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ther they adopted the one mode or the other, not less than two-thirds of them should be authorized to act efficiently.
"The amendments thus proposed shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of three-fourths of the states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by congress.' It is the act of adoption or ratification alone which makes a constitution. In the states before us the states alone can perform that act. The language of the constitution admits of no doubt, and gives no pretext for double construction. It is not the people of the United States in the aggregate, merely acting in their several states, who can ratify amendments. Three-fourths of the several states can alone do this. The idea of separate and independent political corporations could not be more distinctly conveyed by any form of words. If the people of the United States, as one people, but acting in their several states, could ratify amendments, then the very language of the constitution requires that three-fourths of them shall concur therein. Is it not, then, truly wonderful that no mode has yet been prescribed to ascertain whether three-fourths of them do concur or not? By what power can the necessary arrangement upon this point be effected? In point of fact, amendments have already been made, in a strict conformity with this provision of the constitution.
"So strongly were the states attached to that perfect equality which their perfect sovereignty implied, and so jealous were they of every attack upon it, that they guarded it, by an express provision of the constitution, against the possibility of overthrow. All other rights they confided to that power of amendment, which they reposed in three-fourths of all the states; but this they refused to intrust, except to the separate, independent, and sovereign will of each state; giving to each, in its own case, an absolute negative upon all the rest.*
"The object of the preceding pages has been to show that the constitution is federative, in the power which framed it; federative in the power which adopted and ratified it; federative in the power which sustains and keeps it alive; federative in the power by which alone it can be altered or amended; and federative in the structure of all its departments. In what respect then can it be justly called a consolidated or national government?
"We come now to a more particular and detailed examination of the question, 'Who is the final judge and interpreter in constitutional controversies?' Judge Story's conclusion is, that 'in all questions of a judicial nature' the supreme court of the United States is the final umpire; and that the states, as well as individuals, are absolutely bound by its decisions.
"Whatever comes within the legitimate cognizance of that tribunal it has a right to decide, whether it be a question of the law or of the constitution; and no other tribunal can reverse its decision. The constitution, which creates the supreme court, creates no other court of superior or appellate jurisdiction to it; and consequently its decisions are strictly 'final.' There is no power in the same government to which that court belongs to reverse or control it, nor are there any means therein of resisting its authority. So far, therefore, as the Federal Constitution has provided for the subject at all, the supreme court is, beyond question, the final judge or arbiter; and this, too, whether the jurisdiction which it exercises be legitimate or usurped.
"Let us now inquire what 'constitutional controversies' the federal courts have
So absolutely is the federal government dependent on the states for its existence, at all times, that it may be absolutely dissolved, without the least violence, by the simple refusal of a part of the states to act. If, for example, a few states, having a majority of electoral votes, should refuse to appoint electors of president and vice-president, there would be no constitutional executive, and the whole machinery of the government would stop.
authority to decide, and how far its decisions are final and conclusive against all the world.
"The third article of the constitution provides, that 'the judicial power shall extend to all cases of law and equity, arising under this constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls, to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state, claiming lands under grants of different states and between a state and the citizens thereof, and foreign states, citizens or subjects." The eleventh amendment provides that "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.'
"It will be conceded on all hands that the federal courts have no jurisdiction except what is here conferred. The judiciary, as a part of the federal government, derives its powers only from the constitution, which creates that government. The term cases' implies that the subject matter shall be proper for judicial decision; and the parties between whom alone jurisdiction can be entertained are specifically enumerated. Beyond these cases and these parties they have no jurisdiction.
"There is no part of the constitution in which the framers of it have displayed a more jealous care of the rights of the states than in the limitation of the judicial power. It is remarkable that no power is conferred except what is absolutely necessary to carry into effect the general design, and accomplish the general object of the states, as independent, confederated states. The federal tribunals cannot take cognizance of any case whatever in which all the states have not an equal and common interest, that a just and impartial decision shall be had. A brief analysis of the provisions of the constitution will make this sufficiently clear. "Cases arising under the constitution' are those in which some right or privilege is denied which the constitution confers, or something is done which the constitution prohibits, as expressed in the constitution itself. Those which arise 'under the laws of the United States' are such as involve rights or duties which result from the legislation of congress.
"Cases arising under treaties, made under the authority of the United States, and those 'affecting ambassadors and other public ministers and consuls' could not be properly intrusted to any other than the federal tribunals. Treaties are made under the common authority of all the states, and all alike are bound for the faithful observance of them. Ambassadors and other public ministers and consuls are received under the common authority of all the states, and their duties relate only to matters involving alike the interests of all. The peace of the country, and the harmony of its relations with foreign powers, depend, in a peculiar degree, on the good faith with which its duties, in reference to these subjects, are discharged. Hence it would be unsafe to intrust them to any other power than their own control; and even if this were not so, it would be altogether incongruous to appeal to a state tribunal to enforce the rights, the obligations, or the duties of the United States. For like reasons cases of admiralty and maritime jurisdiction are properly entrusted to the federal tribunals.
