JAN. 27, 1830.] Mr. Foot's Resolution. [SENATE. Sir, these are good sound "Carolina doctrines," and if the gentleman finds reason to abandon them now, we cannot consent to go with him. I did not consider that bill as committing those who sup- might be doubted, whether Congress would not be actported it, for or against any system of Internal Improve- ing somewhat against the spirit and intention of the conment, that I voted against every amendment calculated to stitution, in exercising a power to control essentially the give any expression of opinion, one way or the other. I pursuits and occupations of individuals, not as incidental was unwilling to deprive it of the character which it bore to the exercise of any other power, but as a substantial on its face, as a measure intended merely to bring before and direct power. If such changes were wrought incithe public in a single view, the entire scheme, so as to en-dentally only, and were the necessary consequence of able us to judge of its practicability and expediency. Sir, such imposts as Congress, for the leading purpose of rein all these views and expectations I was deceived. By venue, should enact, then they could not be complained the year 1826, it came to be fully understood that these of. But he doubted whether Congress fairly possessed surveys were never to be finished, and that fifty thousand the power of turning the incident into the principal; and, dollars per annum was to be appropriated, merely to give instead of leaving manufactures to the protection of such popularity to the system, by feeding the hopes of the peo- laws as should be passed with a primary regard to reveple in all parts of the country. In the mean time, too, nue, of enacting laws with the avowed object of giving appropriations were made, and new works commenced, a preference to particular manufactures," &c. just as if no surveys were going on. Sir, as soon as I discovered the true character of the survey bill, I opposed it openly on this floor, and have since constantly voted against all appropriations for surveys. Sir, as to the sys- We have been often reproached, sir, with lending our tem of Internal Improvement, my first impressions against aid to some of the most obnoxious provisions of the tariff it were fully confirmed very soon after I took my seat of 1828. What was the fact? Not an amendment was here, and (except in cases which I consider as exceptions put into that bill here which did not go to reduce the dufrom the general rule) I have uniformly voted against all ties. That bill came to the Senate in a form in which it appropriations for Internal Improvements, against the was known that it could not pass. Gentlemen who would Cumberland road, the Chesapeake and Delaware canal, not vote for it, in that shape, but who wished it to pass, and all other works of a similar character. But, sir, if called upon us to aid them in amending it, to suit their the South, or the statesmen of the South, had committed own purposes. Sir, if we had lent our aid to such an obthemselves ever so deeply on this subject, does the gen- ject we would have deserved any fate that could have tleman from Massachusetts suppose it would afford any befallen us. We proceeded throughout on the open and excuse for their continued support of a system conducted avowed ground of hostility to the whole system, and on principles which now manifestly appear to be as uncon- acted accordingly. stitutional as they are unequal and unjust? Surely not. To disprove my observations, that the New England The gentleman has made his defence for his conduct in members generally did not support Internal Improverelation to the tariff of 1828. He considers the coun- ments in the West, before the memorable era, the winter try as being committed by the tariff of 1824 to go on of 1825, the gentleman quoted two votes, in 1820 and with the system. Sir, we wholly deny that the country is, 1821, reducing the price, or extending the time of payin any way, committed, or that Congress could commit it ment for the public lands. Now, sir, the only objection on such a subject, much less to the support of a ru nous, to his authority is, that it has no manner of relation to the unjust, and unconstitutional policy. But how, if such a point in dispute. I stated that New England did not supcommittal were possible, could the imposition of a duty port Internal Improvements, as a branch of the American of twenty or thirty per cent. commit us to the imposition system, before 1825. The gentleman proves that, on of duties of fifty or one hundred? The gentleman is mis-two occasions, they voted for certain measures in relation taken in supposing that I charged him with having, in to the public lands--measures which I had always sup1820, denounced the tariff as "utterly unconstitutional;" posed had been forced upon Congress by motives of inI stated that he had called its constitutionality in question. terest, but which, whatever may have been their character, I have now before me the proceedings of the Boston do not touch the point in dispute in the smallest degree. Í meeting, to which I referred, and will read them, that think this mode of meeting my argument, however crethere may be no mistake on the subject. In the resolu- ditable to the gentleman's ingenuity, amounts to an actions reported by a committee, (of which Mr. W. was a knowledgment that it is unanswerable. member) it was, among other things, The gentleman complains of his arguments having been 1. "Resolved, That no objection ought ever to be made misunderstood in relation to consolidation. He thinks my to any amount of taxes equally apportioned, and imposed misapprehension almost miraculous in treating his as an for the purpose of raising revenue necessary for the sup- argument in favor of the "consolidation of the Governport of the Government; but that taxes imposed on the ment." Now, sir, what was the point in dispute between people for the benefit of any one class of men [the manu- us? I had deprecated the consolidation of the Govern facturers] are equally inconsistent with the principles of the constitution and with sound policy." 