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Construction construed, and constitutions vindicated online

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sanction, and yet to have impliedly designed that its perfor-
mance should be rendered null and void, by a constructive
supremacy in one political sphere over thfe others, would
amount to the same thing, as if the oath had been, that the enu-
merated spheres should be subordinate to one, invested with
a supremacy over the rest Would this latter have been equi-
valent to the actual oathf? If not, can a construction by which
it is substantially enforced, be correct? By the actual oath, the
constitution, in conformity with its great principle of a di-
vision and co-ordinateness of powers between the state and
general governments, divides also its confidence for its own
preservation. The same confidence is divided by the special
powers invested in the states and in the general governinent
for its execution. If the oath binds the federal judicial power
to disregard a mandate from a state judicial power, prohibiting
the exercise of its constitutional powers ; it also binds the judi-
cial power of a state, to disregard a similar mandate from the
judicial power of the union ; and compels both to protect the
officers and individuals upon whom their respective jurisdic-
tions may operate: otherwise, one jurisdiction may supersedtb
the other. ^ This would be certainly a greater evil, than even a
necessity fdr a reference to the people to settle a collision.

If a greater spheric of action conferred supremacy according
to the constitution of the union, and if the federal governmezrt
possesses the greater sphere of action, (the positions upon which
the court relies as justifying its decision,) where was the neces-
sity for declaring the constitution and the laws made in pur-
suance thereof to be the supreme law of the land? The supre-
macy had passed^ as the court asserts, attached to the greater
sphere of action. If it was attached to this -greater sphere of
action, it is not bestowed by this clause; and yet this clause is
referred toby the court, as auxiliary to their implied supremacy.
In the several mixtures of truth and error to be found in the
opinion of the court, this has been managed with the most in-
genuity. The supremacy expressed has been united with the



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oupremacj implied, witiiout any examination of the nature of
the firstj or of its great difference from the latter. A govern-
ment of laws and not of men, is a definition of liberty ; a go-
vernment of men and not of laws, of despotism. The expressed
supremacy asserts the first principle; the implied supremacy of
the men composing the legislative or judicial federal depart-
ments, asserts the second. By blending them, their extreme con-
trariety is endeavoured to be obscured, and the clause confer-
ring supremacy on the constitution and the laws made in pursu*
Mn^e thereof, h very ingeniously changed from a restriction, into
an amplification of power. Yet it is under the supremacy con-
i*erred upon the constitution by this very clause, that the federal
judicial sphere exercises a controul over the federal legislative
sphere in the case of unconstitutional laws, because the differ- ^
ence between a supremacy of the constitution and a supremacy
in congress, is manifest; whilst the same coi^rt insists upon a
supremacy in. congress over the powers reserved to the states,
and 'denies to congress a supremacy over the powers delegated
to itself. This seems to me to be obviously incorrect, because
I consider the constitution to have derived from this clause an
absolute supremacy for the preservation of the powers reserved
to the states, as well as of those delegated to the general go-
vernment; and not as bestowing on any one spher^, state or
federal, an exclusive right to ascertain the extent of those pow-
ers ; such a right.being in fact a despotism of men.

Important as this subject is, to avoid prolixity, I shall over-
look sundry features of the constitution, and only add a few
observations to those already urged. A union of states clearly
admits the sovereignty and equality of the parties uniting. A
union does not, as a consequence of union, tacitly and impliedly^
reduce these sovereign and equal parties to subordinate corpo-
rations; because in that case, they could not alter or dissolve
the union, witliout the consent of the power, to which they
would be subordinate. The federal government is allowed by
the court to be limited. Can it be limited by a power subor-
dinate to itself or is it only limited by^the didactick lessons of
the constitution? The Federalist speaks of the jealousy which
would arise between the federal and state governments, because
they would be mutual checks upon each other, as co-ordinate
powers always struggle for sovereignty; and of the great secu-



