. Were they to possess it, they
might modify the state governments, in a mode, contrary to
the will of congress, as is exemplified in the case under con-
sideration. In creating the bank of the United States, congress
did not endeavour to prohibit the states from taxing the pro-
perty employed in that speculation. Had the state right to do
so been considered in that body, its constitiitionality might have
been decided in the affirmative. The court, therefore, in assu-
ming a power to restrain this state right, may have violated
the will both of the federal and state legislature, and modified
the state constitutions, contrary to the judgment of both. The
state law asserted the right, the federal law is silent, and the
court imposes a constitutional rule on both (as if it were itself
a constituent or elemental power,) objected to by one, and
never assented to by the other. This outstrips even the arbi»
trary principle laid down by the court itself "that the supreme
« government may modify every power vested in subordinate
<< governments, to exempt its own operations from their influ-
** ence.'^ It will not be asserted that the federal court is the
supreme government, or that it has operations to carry on,
which ought to be exempted from the influence of the subordi-
nate state governm^ts. If these governments stre not ^ubordi-
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ntte to that coort, it cannot modify their powers, even under
its own principle ; and if the federal goyemment posses^ this
modifying power, it oa^t to be exercised by congress, before it
can be enforced by the court The court at most can only exe-
cute, and have no power to pronounce the modification. Con-
gress might hare intended, tiiat the power of taxing the United
States bank, like that of taxing state banks, should remain as a
concurrent power, like the other concurrent powers of taxation.
If that body conceived itself possessed of a power to modify
the state power of taxation, it could only do so by its own act,
and that act ought to have been explicit, that the people might,
by election, have expressed their opinion concerning it. But
when the modification is expressed by the court, the chief
remedy for deciding spherical collisious,and for restraining
each division of power within its own orbit, is wholly evaded,
and completely transferred from the people to the judges.

But, though it should be allowed, that the court derives no

supremacy from that clause of the constitution, which bestows

it upon the constitution itself, the laws and treaties, yet it has

been claimed under another. *' The judicial power of the Uni-

'* ted States shall be vested in one supreme court, and in infe*

** rior courts. The judges, both of the supreme and inferior

'* courts shall hold their offices during good behaviour." And

in the next clause, this " judicial power of the Umted States^^

is defined and limited. By this clause, a judicial power is

vested. Was it a limited or an unlimited power? It is ex*

pressed to ht** the judicial pouter of the UnUed StatesJ* In

the second section of the same article, the judicial power of

the United States is expressly defined and limited ; and this

defined and limited judicial power, is that which is vested in

the supreme and such inferior courts as congress may from time

to time establish. The word " supreme" is evidently used in

reference to <* inferior.'' The supremacy bestowed is over the

inferior courts to be established by congress, and not over the

state courts, either supreme or inferior. This is manifested

by the division of jurisdiction between the supreme and inferior

courts. In cases ** affecting ambassadors, publick ministers and

*• consuls, and where'a state shall be a party, the supreme court

<< shall have original jurisdiction. In all other cases before

« mentioned the supreme court shall have appellate jurisdic*



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** iion.'' ^ Before mentioned." Thus ezpresaly limiting the
jurisdiction of the supreme court of the United States* to the
subjects defined in tiie preceding article. If, therefore, anjr
tiling in the federal constitution is plain enongji to be under*
stood, I think we may certainlj ccmclude, that the word ** su-
preme^' w^s not intended to extend the power of the federal
court in any degree irtiatsoever. That court by declaring every
local or internal law of congress constitutional, would extend
its own jurisdicticHi ; a limitation of which, attended with a
power to extend it without controul, by a supreme power over
the state courts, woi^ld be no limitation at all ; since the pow-
er of supremacy would destroy the.c^-ordinate right of con-
struing the omstitution, in which resides the power of enfor-
cing the limitation. A jurisdictimir limited by its own will, is
an unlimited jurisdiction. As a further evidence of this con-
clusion, it may be observed, that if this word had bestowed •« a
supreme jurisdiction," there would have been no occasion for a
subsequent delegation of jurisdiction to the sepreme court;
and that, as by the subsequent jurisdiction bestowed (in the
fyvr cases of ori^nal jurisdiction given to the supreme court ex-
cepted,) the power of the inferior courts is made the basis of the
ai^ellate jurisdiction, given to the supreme court, it follows, that
if the word *' supreme" does not extend the jurisdiction of these
inferior ccmrts, it does not extend the jurisdiction of the supreme
court. As the word " supreme" is not applied to the inferior
. courts, it cannot invest them with any power over the state
courts. And as the appellate jurisdiction of the supreme court
is limited to the cases before mentioned, of which the inferior
courts can only tkke cognizance, it cannot invest the supreme
court with any power over the state courts, unless it has also
invested the inferior courts with the same power.