2. "Resolved, That, in our opinion, the proposed tariff, and the principles on which it is avowedly founded, would, if adopted, have a tendency, however different may be the motives of those who recommend them, to diminish the industry, impede the prosperity, and corrupt the morals of the people." ment. I said not one word against the "consolidation of the Union." I went further, and pointed out, and deprecated some of the means, by which this consolidation was to be brought about. The gentleman gets up and attacks my argument at every point, ridicules our fears about "consolidation," and finally reads a passage from a letter of General Washington's, stating that one of the objects of the constitution was "the consolidation of the Mr. WEBSTER said, at that meeting, in support of these Union." Surely, sir, under these circumstances, I was anti-tariff resolutions (which were unanimously adopted) not mistaken in saying, that the authority quoted did not "There is a power in names; and those who had press- apply to the case, as the point in dispute was the "coned the tariff on Congress and on the country, had repre-solidation of the Government," and not of "the Union." sented it as immediately, and almost exclusively connect- But, sir, the gentleman has relieved me from all embared with domestic industry, and national independence. rassment on this point, by going fully into the examinaIn his opinion, no measure could prove more injurious to tion of the Virginia doctrines of '98; and while he dethe industry of the country, and nothing was more fanci- nounces them, giving us his own views of the power of ful than the opinion, that national independence render the Federal Government; views which, in my humble ed such a measure necessary. He certainly thought it judgment, stop nothing short of the consolidation of all SENATE.] Mr. Foot's Resolution. [JAN. 27, 1830. power in the hands of the Federal Government. Sir, from the nature of the compact, I aver that not a single when I last touched on this topic, I did little more than argument can be urged in support of such an inference, quote the high authorities on which our doctrines rest; in favor of the Federal Government, which would not apAll but, after the elaborate argument which we have just ply, with at least equal force, in favor of a State. heard from the gentleman from Massachusetts, it cannot sovereigns are of necessity equal; and any one State, howbe supposed that I can suffer them to go to the world ever small in population or territory, has the same rights unanswered. I entreat the Senate, therefore, to bear as the rest, just as the most insignificant nation in Europe with me, while I go over, as briefly as possible, the most is as much sovereign as France, or Russia, or England. prominent arguments of the gentleman. The very idea of a division of power by compact, is The proposition which I laid down, and from which the destroyed by a right claimed and exercised by either to gentleman dissents, is taken from the Virginia resolutions be the exclusive interpreter of the instrument. Power is of '98, and is in these words: "that in case of a delibe- not divided, where one of the parties can arbitrarily derate, palpable, and dangerous exercise by the Federal termine its limits. A compact between two, with a right Government of powers not granted by the compact, [the reserved to one to expound the instrument according to constitution] the States who are parties thereto have a his own pleasure, is no compact at all, but an absolute right to interpose, for arresting the progress of the evil, surrender of the whole subject matter to the arbitrary and for maintaining, within their respective limits, the au- discretion of the party who is constituted the judge. This thorities, rights, and liberties, appertaining to them." The is so obvious, that, in the conduct of human affairs begentleman insists that the States have no right to decide tween man and man, a common superior is always looked whether the constitution has been violated by acts of Con- to as the expounder of contracts. But if there be no gress or not, but that the Federal Government is the ex- common superior, it results, from the very nature of clusive judge of the extent of its own powers; and that, things, that the parties must be their own judges. This in case of a violation of the constitution, however "deli-is admitted to be the case where treaties are formed beberate, palpable, and dangerous," a State has no consti- tween independent nations; and, if the same rule does not tutional redress, except where the matter can be brought apply to the federal compact, it must be because the Fede before the Supreme Court, whose decision must be final ral is superior to the State Government, or because the and conclusive on the subject. Having thus distinctly States have surrendered their sovereignty. Neither stated the points in dispute between the gentleman and branch of this proposition can be maintained for a momyself, I proceed to examine them. And here it will be ment. I have already shown that all sovereigns must, as necessary to go back to the origin of the Federal Govern- such, be equal. It only remains therefore to inquire ment. It cannot be doubted, and is not denied, that, be- whether the States have surrendered their sovereignty, fore the formation of the constitution, each