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Construction construed, and constitutions vindicated online

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are more a component part of them, nor are more responsible
to them, than the judges of a different state. Ramsay's United
States, Yo. 1. p. 202. *' Great Britain ccmtended, that her
^parliament, as the mtpreme p&wer, was constitutionally in*
•* vested with an authority to lay taxes on every part of the
** empire." ** If the British parliament, said the colonies, in
«• which we are unrepresent^, and over which we have no am-
^ irottl, can take from us any pari of our property, they may
'* take as mach as they please, and we have no security for any
«• thing that remains." p. 303. " That by the novel doctrine
** of parliamentary power, they were d^raded from being the
•* subjects of a king, to the low condition of being subjects of
** subjectsJ'^ p. 306. ** "Where parliameidary supremacy ended^
*' and at what point colonial independence hegan, was not ascer*
** tained.'' p. 307. ^ The omnipotence of parliament was so
*' familiar a phrase, tiiat few in America, and still fewer in
** Great Britdn, were impressed, in the first instance, with the
** illegality Of taxing the colotiies." Let us parody this quo"*
tation. The federal court contends, tiiat as the supreme power,
it is constitutionally invested with an authority to abrogate
state laws, and contract state revenue. If, say tiie states, tiiis
court, over which we have no controul, can take from us any
law, or any revenue, it may take away as many or as mticft as
it pleases, and we have no security for retaining any. By the
novel doctrine of federal judicial supremacy* we are degraded
from the right of internal self-government, to the low condition
of being subjects of sul^ects. Where the federd juri$dieHon
ends, and where stide jurisdiction begins, is ascertained by the
federal constitution, but the amnifotenu of federal supremacy.



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legisl&tii^ and jadi<^a!, nutj become so familiar a pbme, that
few may be impressed, in the first instance, with the conse-
quences to which it tends, or the evils in which it may termi-
nate.

The ^rst instance of a spherical supremacy which I recollect,
M%m the claim of the treaty-making power, to bind the taxing or
legislative power, by stipulating in a treaty for the payment of
money. This was a depute between two federal political
spheres ; but the principles, upon which it has been or must be
settiLjed, are those by which the rights of the federal and state
political spheres can alone be ascertained. In both cases, to
find where powers begin and end, we most either conclude^
that one sphere cannot be let into another under a clum of
8upremacy,*or by any verbal construction, so as to abridge rights
bestowed by the constitution ; or concede, that the copstitution
has unsuccessfully attempted to establish, divisions of power .
between political departments. The federal le^shUve and
treaty -making powers are obviously more interwoven with each
other, than the federal and state powers delegated and re-
served; yet the federal legislature would not be at a loss to.
find limits for the treaty-making power, nor to discern the
powers confided by the constitution to itself. As the federal
legislative sphere may justly deny to the treaty-making power,
a ri^t to abridge tlie powers delegated to itself by the consti-
tution, under a claim of supremacy, or by any species of con-
struction f so> the state spheres may justly deny to the federal,
legislative or judicial spheres, a ri^t to abridge by similar
modes the powers reserved to them. Suppose tiie treaty-
making power should stipulate with England to declare war
against France ; would that deprive c^igress (^ the right of pre-
serving peace, with which it is invested by the. constitution ?
Suppose in like manner that congress should stipulate with a
corporation by one 6f those laws called charters (in awkward
imitation of monarchical sovereignty,) that its property should
not be liable to state taxation ; can that deprive the states of a
light as distinctly given to them by tiie constitution, as the
ri^t of decUriAg war is given to copgress ? Previously to an
incorporation, its funds, of whatever species of property com-
posed, were by the constitution subjected to state taxation.
Could congress or the supreme court have exempted this pro-