The federal constitution does not say, " that the legislative
power shall consist of .one^siy)reme andinferior legislatures;"
because it considered the stetelCfid tederal legislatures as in-
dependent of each other, within their respective spheres. Had
it considered the state legi^atures as subordinate to the federal
legislature, the supremacy of the latter would have been de-
clared, and the subordination of the former expressed, as objects
upon which this supremacy was to operate. If one federal
court only bad been allowed by the constitution, the word " su-



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preine'' woald hare been unnecessftry. Id creating and sped-
fytng the objects, namely, the inferior federal courts, upoa
which the supremacy was to operate, ali other objects are
excluded. The j^icial federal 4>ower therefore stands in the
same relation to t|ie state judicial power, as the federal leg^s^
htive power does to the state legislative power; aiMl if either
be independent of the other whilst acting within its own sphere,
both must be also independent of the other. If congress can-
not repeal or injoin state laws, the sopreme federal court cannot
injoin or abrogate state judgments or decree^* If the federal
l^islative power be limited, the federal judicial power must also
be limited.

For the elucidation of this very important p^t of the sub-
ject, I shall resort to authorities, as respectable as authorities
can be.

Fed. p. 72. M. *' The jurisdiction of the general government,
'• is limited to certain enumerated of^cts, which concern all the
" members of the republick, but which are not to be attained
** by the separate provisions of any.''

Fed. p. £08. M. ** The local or municipal authorities foitn
'« distinct and independent portions of the supremacy no morer
" subject within their respective spheres^ to the general authority,
** than the general authority is suhject to them within its otpn
" sphere J^ In the same page, however, Mr. Madison makes what
tlie lawyers call an obiter observation, tliat is, he drops an opinion
by chance, apparently without due consideration. '* It is true,"
says he, '* that in controversies relating to the boundary between
*< the two jurisdictions, the tribunal which is ultimately to de*
" cide, is to be established under the general government"
Perhaps I mistake his meaning. If he mean, << controversies
«' between two state jurisdictions," I admit that their decisien-
is vested in the federal judicial power. But if, as I confess it
appears to me, he meant << that the federal judicial power was
*< vested with a right of deciding controversies between itself
<< and the judicial power of the states," I must with much con-
fidence, yet with great respect, differ with him in opinion.
The point ought to be determined by the c(M)stitution itel&
Mr. Madison asserts that, <* the jurisdiction of the genead
*' government is limited to certain enumerated oigects.^^ Is thk
case comprised within that enumeratt<m ? Is it said, geoierally^



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^ thi^ the state jndidftl sfrfiere shaU be sutgect tatiie eimtrdiil of
l^e federal judickl gphere P' Or is it said« speciallj* that con-
troversies as to jurisdictifm between these two spheres shall be
dedded hj one of the parties? Are controYersies between the
state and federal l^lslitiTie spheres to be also decided by one
of the parties? Neither conclusion can consist with the prece-
ding opinion of Mr. Madison, that ** the local or municipal air*
** thorUiei form Mstinet and independent portions of tiie supre-
^ maey no mare subject within their respectire i4>heres, to the
** general authority, than the general anthoritj is subject t#
« them within its own sphere." However, therefore, we shift
our wordsor phrases, in describing the powers delegated to the
federal government and reserved to ^e stales ; whether we
call them sovereign, supreme, legislative, executive or judicial;
they still retain their spherical, limited, co-ordinate and inde-
pendent nature, in relation to eactt other, according to the
consCruction of contemporary writers of the best authority.

Fed. p. 456. H. ** There is not a syllable in the plan which
** directly empowers the national courts to construe the laws
^according to the spirit of the constitutkHi, or which gives
^ 4hem any greater latitude in this respect^ than may be claimed
'* by the courts of every state ;" Unequivocally rejecting tiie
idea of judicial spherical subordination.

But ihis constitutional question is deliberately and distinctly
stated, iq^arently upon the most prc^ound consideration, in a
style, and with^ precision, which it would be presumptuous in
me to defend, in certain resolutions of ^e Kentucky legisla-
ture, passed in the year ir98, said to have been drawn by Mr.
Jefferson, and bearing internally, evidence of flowing from an
enlightened mind. The first is in these words : — *' Resolved,
"that the several ^tes com]po8ing the United States of Ame-
*« rica, are not united on tfie principle of unlimited ^ubmission
** to their general govemtnent ; but that by compact under the
** style and title of a constitution for the United States and of
<* afoendments thereto, they constituted a general goveniment
" for special purposes, delegated to that government certain
« desfinite powers, reserving each state to itself the residuary
« ma$s of right to their own self-government; and that when-
<* soever the general g^ernment assumes undelegated powers,
^ its acts are iinau&eiitative, void and cf no force : That to this