State was an and consented to reduce themselves to mere corporations. independent sovereignty, possessing all the rights and The whole form and structure of the Federal Governpowers appertaining to independent nations; nor can it ment, the opinions of the framers of the constitution, be denied that, after the constitution was formed, they and the organization of the State Governments, demonremained equally sovereign and independent, as to all strate that, though the States have surrendered certain powers not expressly delegated to the Federal Govern-specific powers, they have not surrendered their sovement. This would have been the case, even if no posi- reignty. They have each an independent Legislature, tive provision to that effect had been inserted in that in- Executive, and Judiciary, and exercise jurisdiction over strument. But to remove all doubt, it is expressly de- the lives and property of their citizens. They have, it is clared, by the tenth article of the amendments of the consti- true, voluntarily restrained themselves from doing certain tution, that "the powers not delegated to the United States acts, but, in all other respects, they are as omnipotent as by the constitution, nor prohibited by it to the States, are any independent nation whatever. Here, however, we reserved to the States, respectively, or to the people." are met by the argument, that the constitution was not The true nature of the Federal constitution, therefore, is, formed by the States in their sovereign capacity, but by (in the language of Mr. Madison) "a compact to which the people; and it is therefore inferred that, the Federal the States are parties"--a compact by which each State, Government being created by all the people, must be suacting in its sovereign capacity, has entered into an agree-preme; and though it is not contended that the constitument with the other States, by which they have consent- tion may be rightfully violated, yet it is insisted that from ed that certain designated powers shall be exercised by the decision of the Federal Government there can be no the United States, in the manner prescribed in the instru- appeal. It is obvious that this argument rests on the idea ment. Nothing can be clearer, than that, under such a of State inferiority. Considering the Federal Governsystem, the Federal Government, exercising strictly de- ment as one whole, and the States merely as component legated powers, can have no right to act beyond the pale parts, it follows, of course, that the former is as much suof its authority, and that all such acts are void. A State, perior to the latter as the whole is to the parts of which on the contrary, retaining all powers not expressly given it is composed. Instead of deriving power by delegation away, may lawfully act in all cases where she has not vo- from the States to the Union, this scheme seems to imply luntarily imposed restrictions on herself. Here, then, is that the individual States derive their power from the a case of a compact between sovereigns; and the question United States, just as petty corporations may exercise so arises, What is the remedy for a clear violation of its ex- much power, and no more, as their superior may permit press terms by one of the parties? And here the plain ob- them to enjoy. This notion is entirely at variance with vious dictate of common sense is in strict conformity with all our conceptions of State rights, as those rights were the understanding of mankind, and the practice of nations understood by Mr. Madison and others, at the time the in all analogous cases; "that, where resort can be had to constitution was framed. I deny that the constitution no common superior, the parties to the compact must, was framed by the people in the sense in which that word themselves, be the rightful judges whether the bargain is used on the other side, and insist that it was framed by has been pursued or violated." (Madison's Report, p. 20.) the States acting in their sovereign capacity. When, in When it is insisted by the gentleman that one of the par- the preamble of the constitution, we find the words, “we ties (the Federal Government) "has the power of de- the people of the United States," it is clear they can only ciding ultimately and conclusively upon the extent of its relate to the people as citizens of the several States, beown authority," I ask for the grant of such a power. I cause the Federal Government was not then in existence. call upon the gentleman to show it to me in the constitu- We accordingly find, in every part of that instrument, tion. It is not to be found there. If it is to be inferred that the people are always spoken of in that sense. Thus, [SENATE. in the second section of the first article it is declared, may be of sufficient magnitude to require their interpothat "the House of Representatives shall be composed of sition." 66 members chosen every second year, by the people of the But, the gentleman insists that the tribunal provided by several States." To show that, in entering into this com- the constitution for the decision of controversies between pact, the States acted in their sovereign capacity, and the States and the Federal Government, is the Supreme not merely as parts of one great community, what can Court. And here again I call for the authority on which be more conclusive than the historical fact that, when the gentleman rests the assertion, that the Supreme Court every State had consented to it except one, she was not held has any jurisdiction whatever over questions of sovereignto be bound? A majority of the people in any State bound ty between the States and the United States. that State, but nine-tenths of all the people of the United look into the constitution we do