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pertj, directly, from the state coDstituttooal right to tax it?
If the J could not, can thej do it by the circumlocutory coa-
trirance of using two words •» corporation and charter ;'' neither
of which is recognized by the constitution ? Cases might be
stated to shew, that there are many objects within the reach oi
a supreme or sovereign treaty-making power, to which our«
does not extend ; such as, stipulating to keep on foot standing
armies ; to raise armies and navies as foreign auxiliaries agunat
nations with whom we are at peace ; or to destroy the union
by ceding states to form a kingdom . for some foreign prince ;
and these powers may as correctly be implied because they are
not prohibited, as the powers of supremacy claimed by congress
or the court. If we must resort to the obvious ends, the general
texture, ^d the special divisions and limitations of -the con-
sUtutron, to avoid these violations of its positive principles, b jr
a treaty-making supremacy ; ihe same remedy exists to defeat
the evils, equally indefinite, which would arise h*om any other
spherical supremacy. We have a multitude of political spheres^
state and federal ; and if the orbit of one does not terminate
where that of another begins, I am unable to discern any boun-
daries between them, so convenient or necessary for preventing
a political chaos. If either of these spheres may create corpo-
rate political spheres, capable of corrupting, or of diminishing
the powers of constitutional spheres, the musick, after which
we have been dancing for almost forty years, will I fear be-
come so harsh, as to make us weep. The licentiouniess te
which construction may be carried is remaikably exemplified,
by its attempts to invert the climax of supremacy, estaWshed
by " the constitution of the United States." «* The consd-
'* tution, the laws made in pursuance thereof, and the treaties
" mad^ under the authority of the United States, shall be the
« supreme law of the land." Under this clause, treaties have
aspired to a supremacy over laws, and laws to a supremacy
over the constitution, though both the legislative and treaty-
making spheres have no powers, except those given by the con-
stitutipn, and are limited by the authorities it bestows. It
wcmld seem therefore perfectly plain, that neither is invested
with a supremacy, able to justify an abridgment of a power
given by the constitution to the state spheres, and that these
may resist such attempts, upon the ^me ground that the legis-



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139

lative fedeirat sphere resists an attempt of the treatj-making
sphere to abridge its constitutional rights.

The argument of the court maj be thus condensed. The
federal and state governments have limited powers under the
federd constitution. The powers <ff both are attended by such
a portion of spherical sovere^nty, as is neces^rj or convenient
for. their execution. Sovereignty can Intimately use the
means it may choose, for the execution of the powers it legiti-
mately possesses. So far nothing is gained ; because the sove-
reignty bestowe^ and the means it may use, are limited by the
spheres of action bestowed upon each government, fiut the
difficulty is gotten over, and the court^s own argument over-
thrown, by thrusting the word *< paramount" into the consti-
tution. The mutuality and equivalence of the spherical sove-
reignties allowed to the state and federal sovere^ties is
revoked ; and one is made an absolute sover^gn over the other,
by a construction of the word « supreme" and an interpolation
of the word *< paramount ;" which must be unconstitutional, if
the limited spherical sovereignties, previously assigned to each,
are sustainable by a correct construction. To say the most
for " paramount and supreme," they are only tautologies of
f* sovereign;" and being so, shed no new light upon the case.
Had the court declared, that the federal and state governments
were each paramount and supreme, within their respective
•spheres of action, it would havei only been a repetition of its
assertion, "that they are each sovereign, within their spheres
0f action."

The reader perceives that the enquiry is reduced a plain
question. Is. our system of government founded in the princi-
ple of co-ordinate political departments, intended as checks
iipon each other, only invested with defined and limited
powers, and subjected to the sovereignty, supremacy, paia-
mount power, superintendence and controul of the people ;
or in the principle of a supremacy in the federal legislature or
judges, witii its concomitant controul over the state legislative
and judicial departments ? If ,the division of powers among a
great number of political departments, endowed with rights .
independent of each other, constitutes its chief beauty, its
distinctive superiority, and its soundest security fc^r human
happiness ; then t^e absence of supremacy or sovereignty in one
department over the rest does not require the expedient of