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rity for a free government, arising from this feature of the con-
stitation. But a paramount or supreme power in congress
obliterates this feature. And of what avail is a preceptive
limitation, bereft of the co-ercive resource for its execution P If
congress be a paramount ^r supreme judge of its own legislative
power, its power is unlimited. We have no conception of an
unlimited power, beyond one, limited only by its own will. If
the jurisdiction of ihe svfpreme federal court is limited only
by. its own will, it is in like manner unlimited. Power can .
never be checked by itself, or by its own subordinate instru-
ment. The constitution certainly intended to invest the legis-
lative and judicial spheres of the federal and state govern-
ments, with distinct and independent objects of legislation and
^ cognizance ; but, these mutual rights however clear can never
be preserved, if one party possesses a supremacy over the other,
and the other, no power of resistance. Mr. Locke has some-
where said, << that no man has a right to that, which another
" has a right to take from him.*'

The art of melting up brass with gold, and calling the whole
mass gold, is not a new one. When good and bad principlea
are thus fused together, it requires some intellectual chymistry
to separate them. The court say, «* the result is a conviction
** that the states have no power by taxation or otherwi&e to retard,
" impede, burden or in any manner controul, the operations of
^ the eonsHtuHonal laws enacted by congress to carry into exe-
" cution the powers vested in congress. This we think the
** unavoidable consequence of the supremacy which the eonsti-
*' tution has declaredJ^^ The supremacy which the constitution
has declared ! This phraseology conveys a different idea from
" the supremacy of the constitution.'' The foregoing part of
the extract only amounts to an assertion, that congress have a
right to pass constitutional laws, and that the states have no
right to resist them. So far the metal is pure. But, instead of
declaring that these conclusions result from the powers dele-
gated to congress and prohibited to the states, they are said to
be " an unavoidable consequence of the supremacy which the
constitution has declared ;" as if it had declared any species
of. supremacy to which it was itself subordinate. Here lies
the essence of the question, and here the court are silent. They
have not informed us, whether the declared supremacy created



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a sphere able to legislate or to judge unconstitntiofiaHj' ; nor
pointed out the remedy, in case any such sphere should attempt
to do so. There is no duch question as the court have stated,
namely, whether constitutional laws are supreme or obligatory.
The true question is, whether any one political department is
invested with a supreme power of deciding, what laws are con-
stitutional, and of course obligatory. Now, if the supremacy
of the constitution be really the dedared supremacy, the court
ought to have ascertained the objects upon which it was intend-
ed to operate, in order to decide this true question. These
undoubtedly and principally are both the state and federal po-
litical departments or spheres, all of which being themselves
sijibordinate to the declared supremacy of the constitution, no
one could derive from that declaration a supremacy over the
rest; and what would be still more absurd, a supremacy over
the constitution itself, which would be involved in an exclusive
right of deciding upon the constitutionality of laws or judg-
ments. The declared supremacy of the constitution embraces
the rights reserved to the states, as well as those delegated to
the federal government ; and therefore, if the administrators of
the delegated rights derive from it any species of supremacy,
the administrators of the reserved rights must derive from iik
the same species of supremacy, because both are guaranteed
by the same sanction ; na^mcly, the supremacy of the consti-
tution.

That the phrase " the supremacy which the constitution has
declared^' was intended by the court to convey a very different
idea from " the supremacy of the constitution,'^ is demonstrated
by the following quotation from its t>pinion. " That the po\^er
*• to tojc involves the pk)Wer to destroy ; that the power to
« destroy may defeat and render useless the power to create;
«* that there is a plain repugnance in conferring on one govern-
** ment a power to controul the constitutional measures of ano-
" ther» which other, with respect to these very measures, is
** declared to be supreme over that which exerts the controiit,
"are propositions not to be denied." And yet I think that
idl of them are deniable or of no weight. It is deniedi that the
federal government is declared to be supreme over the state
governments. It is even denied, that the federa^government
is declared to be supreme in the escerciseof its constitutional