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*^ eompact each state acceded as a state, and is an integral
" partj, it» co^tates forming, as to itself, the other partj ; that
'* the goremment created by this compact was n^t made tite
^' exduiive or ftmd judge of the extent o^ihs powers ddegatei
" to itself $ since that would have made its discretion, and not
** the constitution, the measure of its powers j but, t^t as in
" all other cases of compact among parties having no common
" judge, each party has an e,qual rig^t to jud^ for itself, as
" well of infractions as of the measure of redress." The co-
ordinacj of institution, the independence of each other, and
the mutuality of the right of construing the federal constitution,
are thus recognised and asserted, as existing in the federal and
state governments ; axid the principle, which pervades tiiewhole,
must also pervade the parts. If the entire federal government
possesses no supremacy over, and can require no subordina-
tion from the entire state governments, whilst acting within
tiieir respective spheres, no part or department of that govern-
ment can exert a supremacy over, or exact a subordiiSation
from, the corresponding parts or departments of the state
governments. The federal legislature having no supremacy
over the state le^slatures, the federal judicial power can have
no supremacy over the state judicial power* The same pro-
hibition of such claims, co-extensively forbids to both an enlarge-
ment of power by trespassing on the state sphere or state
departments. It arises from the limited powers bestowed on
the legislature and judiciary of the federal government, and
the reservation of the residuary mass of right to the states.

With this construction, the oath of office prescribed by the
federal constitution is a remarkable coincidence. Both legis-
lators; judges and other officers, of the state as well as tii^
federal governments, are required to take an oath to support
tlie federal constitution; but neither federal legislators, judges
nor other officers, are required to take an oath to support the
state constitutions. The reason of this distinction is, that
state legislators, judges and officers, have some duties assigned
to them by the federal constitution, and would necessarily
have others, arising from the laws of the United States ; but,
that federal legislators, judges or officers, having no duties to
discharge under the state constitutions or laws, but being con-
fined within the limited spheres defined by the federal constl-



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135

^tiofl, no ftUegiaace to state constitutions was necessary on
tiieir part. I cannot imagine a power more inconsistent with
republican prindples in general, and with ours in particular^
than thai claimed over the state laws, and con^uentiy over
the state constitutions, by the supreme federal court. It is
under no obligation or responsibility of any kind to respect
either. If it should yiolate its Intimate federal or spherical
duties, it violates its oath ; and is liable to trial and removal
from office. But, in virtue of its supposed supremacy over the
state courts, it might be tempted to annul state laws, to ad-
vance the power of congress, by whom it is paid and tried ;
Und it might alter the institutions of the peofde according to
its own pleasure, without even breaking an oath. Ttie case is
analogous in all its aspects to the claim of the British parlia-
ment, neither bound by an oath, nor elected, nor piud, nor
removable by the people of the colonies, over the legislatures
of tiiese colonies; which were elected, paid and removable by
the people, and also bound by an oath. A judicial power,
though under the obligation of an oath, paid by the king of
England, was justiy considered in Massachusetts, as an outrage
upon the principles of justice and liberty, tt was a feather to
one, created by and accountable to a native distinct govern-
ment, emulous (as is the nature of man) of power, possessing^a
supreme power, over the laws of a collateral government, with-
out being under any influence or responsibility to observe
those laws.

But cannot judges declare unconstitutional laws void? Cer-
tainly. Constitutions are only previous supreme laws, which
antecedentiy repeal all subsequent laws, contrary to their tenor;
and the question, whether they do or do not repeal or abrogate
such subsequent laws, is exactiy equivalent to the question,
whether a subsequent repeals a previous law. Therefore Judges,
juries and individuals have a correspondent power of deciding
this question in all Ultimate occurrences. But the constitu-
tionality of state laws cannot legitimately be decided by the
federal courts, because they are not a constituent part of the
state governments, ncnr have the people of the state coc^ded to
them any such authority. They have confided it to the state
courts, under the securities of an oath, and of various modes
of responsibility. The people also have confided to the federal



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136

e<iurt» a power of deelarmg an uncemtitatimial federal law
toid, under similar securities; but where sudi a pc^rer is nei-
tlier bestowed by the people, nor anjr seoartty against its abuse
provided^ its assumption by inference is repelled by the absence
of ererj regulation for moderating its exercise. In fact, the
spheres of action of the federal and state courts are as separate
and distinct, as those of the courts of two neighbouring states*
Because the judges of each state are empowered under certain
regulations to declare a law of their own state void, it does i»)t
follow, that the judges of another state can abrogate it The
federal judges owe no all^ailce to the state govemtiieBts, nor



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 13 of 34)