not find it there. I put When we States could not bind the people of Rhode Island, until entirely out of view any act of Congress on the subject. Rhode Island, as a State, had consented to the compact. We are not looking into the laws, but the constitution. It cannot be denied that, at the time the constitution was It is clear that questions of sovereignty are not the proframed, the people of the United States were members of per subjects of judicial investigation. They are much too regularly organized Governments, citizens of independent large, and of too delicate a nature, to be brought within States; and unless these State Governments had been dis- the jurisdiction of a court of justice. Courts, whether susolved, it was impossible that the people could have enter- preme or subordinate, are the mere creatures of the soveed into any compact but as citizens of these States. Sup-reign power designed to expound and carry into effect its pose an assent to the constitution had been given by all sovereign will. No independent State ever yet submitted the people within a certain district of any State, but that to a Judge on the bench, the true construction of the comthe State, in its sovereign capacity, had refused its assent: pact between himself and another sovereign. All courts Would the people of that district have become citizens of may incidentally take cognizance of treaties, where rights the United States? Surely not. It is clear, then, that in adopt-are claimed under them; but who ever heard of a court ing the constitution, the people did not act, and could not making an inquiry into the authority of the agents of the have acted, in any other character than as citizens of their high contracting parties to make the treaty-whether its respective States. And if, on the adoption of the consti- terms had been fulfilled, or whether it had become void, tution, they became citizens of the United States, it was on account of a breach of its conditions on either side? All only by virtue of that clause in the constitution which de- these are political, and not judicial questions. Some reclares that "the citizens of each State shall be entitled to liance has been placed on those provisions of the constituall privileges and immunities of citizens in the several tion which constitute States." In choosing members to the convention, the provide that "the judicial power shall extend to all cases one Supreme Court;" which States acted through their Legislatures, by whose authori- in law and equity arising under this constitution, the laws ty the constitution, when framed, was submitted for ratifi- of the United States, and treaties;" and which declare cation to conventions of the people, the usual and most that "this constitution, and the laws of the United States appropriate organ of the sovereign will. I am not dis- which shall be made in pursuance thereof, and all treaties, posed to dwell longer on this point, which does ap- &c. shall be the supreme law of the land," &c. Now, as pear to my mind to be too clear to admit of controversy. to the name of the Supreme Court, it is clear that the But I will quote from Mr. Madison's report, which goes term has relation only to its supremacy over the inferior the whole length in support of the doctrines for which courts provided for by the constitution, and has no referhave contended: ence whatever to any supremacy over the sovereign States. "The other position involved in this branch of the reso- The words are, "The judicial power of the United States iution, namely: that the States are parties to the consti- shall be vested in one Supreme Court, and such inferior tution, or compact,' is, in the judgment of the Committee, courts as the Congress may, from time to time, ordain and equally free from objection. It is indeed true, that the establish," &c. Though jurisdiction is given "in cases aristerm 'States' is sometimes used in a vague sense, and ing under the constitution," yet it is expressly limited to sometimes in different senses, according to the subject to cases in law and equity," showing conclusively that this which it is applied. Thus, it sometimes means the sepa- jurisdiction was incidental merely to the ordinary adminisrate sections of territory occupied by the political socie-tration of justice, and not intended to touch high questions ties within each; sometimes the particular governments of conflicting sovereignty. When it is declared that the established by those societies; sometimes those societies constitution, and the laws of the United States made in as organized into those particular governments; and, lastly, pursuance thereof, shall be the supreme law of the land, it means the people composing those political societies, in it is manifest that no indication is given either as to the their highest sovereign capacity. Although it might be power of the Supreme Court to bind the States by its dewished that the perfection of language admitted of less di- cisions, nor as to the course to be pursued in the event of versity in the signification of the same words, yet little in-laws being passed not in pursuance of the constitution. convenience is produced by it where the true sense can And I beg leave to call gentlemen's attention to the strikbe collected with certainty from the different applications. ing fact, that the powers of the Supreme Court, in relation In the present instance, whatever different constructions to questions arising under the laws and the constituof the term 'States,' in the resolution, may have been en- tion, are co-extensive with those arising under treaties. tertained, all will at least concur in that last mentioned; In all of these cases the power is limited to questions arising because, in that sense