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140

iliuiBhig words and phrases for 6ie fmrpose' of getting rid of an
hnaginarj defect, bj introducing tbe very evil intended to be
avoided. If words are to be tortured or borrowed, let it be done
to sustain, not to subvert the essential principles ef our political
System ; if we continue to \&ve that, which <yther nations admire.
Should congress assume a paramount or supreme power oiper
the state governments, it would acquire the authority of the
people themselves, naturally possessed, never transferred, spe*-
cially reserved, and necessary for the preservation of their
liberty. Even the English monarchy derive^ all its eulogies^
and owes all its benefits to the want of supremacy and subordi«
nation between its political spheres, and to the collisions which
their absence produces. By extending the same principle,
our system of government has obtained greater eulogies, and
diffused greater blessings. Of these euk^es and blessings
the checks and collisions between several legislative branches |
between legislative, executive and judicial departments ; and
above all, between the federal and state governments, are.
the sources. To this principle we owe the valuable judicial
right of restraining legislatures within their constitutional
powers. To the same principle we have resorted for the same
purpose, by dividing powers between the. federal jand state
governments. Are the state spheres less respectable than the
supreme court, or less able to restrain congress witiiin its
limits, that they must be doomed to subordination because of
tiie great powers of the federal legislature ; whilst the court
feel their capacity and avow their resolution to controul these
powers, if unconstitutionally exerted P If congress in conse-t
quence of the great power of the federal government possess
a supremacy over the state governments, what must be the power
of the court, which claims a supremacy over congress ? As su*
premacy has been found to govern sovereignty, it is necessary .
to find some word, by which the court can govern supremacy.
By turning our attention from a complexity of words and
phrases, to the true principles of the federal constituti<m»
we shall find one by which the federal court, feeble as it is,
is able to controul the federal legislature, powerful ad it
may be ; a principle, in which the court confides so firmly,
as to express its prowess for vindicating^ its spherical rights.
Feeble also as the state governments, .may be, they are pro-
tected by the same power u|>on which the court relies.



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141

and haTe b6 reaBmnio be less fimi and lejal m diichargiiig
the duties with which thej also are entrusted. The strength
of the government lie§ in the people. They are the pro-
tectors and supervisors of the collateral political sp^erest
which thej have created. If one of these spheres conld
acquire sufficient power to centrmil the o&ers* U would^ Hke
an officer of a momircb, who can c^ntronl all the other officers
of the governmenty obtain^a supremacy over the monarch him-
self $ as many prime ministers of kings have actuaUy done.
Every inference deducible from the inconvenience of conflictii^
powers, and every reason in favour of a r^^lar series of politi-
cal subordination between the several departments of a govern-
ment, apfdii» as forcibly against the check of one legislative
chamber upon Anotiter, and of judicial upon legislative power ;
as against mutual checks of the Meral and state governments
upon each other ; and to supply, what the reasoning of the
court craves, the whole system of division and limitation of
power must be destroyed. If it should make a breach at one
point upon this principle, especially at the strongest, there can
^ther be no talisman able to save tiie weaker from destructioa,
or there is one upon which the strongest may rely.

I cannot discern any difference between a supremacy in one
man, or in one political department; between a singular or a
fdural absdnte power. The divine supremacy both of kings
dmd of popes have been limited by tiie more divine supre*
micy of hnman nature. Neither the uniformity of religion^
nor a complete subordination of one dyil department to another,
has,^ by any modem writer of credit, been considered as equally
beneficial to mankind^ with the principle of limiting power,
whether it be entrusted to tme person, m* to a pditical depart-
ment. The balls of the pope claimed supremacy; but the
conclave of cardinals clumed and exercised a supremacy over
these supreme bulls ; and the Romui cathdick countries found
it necessity to limit both these supremacies. The laws of con*
gress claim a genend supremacy, but the supreme court claims
and exercises a supremacy over them ; and the division of pow-
elrs by the constitution, like thecatholick nations, {lossesses a
right to limit, and has limited both these supremrfies also.
The supremacy of the fope, and of the kings of En^and, waged
a long war against the sovereignty ei imtions and the rights of



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haman nature, clalmtBg a power to remove all obstacles whieh
should impede its will, and ta exempt its operations from con-
troul ; but the war of these allies terminated in their defeat.
The supremacy of congress and of the court, in alliance also,
has declared war against the sovereignty of the states ; but how
ft will terminate, is hidden in the womb of time. We must
enlist either under the banner of spherical supremacy or of a
limitation of political power.