"Controversies, to which the United States shall be a party, should, upon general principles, belong only to her own courts. There would be neither propriety nor justice in permitting any one state to decide a case in which all the states are parties. In like manner, those between two or more statesbetween a state and citizens of another state, where the state is plaintiff (it cannot be sued,) and between citizens of different states, could not be entrusted to the tribunals of any particular state interested, or whose citizens are in
terested therein, without danger of injustice and partiality. Jurisdiction is given to the federal courts, in these cases, simply because they are equally interested for all the parties, are the common courts of all the parties, and therefore are presumed to form the only fair and impartial tribunal between them. The same reasoning applies to cases between citizens of the same state, claiming lands under grants of different states. Cases of this sort involve questions of the sovereign power of the states, and could not, with any show of propriety, be entrusted to the decision of either of them, interested, as it would be, to sustain its own acts against those of the sister state. The jurisdiction in this case is given upon the same principles which gave it in cases between two or more states.
Controversies between a state or the citizens thereof, and foreign states, citizens, or subjects, depend on a different principle, but one equally affecting the common rights and interests of all the states. A foreign state cannot, of course, be sued; she can appear in our courts only as plaintiff. Yet, in whatever form such controversies, or those affecting the citizens of a foreign state, may arise, all the states have a deep interest that an impartial tribunal, satisfactory to the foreign party, should be provided. The denial of justice is a legitimate, and not an unfruitful, cause of war. As no state can be involved in war without involving all the rest, they all have a common interest to withdraw from the state tribunals a jurisdiction which may bring them within the danger of that result. All the states are alike bound to render justice to foreign states and their people; and this common responsibility gives them a right to demand that every question involving it shall be decided by their common judicatory.
"The tenth article of the amendments of the constitution, provides that, 'The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.' The powers thus reserved, are not only reserved against the federal government in whole, but against each and every department thereof. The judiciary is no more excepted out of the reservation than is the legislature or the executive. Of what nature, then, are those reserved powers? Not the powers, if any such there be, which are possessed by all the states together, for the reservation is to the states respectively; that is, to each state separately and distinctly. Now we can form no idea of any power possessed by a state as such, and independent of every other state, which is not, in its nature, a sovereign power. Every power so reserved, therefore, must be of such a character, that each state may exercise it, without the least reference or responsibility to any other state whatever. It is incident to every sovereignty to be alone the judge of its own compacts and agreements. No other state or assemblage of states, has the least right to interfere with it, in this respect, and cannot do so without impairing its sovereignty. The constitution of the United States is but the agreement which each state has made, with each and all the other states, and is not distinguishable, in the principle we are examining, from any other agreement between sovereign states. Each state, therefore, has a right to interpret that agreement for itself, unless it has clearly waived that right in favour of another power. That_the_right is not waived in the case under consideration, is apparent from the fact already stated, that if the judiciary be the sole judges of the extent of their own powers, their powers are universal, and the enumeration in the constitution is idle and useless.
"The federal government is the creature of the states. It is not a party to the constitution, but the result of it-the creation of that agreement which was made by the states as parties. It is a mere agent intrusted with limited powers for certain specific objects; which powers and objects are enumerated in the constitution. Shall the agent be permitted to judge of the extent of VOL. III. SEPT., 1849.
his own powers, without reference to his constituents? To a certain extent he is compelled to do this, in the very act of exercising them, but this is always in subordination to the authority by whom his powers were conferred.
"Considering the nature of our system of government, the states ought to be, and I presume always will be, extremely careful not to interpose their sovereign power against the decisions of the supreme court, in any case where that court clearly has jurisdiction. Of this character, are the cases cited at the commencement of this inquiry; such, for example, as those between two states, those affecting foreign ministers, those of admiralty and maritime jurisdiction, &c. As to all these subjects, the jurisdiction is clear, and no state can have any interest to dispute it.