the constitution was submitted to "in law and equity," that is to say, to cases where juristhe States;' in that sense the 'States' ratified it; and in diction is incidentally acquired in the ordinary administrathat sense of the term 'States,' they are consequently tion of justice. But, as with regard to treaties, the Suparties to the compact, from which the powers of the preme Court has never assumed jurisdiction over quesFederal Government result." tions arising between the sovereigns who are parties to it, Having now established the position that the constitu- so under the constitution they cannot assume jurisdiction tion was a compact between sovereign and independent over questions arising between the individual States and States, having no common superior, it follows, of neces- the United States. I sity, (to borrow the language of Mr. Madison) "that If they should do so, they would be acting entirely out there can be no tribunal above their authority to decide, in the last resort, whether the compact made by them be violated, and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as of their sphere. Umpires are indeed sometimes appointed by special agreement, but, in the case before us, there can be no pretence that the Supreme Court have been specially constituted umpires. But, if the judiciary are, from SENATE.] Mr. Foot's Resolution. The reso "However true, therefore, it may be, that the Judicial Department is, in all questions submitted to it by the forms of the constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the Government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very constitution which all were instituted to preserve.” [JAN. 27, 1830. their character and the peculiar scope of their duties, un- the other departments, not carried by the forms of the fit for the high office of deciding questions of sovereignty, constitution before the Judiciary, must be equally authorimuch more strongly is the Supreme Court disqualified tative and final with the decisions of that department. from assuming the umpirage between the States and the But the proper answer to the objection is, that the resoUnited States; because it is created by, and is indeed lution of the General Assembly relates to those great and merely one of the departments of, the Federal Government. extraordinary cases in which all the forms of the conThe United States have a Supreme Court; each State has stitution may prove ineffectual against infractions dangeralso its Supreme Court. Both of them, in the ordinary ous to the essential rights of the parties to it. administration of justice, must of necessity decide on the lution supposes that dangerous powers, not delegated, may constitutionality of laws; but when it becomes a question not only be usurped and executed by the other departof sovereignty between these two independent Governments, but that the Judicial Department also may exercise ments, the subject matter is equally removed from the ju- or sanction dangerous powers beyond the grant of the conrisdiction of both. If the Supreme Court of the United stitution, and consequently, that the ultimate right of the States can take cognizance of such a question, so can the parties to the constitution to judge whether the compact Supreme Courts of the States. But, sir, can it be sup- has been dangerously violated, must extend to violations posed for a moment, that, when the States proceeded to en- by one delegated authority, as well as by another--by the ter into the compact, called the constitution of the United Judiciary as well as by the Executive or Legislative. States, they could have designed, nay, that they could, under any circumstances, have consented to leave to a court to be created by the Federal Government, the power to decide, finally, on the extent of the powers of the latter, and the limitations on the powers of the former? If it had been designed to do so, it would have been so declared, and assuredly some provision would have been made to secure, as umpires, a tribunal somewhat differently constituted from that whose appropriate duties is the ordinary administration of justice. But to prove, as I think conclusively, that the Judiciary were not designed to act as umpires, it is only necessary to observe that, in a great majority of cases, that court could manifestly not take jurisdiction of the matters in dispute. Whenever it may be designed by the Federal Government to commit a If, then, the Supreme Court are not, and, from their orviolation of the constitution, it can be done, and always ganization, cannot, be the umpires in questions of conwill be done, in such a manner as to deprive the court of flicting sovereignty, the next point to be considered is, all jurisdiction over the subject. Take the case of the whether Congress themselves possess the right of decidtariff and internal improvements; whether constitutional or ing conclusively on the extent of their own powers. This unconstitutional, it is admitted that the Supreme Court I know is a popular notion, and it is founded on the idea have no jurisdiction. Suppose Congress should, for the that, as all the States are represented here, nothing can acknowledged purpose of making an equal distribution of prevail which is not in conformity with the will of the mathe property of the country, among States or individuals, jority; and it is supposed to be a republican maxim "that proceed to lay taxes to the amount of fifty millions of dol- the majority must govern." Now, sir, I admit that much lars a year. Could the Supreme Court take cognizance of care has been taken to secure the States and the people the act laying the tax, or making the distribution? Certainly from rash and unadvised legislation. The organization of