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powers, anj farther than the state governments are declared
. to be supreme in the exercise of their constitutional powers. It
is contended, that the constitution, and not either oC these go-
vernments is declared to be supreme, and that its supremacy
is an equivalent guaranty of the division of powers it has made.
And it is concluded under the arguments previously urged«
that the repugnance to the constitution is exactly the same,
whether the federal government shall controul the constitu-
tional measures of the state governments, or the state govern-
ments shall controul the constitutional measures of the federal
government It was to prevent evils thus repugnant to the
nature of the constitution, that the powers of each were made
co-ordinate, and a mutual right of construction delegated and
reserved. If the remedy be defeated, the repugnance follows.
The propositions «' that the power to t^x involves the power to
*' destroy, and that the power to destroy may defeat and render
** useless the power to create," appear to me to be both incor-
rect and irrelevant. Sliall not civil government tax, because a
power to tax may destroy? Have not both the state and federal
governments a power to tax ; can they therefore destroy ? Does
not our political system contain remedies against an abuse of
the power ta tax ? Can either government destroy by unconsti-
tutional laws or usurpations? If we have le^timate modes of
preventing it, why should an apparition terrify us into an aban-
donment of these modes ? May not a power in the federal go-
vernment to destroy state laws, defeat and render useless, the
state power to create laws? May it not defeat and render
useless, the power of the states to create a new constitution ?
How does a power to destroy, defeat and render useless a
power to create? Is not the destruction of the old, and the
creation of our new confederation,. a refutation of the assertion?
Did not this power reside, and does it not yet reside in the
states ? Is it not recognized by the constitution ? Pas not the
constitution by thjs recognition, and by depending on the states
for senators, and other materials for sustaining the federal go-
vernment, admitted the state power to destroy and create ? If
the states have this power, where is the danger of their exer-
cising it indirectly by opposing a constitutional law of congress ?
On the contrary, is, not their acknowledged power over the
constitution, a security for a temperate and conscientious op-



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position to anconstitutional laws? These general pr<.|K> itiins
therefore, do not prove tl;eir conclusion of a supremacy in the
general government over the state governments; but tlie first,
however irrelative in its present shape, inaj, by a small altera-^
tion be rendered extremely applicable. A power to prohibit a
government from taxing involves Ihe power of destroying tli*lr
government. If congress may take from the states, -bjTvirtu^
of the spurious supremacy assigned to it, one objec^^of taxation,
they may take away all ; and I know of no better Veapons to
be employed by co ordinate powers, always struggling for su-
premacy, than a right in one and not in the other, to wi'tbdraw
from its competitor, by corporations, subjects of taxation.^ >.

But this argument is foreseen and opposed in the T>pinion of the
court That opinion declares, that "all subjects over which the
<' sovereign power of the state extends are objects of taxation ;
<^but those, over which it does not extend, are upon the soundest
" principles, exempt from taxation. The sovereignty of a state
•* extends to every thing which exists by its own authority,
'*or is introduced by its permission ; but does not extend to
•*tlie means employed by congress to cany into execution-
*» powers conferred on tliat body by the people of the United
«• States. We find on just theory a total failure of the original
f right to tax the means employed by the government of the
•« union, for the execution of it^ powers. The piinciple for
" which the state of Maryland contends, is capable of' arresting
**all the measures of tlie general government, and of prostra^
**ting U nt the foot of the states." If I understand the asser-
tions of this extract, (as to which I am extremely doubtful,)
they either apply against the paramount or supreme power
claimed for the federal government, or are incorrect in point
of fact. ** All subjects, over, which the sovei-eign powers of the
'• state extends, are objects of taxation.'^ Whether sovereignty
be natural or conventional, 1 have endeavoured to prove, that it
resides in the people of each staie. The conventional sove-
reignty created in each state, e^ibraced 2kxA extended to every
species of property, real, personal and mixed. Therefore, pio-
perty of every kind was an object of taxation before the con-
federation. Have the states relinquished by that compact a
right to tax any species of property, except imports and exports ?
If not, as the sovereignty of the states extends to all internal