Previously to the union, tJie states were in the enjoyment of
sovereignty or supremacy. Not having relinquishc^l it by the
union, in fact having then exercised it, there was no occasion,
in declaring the supremacy of the .constitution and laws made
in pursuance thereof, to notice that portion of state supremacy,
originally attached to, not severed from, and of course remaining
with the powers not delegated to the federal government;
whilst it was necessary to recognize that other portion of sa-
premacy, attached to the special powers transferred from the
states to the federal government. But, by recognizing the
supremacy transferred, it was not intended to destroy the
portion of supremacy not transferred. The supremacy retained,
and a choice of means convenient or necessary for the execu-
tion of the powers reserved, was as indespensable an appendage
of state rights, as of the limited powers delegated to congress.
And in fact the unqualified supremacy, bestowed upon the con-*
stitution, is equally a guaranty of state and of federal powers,
as is demonstrated by the positive limitation of the supremacy-
bestowed on federal laws, to such as were conformable to the
restricted legislative power, created by the constitution. Sup*
pose a state should declare war, tax imports, or regulate com-
merce ; or, that congress should tax exports, alter the course trf"
descents, or liberate the negroes ; would these be questions rf
supremacy, unconnected with tlie powers actually delegated
and reserved ? If not, supremacy is limited by these powers,
and cannot extend them. In like manner, neither the fedend
nor state courts, can under colour of supremacy, exceed rts
own sphere. If one should assume admiralty jurisdiction, and
the other the dtstrU>ution of intestates' estates, the party usurp-
ing coulf! not constitutionally defend its Usurpation under
colour of supremacy. Unconstitutional judgments, like uncon-
stitutional laws, are null and void, und both courts are mu«



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143

teallj bound by tbeir oaths to the constitutioii, and have a
mutual light to resist and defeat, bj every means in their power,
unconstitutional laws, failing within their respective jurisdic-
tions. Had an oath of loyalty, not to the constitution, but to
the supremacy of one court, been imposed, it might have been
otherwise. An exclusive right in either to ascertain the extent
of its own jurisdiction would leave its jurisdiction without
limits, and the rights of neither judicial sphere can be defetided
agfdnst tlie other, except by using all the means it possesses ;
just, as a senate and house of representatives can only defend
their respective constitutional ri^ts. The supremacy of the
constitution i& not confined to any particular department or
functionary, but extends to our entire system of political law.
Under its protection, the federal senate has a right to defend
itself against the house of representatives; and the federal
judicial power agdnst the federal legislative power ; and if so,
it seems impossible to doubt, that the same sanction invests the
state and. federal judicial powers with a mutual right of self
ijtefence, against the aggressions of each other.^

I renounce the idea sometimes advanced, that the state go^
vemments^ ever were or continue to be, sovere^n or unlimited.
If the people are sovereign, their governments cannot also be
sovereign. In the state constitutions, some limitations are to be
found ; in the federal constitution, they are infinitely more
abundant and explicit. Whatever arguments can be urged
against the sovereignty of state governments, stronger can be
flrged against the sovereignty of the federal government. Both
governments are subjected to restrictions, and the power by
which both Were constituted has entrusted neither with an
exclusive power of enforcing these restrictions upon the other,
because it would have conceded its own supremacy by so doing,
and parted with its inherent authority.