not. Take another case, which is very likely to occur. Con- two houses, the one the Representatives of the States, gress have the unlimited power of taxation. Suppose and the other of the people, manifest an anxiety to secure them also to assume an unlimited power of appropriation. equality and justice in the operation of the federal system. Appropriations of money are made to establish presses, But all this has done no more than to secure us against promote education, build and support churches, create an any laws but such as should be assented to by a majority order of nobility, or any other unconstitutional object; it of the Representatives in the two Houses of Congress. is manifest that, in none of these cases, could the consti- Now will any one contend that it is the true spirit of tutionality of the laws making those grants be tested be- this Government that the will of a majority of Congress fore the Supreme Court. It would be in vain that a State should, in all cases, be the supreme law? If no security should come before the judges with an act appropriating was intended to be provided for the rights of the States, money to any of these objects, and ask of the court to and the liberty of the citizen, beyond the mere organizadecide whether these grants were constitutional. They tion of the Federal Government, we should have had no could not even be heard; the court would say, they had written constitution, but Congress would have been aunothing to do with it; and they would say rightly. It is thorized to legislate for us, in all cases whatsoever; and idle, therefore, to talk of the Supreme Court affording the acts of our State Legislatures, like those of the preany security to the States, in cases where their rights may sent legislative councils in the Territories, would have be violated by the exercise of unconstitutional powers, been subjected to the revision and control of Congress. If on the part of the Federal Government. On this subject the will of a majority of Congress is to be the supreme Mr. Madison, in his report, says: "But it is objected, law of the land, it is clear the constitution is a dead letthat the judicial authority is to be regarded as the sole ter, and has utterly failed of the very object for which it expositor of the constitution in the last resort; and it was designed--the protection of the rights of the minorimay be asked, for what reason the declaration by the Gene-ty. But when, by the very terms of the compact, strict ral Assembly, supposing it to be theoretically true, could limitations are imposed on every branch of the Federal be required at the present day, and in so solemn a manner? Government, and it is, moreover, expressly declared that On this objection it might be observed, first, that all powers, not granted to them, are reserved to the there may be instances of usurped power, which the States or to the people," with what show of reason can it forms of the constitution would never draw within the be contended that the Federal Government is to be the control of the Judicial Department: Secondly, that, if the exclusive judge of the extent of its own powers? A decision of the Judiciary be raised above the authority of written constitution was resorted to in this country, as a the sovereign parties to the constitution, the decisions of great experiment, for the purpose of ascertaining how JAN. 27, 1830.] 66 far the rights of a minority could be secured against the en-tent, of determining the limits of their own powers-it croachments of majorities-often acting under party excite-is incident to all sovereignty. Now, have they given ment, and not unfrequently under the influence of strong away that right, or agreed to limit or restrict it in any interests. The moment that constitution was formed, respect? Assuredly not. They have agreed that certain the will of the majority ceased to be the law, except in specific powers shall be exercised by the Federal Governcases that should be acknowledged by the parties to it, ment; but the moment that covernment steps beyond the to be within the constitution, and to have been thereby limits of its charter, the right of the States "to interpose submitted to their will. But when Congress (exercising for arresting the progress of the evil, and for maintaining, a delegated and strictly limited authority) pass beyond within their respective limits, the authorities, rights, and these limits, their acts become null and void, and must be liberties, appertaining to them," is as full and complete declared to be so by the courts, in cases within their jurisdic- as it was before the constitution was formed. It was pletion; and may be pronounced to be so by the States them-nary then, and never having been surrendered, must be selves, in cases not within the jurisdiction of the courts, or plenary now. But what then, asks the gentleman? A of sufficient importance to justify such an interference. I State is brought into collision with the United States, in will put the case strongly. Suppose, in the language of Mr. relation to the exercise of unconstitutional powers: who Jefferson, the Federal Government, in its three ruling is to decide between them? Sir, it is the common case of branches, should (at some future day) be found to be in difference of opinion between sovereigns as to the true combination to strip their colleagues, the State authorities, construction of a compact. Does such a difference of of the powers reserved by them, and to exercise them- opinion necessarily produce war? No. And if not, among selves all powers, foreign and domestic,” would there be rival nations, why should it do so among friendly States? no constitutional remedy against such an usurpation? If so, In all such cases, some mode must