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praptHy, and as i^l objects to which UJocs eMe4^ are ol^^eis
^ of taxatiottt a conclusion adverse to the conclusion of the court
is unavoidable. To avoid it» the court subjoin, that which
they seem to consider as a new and explanatory position.
«* The sovei^ignty of a state es^tends io every thii^ which exi^
Jts own authority, or is introduced by its permission ; but
'doe^M^uUend to the means employed by congress to carry
'* into execution powers conferred on that body by the people
«*of the Ignited States." The first member of this assertion
is merew a repetition of the idea tf sovereignty, as whatever
it ext^fuds to, may be said to ejcist by its authority. Hence,, the
observations just urged apply to this modification of the san^e
idea; to which it may be added, that property, so far as it is a
conventional or social right, may be said to exist by the autho-
rity of the sovereign power,, with peculiar propriety. So far,
the positions of the court seem to be ccmclusive agu^st its
decision. But here a new, authoritative, and uncons^que;itial
assertion is advanced. "The sovereignty of a state does not
*< extend to the means employed by congress to carry into exe-
•* cutien the powers conferred on that body by the people of tjie
" United States." What! not if these means contractor
destroy the state sovereign right of internal government? It
is difficult to discern, what is meant by the inexplicit word
" means," nor could any have been selected, more suitable for
establishing a precedent without limits, and a judicial supremacy
vrithout controul. If it includes men or property, so far as
congress may employ either as means for executing its powers
then the assertion is incorrect ; because, the sovereignty, of the
states does extend both to men and property thus used as meam.
If afedenal judge commits a crime or incurs a debt, he js
amenable to the jurisdictions of state sovereignties. All resi-
dent federal officers are liable to pay a state poll tax, and the
taxes imposed for supporting the poor, and keeping up roads and
bridges. The property, real and personal, of all these descrip-
tions of persons, to which we may add the president and membeiis
of congress, is liable to state taxation, and their persons exposed
to state jurisdictions. Are none of these persons means employed
by congress ? If they are, where is the distinction to be found
in our system of gove^ment, under which all the means
e^r^ssed^ to be employed for its own execution, imports



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ezce]pt^» are left as tbey were founds exposed to state sove-
^teigatj, by which uii(|er cover o( implied means, congress maj
remove dther persons or property, beyond the reach of state
sovereignty ; and liberate them from its cognijutnee, whilst
both themselves and their property remained subordinate to it ?
Are bankers more worthy means to be employed for executing
the constitution than judges ?

But, suppose we admit « that the state sovereignty does n^
extend to means either expressed or implied, employed by con-
gres8,"and allow that banking may be correctly numbered amcH^
the latter ; I would ask, whether it is the persons or the property^
the bankers, which are thus absolved from state allegiance, and
excluded from state jurisdiction? If the former, they may be
killed wift impunity ; if the latter, it may be plundered with- .
out redress. The federal government have no junsdiction as
to local wrongs, and the states can have no jurisdicticm as to
objects over which they have no sovereignty. If, however, they
do possess a sovereignty, able to protect persons and property,
^though employed by congress as means to effect ends, that
sovereignty extends to taxation, as protection and contribution
are reciprocal political principles, and it would be unjust to the
rest of society, to establish a sub-society, entitled to tiie one
and absolved from the other.