No derived power can be greater than the primitive power*
No state; nor a majority of states, had any species of primitive
sovereignty or supremacy over other states. Elections by states,
therefore, cannot confer upon a majority of congress a supre-
macy never possessed by a majority of states, especially as
froih the form of the senate, the representatives of a minority
of people may pass a law, and this representation of the mi-



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144

iMtfity ndght, if it possessed a legtslatiTe sapremacy, exercise
a sovereign power over the inajoritj. If federal legttlatnrea
do not possess an absolute supremacy, federal judiciaries cannot
possess it, since judgments cannot enforce that which is not
law. In cobformitj with this reasoning, neither federal legisla-
tive majorities, nor a majority of the states, can amend the
constitution, because it was a compact by which each state
delegated for itself only limited powers to the federal govern-
ment ; attended by a supremacy not of any political sphete» but
of the constitution, limited and confined to the powers dele-
gated, and not extending to the portion of primitive state
supremacy, never delated. Thus it happened, tliat no state
was bound by the constitution, until it had acceded individu-
ally to that compact. And hence it result^ that the right of
construing the constitution within their respective spheres, is
mutual between the state and general governments, becai^
the latter have no supremacy over the state powers retained,
and the former no supremacy over the federal powers delegated,
except that which provides the stipulated mode for amending
the constitution.

It is objected, that if the supreme federal court do not pos*
sess an unlimited or unchecked supremacy in construing the
constitution, clashing constructions will ensue* This is true ;
and yet it is not a good reason for overturning our system for
dividing, limiting and checking power, if that system be a good
one ; and if it be even a bad one, the people only, and neither
one of their departments separately, nor all united, can alter
or amend it The objection applies as strongly to the other
departments of our government, as to the judicial. If the
federal legislature and executive do not possess an absolute
supremacy over the state legislatures and executives, clashing
constitutional constructions will ensue. The jurisdiction of
the federal judicial power is as expressly limited, as the legis-
lative and executive federal powers. There is no judicial
supremacy recognized in the supreme federal court, except
that over inferior federal courts. And, if the supremacy of the
constitution bestows upon any federal department a supremacy
over the correspondent stete department, it must bestow upoa
every federal department, a similar supremacy over the other
correspondent state departments.



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145

It is there&re obyious^ tiutt tiie subject proposed by the ofajec-
tion for consideration is, whether it is better to abandon oar
primary division of powers between the state and fedeml go*
TemmentSy to prevent clashing constructions; or to retain this
chief security against a gradual introduction of oppression^
trusting to the mutual prudence of the^e goyemmentSy and the
supreme authority of the people, for meeting the inconveniences
as it appears* The greatest scope of human wisdom is, to
compare evils and choose the least. I cannot discern the wis-
dcHtt of one who cuts off his head, lest his face should be
seratched occasionally as he journeys through life. Montes-
quieu has somewhere said, that when the savage of America
wants fruity he cuts down the tree to obtain it Shall we act
^ith stijl less foreMght, by cutting down the division of power
between the general and state governments, calculated to pro-
duce ihe fruit of moderation in both, that one may cram us with
the fruits of supremacy ?

How or when have co-ordinate political spheres existed, with
a sU{Nremacy in ome over the others ? The idea involves a con-
tradiction. Indeed, the regal sphere in England has often
attempted to reconcile it in various ways, and with temporary
success. Henry the 8th exercised a supremacy over the two
other spheres (at length by rebellions and civil wars rendered
co-ordinate,) strongly resembling that now claimed over the
state spheres ; and the blessings reaped from his success, and
the success of his daughter Mary, and of the Stuarts, in remo-
ving the evil of clashing powers, by the help, of supremacy,
were such as we shall reap by pursuing the same policy. It is
very true, that the federal and state courts may occasionally car-
ry on little wars with the weapons called injunction and habeas
•corpus, wlHcih both have an equal right to use ; but then these
weapons cannot shed blood, confiscate property, iior bum here-
ticks, as supremacy has frequently done; and besides, the states
can at any time force th^ combatants to lay down their arms.

The mutuality of the right of construction in the several
departments of the state and federal governments, was the
reason, which suggested the section of the constitution of the
United States requiring that, "the senators and representatives
^{ in congress, and the members of the several state legislatures,
**and all executim and judicial officers, both ef the United
T



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«» States, and of the several ^ates, shall be bound, by oath or
*« affirmation, to support the constitution.'' The mutuality of
the oath, by imposing a common duty, implies a common riglit;
because the duty cannot be discharged, except by exercising
. the right of construction. To impose the duty by the highest



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 14 of 34)