be devised by mutual then Congress is supreme, and your constitution is not agreement, for settling the difficulty; and most happily for worth the parchment on which it is written. What the us, that mode is clearly indicated in the constitution itgentleman calls the right of revolution would exist, and self, and results, indeed, from the very form and struccould be exerted as well, without a constitution as with it.ture of the Government. The creating power is threeIt is in vain to tell us that all the States are represent-fourths of the States. By their decision, the parties to ed here. Representation may, or may not, afford securi- the compact have agreed to be bound, even to the extent ty to the people. The only practical security against op- of changing the entire form of the Government itself; pression, in representative Governments, is to be found in and it follows, of necessity, that, in case of a deliberate this, that those who impose the burthens are compelled to and settled difference of opinion between the parties to share them. Where there are conflicting interests, how-the compact, as to the extent of the powers of either, reever, and a majority are enabled to impose burthens on sort must be had to their common superior-(that power the minority, for their own advantage, it is obvious that which may give any character to the constitution they representation, on the part of that minority, can have no may think proper) viz: three-fourths of the States. This other effect than to "furnish an apology for the injustice." is the view of the matter taken by Mr. Jefferson himself, What security would a representation of the American who, in 1821, expressed himself in this emphatic manner: colonies in the British Parliament have afforded to our "It is a fatal heresy to suppose that either our State Goancestors? What would be the value of a West India re-vernments are superior to the Federal, or the Federal to presentation there now? Of what value is our represen- the State; neither is authorized literally to decide what tation here, on questions connected with the "American belongs to itself, or its co-partner in government, in differSystem," where (to use the strong language of a dis-ence of opinion between their different sets of public sertinguished statesman) the "imposition is laid, not by the vants; the appeal is to neither, but to their employers, Representatives of those who pay the tax, but by the peaceably assembled by their representatives in convenRepresentatives of those who are to receive the bounty?" tion." Sir, representation will afford us ample security, if the But it has been asked, why not compel a State, objectFederal Government shall be strictly confined within ing to the constitutionality of a law, to appeal to her sisthe limits prescribed by the constitution, and if, limiting ter States, by a proposition to amend the constitution? its action to matters in which all have a common interest, I answer, because such a course would, in the first inthe system shall be made to operate equally over the stance, adimit the exercise of an unconstitutional authori whole country. But it will afford us none if the will of ty, which the States are not bound to submit to, even for an interested majority shall be the supreme law, and Con- a day, and because it would be absurd to suppose that gress shall undertake to legislate for us in all cases what- any redress could ever be obtained by such an appeal, soever. Before I leave this branch of the subject, I must even if a State were at liberty to make it. If a majority remark, that, while gentlemen admit, as they do, that the of both Houses of Congress should, from any motive, be courts may nullify an act of Congress, by declaring it to induced, deliberately, to exercise "powers not granted," be unconstitutional, it is impossible for them to contend what prospect would there be of "arresting the progress that Congress are the final judges of the extent of their of the evil," by a vote of three-fourths? But the constiown powers. tution does not permit a minority to submit to the people I think I have now shown that the right of a State to a proposition for an amendment to the constitution. Such judge of infractions of the constitution, on the part of the proposition can only come from "two-thirds of the two Federal Government, results from the very nature of the Houses of Congress, or the Legislatures of two-thirds of compact; and that, neither by the express provisions of the States." It will be seen, therefore, at once, that a mithat instrument, nor by any fair implication, is such a nority, whose constitutional rights are violated, can have power exclusively reserved to the Federal Government, no redress by an amendment of the constitution. When or any of its Departments-executive, legislative, or judi- any State is brought into direct collision with the Federal cial. But I go farther, and contend that the power in Government, in the case of an attempt, by the latter, to question may be fairly considered as reserved to the exercise unconstitutional powers, the appeal must be States, by that clause of the constitution before referred made by Congress, (the party proposing to exert the disto, which provides that all powers not delegated to the puted power) in order to have it expressly conferred, United States are reserved to the States, respectively, or and, until so conferred, the exercise of such authority to the people. No doubt can exist, that, before the States entered into the compact, they possessed the right, to the fullest ex VOL. VI.-12 a must be suspended. Even in cases of doubt, such an appeal is due to the peace and harmony of the Government. On this subject our present Chief Magistrate, in his |