Far from admitting, however, a position which would produce
such consequences, I contend that the state sovereignty ex-
tends to all the means which congress can employ. It is ne-
cessaty to protect the lives, the limbs, and the reputations even
of the standing army; and to secure every atom of property,
from which the federal government can extract resources.
'Except for the protection of state soverei^ty, even imposts
would ML Whatever is not a subject of a sovereignty, is not
entitled to its protection. Congress cannot pass a municipal
law to protect persons or property, because the federal go*
vemment is in no respect a sovereignty. Private property
exists by, and is subject to state sovereignty. With this opi-
nion the Federalist, formerly quoted, when explaining the con*
current power of the state and federal governments, as means
for effecting the ends respectively eonfided to them, explicitly
concurs. To me it seems, that the two governments are de-
signedly blended and interwoven with each other, that each
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may contribute towards the prcsenratioii of the other j wid Oat
a cWm of independence, sovereignty or supremacy* in fftvoar
of one, is unfriendly to the federal constitution in general, and
to the federal government in particular. If thi» be true, is
there not something invidious and reprehensible in this ex-
pression used by the court ? •« The principle for which the
** state of Maryland contends, is capable of arresting all the
" measures of the general government, inA of prostrating it ai
•« the foot of the states." Without enlarging upon the fact,
that the federal government is dependent upon the states for
its existence, this principle may be compared with that con<-
tended for by the court. The state of Maryland contends for
its original and reserved right to tax property. The court
asserts, that congress by creating corporations may diminish or
destroy the state resource for raising revenue, co-extcnsively
with its own pleasure. By the first principle, the pecuniary
resources for sustaining the federal government are untouched ;
by the second, those of the states become dependent on iht
federal government. By the first, the power of both goVem*
ments, either original or delegated, as to revenue, remains con*
current ; by the second, congress assumes a power of placing
Whatever property it pleases beyond the reach of contribution
for the support of either. By the first, a sovereignty which
created private property, retains its rights ; by the second, a
right is claimed on behalf of a spurious sovereignty to creati^
private property, or rather to rob the legitimate sovereignty of
that which it had previously created. If congress be indeed a
limited sphere, as the court admit, it can neither create private
property, nor absolve it from taxation, because these are attri*
foutes of sovereign, and not of limited spheres. Let the reader
consider whether the principle of the court is not capable, in
theory, of arresting all the measures of the state governments
and prostratHng them at the foot of congress, I say in theory,
because I trust that in practice, all efforts for rendering these
departments, equally necessary for our liberty and prosperity,
jealous of, or hostile to each other, will be unsuccessful; and
that both will cultivjite, not the means of acquiring a paramount
or supreme power over each othei> but thos^ f(dfr advancing tfie
pubiick happiness.



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' But the court, ioBtead of caafiding in the argmnenti which
1 imve attaxq>ted to examine, endeavour to supersede them all,
bj observing that " the legislature of the union con htrtrusUd
^ tytke people with the power of aontrouling mea$ures whidt'
* eone^m M, with the confidence ^t it will not be abused."
Can be trusted by the peopfo / The rdterated attempts to distin-
gtttsh between the pe^^ and the states, to sootti and flatter
the former by com[^iments to their elective si^ad^* and bj
iosidiona blandishments to seduce them from the substantial
ground of checks and balances, into the intricate and slippcay *
|Mths of passion and confidence, are sufficient to awaken all
the v%ilance of those who believe, that pow^ must be divided^
limited and controuled, to keep it within bounds. In its every
^etch, it uniformly solicits tiie popular confidence by protes-
tations, of integrity and promises of moderation. But, in con-
aidering the rights under the constitution of the federal and
state governments, an estimate of the confidence due to either
ia certainly inapplicable to the subject, and productive of a
nalevdence, to be deprecated as ^e greatest national misfor-
tune. Shall we exchange our constitutional compact, for a
successimi of artifices to win pop^Jar favour, or to take advan-
tage of popular folly? Is not uxk appeal from an inv^tigation
of constitutional principles, to an estimate of fluctuating popu-
lar confidence, an ackiKiwledgement of diffidence in the argu-
ments previously advanced ? If, however, a scramble for popu-
larity is to be substituted for a limitation of powers^ let us
beware how we stake the federal government upon the event of
the confusion. Mr. Itf adison, p. 252 of the Federalist, has
observed, that. '< the powers delegated to the federal goveriunent;
« are few and defined. Those, which remain to the state
** governments, are numerous and indefinite, and extend to all
«Vthe. o^eets which, in the ordinary course of aSSurs, concern
** the Uves, liberties, and properties of the people." And in^
page 251, << the state governments may be regarded as consti*
*' tumt and ^senHal parts of the federal government; whilst
^ the latter is in no wise essential to the operation or organiza-f



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 15 of 34)