"According to the principles of all our institutions sovereignty does not reside in any government whatever, neither state nor federal. Government is regarded merely as the agent of those who create it, and subject in all respects to their will. In the states, the sovereign power is in the people of the states respectively; and the sovereign power of the United States would, før the same reason, be in 'the people of the United States,' if there were any such people, known as a single nation, and the framers of the federal govern
"The true sovereignty of the United States, therefore, is in the states, and not in the people of the United States, nor in the federal government. That government is but the agent through whom a portion of this sovereign power is exerted; possessing no sovereignty itself, and exerting no power, except such only as its constituents have conferred on it. In ascertaining what these powers are, it is obviously proper that we should look only to the grant from which they are derived. The agent can claim nothing for itself, and on its own account. The constitution is a compact, and the parties to it are each state, with each and every other state. The federal government is not a party, but is the mere creature of the agreement between the states as parties. Each state is both grantor and grantee, receiving from each and all the other states, precisely what, in its turn, it concedes to each and all of them. The rule, therefore, that the words are to be taken most strongly in favour of the grantee, cannot apply, because, as each state is both grantor and grantee, it would give exactly as much as it would take away. The only mode, therefore, by which we may be certain to do no injustice to the intentions of the parties, is by taking their words as the true exponents of their meaning.
"The lovers of a strong consolidated government have laboured strenuously, and, I fear, with too much success, to remove every available restriction upon the powers of congress. The tendency of their principles is to establish that legislative omnipotence which is the fundamental principle of the British constitution, and which renders every form of written constitution idle and useless. They suffer themselves to be too much attracted by the splendours of a great central power. Dazzled by these splendours, they lose sight of the more useful, yet less ostentatious purposes of the state governments, and seem to be unconscious that, in building up this huge temple of federal power, they necessarily destroy those less pretending structures, from which alone they derive shelter, protection, and safety. This is the ignis fatuus which has so often deceived nations, and betrayed them into the slough of despotism. On all such the impressive warning of Patrick Henry, drawn from the lessons of all experience, would he utterly lost. Those nations who have gone in search of grandeur, power, and splendour, have also fallen a sacrifice, and been the victims of their own folly. While they acquired those visionary blessings, they lost their freedom.' The consolidationists forget these wholesome truths, in their eagerness to invest the federal government with every power which is necessary to realize their visions
of a great and splendid nation. Hence they do not discriminate between the several classes of federal powers, but contend for all of them, with the same blind and devoted zeal. It is remarkable that, in the exercise of all those functions of the federal government which concern our foreign relations, scarcely a case can be supposed requiring the aid of any implied or incidental power, as to which any serious doubt can arise. The powers of that government, as to all such matters, are so distinctly and plainly pointed out, in the very letter of the constitution; and they are so ample for all the purposes contemplated, that it is only necessary to understand them according to their plain meaning, and to exercise them according to their acknowledged extent. No auxiliaries are required; the government has only to go on in the execution of its trusts, with powers at once ample and unquestioned. It is only in matters which concern our domestic policy, that any serious struggle for federal power has ever arisen, or is likely to arise. Here, that love of splendour and display, which deludes so large a portion of mankind, unites with that self-interest by which all mankind are swayed, in aggrandizing the federal government, and adding to its powers. He who thinks it better to belong to a splendid and showy government, than to a free and happy one, naturally seeks to surround all our institutions with a gaudy pageantry, which belongs only to aristocratic or monarchical systems. But the great struggle is for those various and extended powers from the exercise of which avarice may expect its gratifications. Hence the desire for a profuse expenditure of public money, and hence the thousand schemes, under the name of internal improvements, by means of which hungry contractors may plunder the public treasury, and wily speculators prey upon the less skilful and cunning. And hence, too, another sort of legislation, the most vicious of the whole, which, professing a fair and legitimate object of public good, looks, really, only to the promotion of private interests. It is thus that classes are united in supporting the powers of government, and an interest is created strong enough to carry all measures and sustain all abuses.
"Let it be borne in mind that, as to all these subjects of domestic concern, there is no absolute necessity that the federal government should possess any power at all. They are all such as the state governments are perfectly competent to manage; and the most competent, because each state is the best judge of what is useful or necessary to itself. There is, then, no room to complain of any want of power to do whatever the interests of the people require to be done.
"Here, then, are all the powers which it is necessary that government should possess; not lodged in one place, but distributed; not the power of the state governments, nor of the federal government, but the aggregate of their several and respective powers. In the exercise of those functions which the state governments are forbidden to exercise, the federal government need not look beyond the letter of its charter for any needful power; and in the exercise of any other function, there is still less necessity that it should do so; because, whatever power that government does not plainly possess, is plainly possessed by the state governments.
"A clause in the constitution allows representation to three-fifths of the slaves. Judge Story considers the compromise upon this subject as unjust in principle, and decidedly injurious to the people of the non-slave-holding He said, in the constates. Mr. John Adams was of a different opinion. vention which framed the constitution, that as to the numbers of the people being taken as the index of the wealth of the state, it was of no consequence by what name you called your people, whether by that of freemen or slaves; that in some countries the labouring poor are called freemen, in others they are called slaves; but that the difference as to the state was imaginary. That five hundred freemen would produce no more profits for the payment of taxes
*The slaves have no voice in elections.