United

States of

§ 52. The Constitution of the United States of America America. is of a very different nature from that of the Germanic Confederation. It is not merely a league of sovereign States, for their common defence against external and internal violence, but a supreme federal government, or compositive State, acting not only upon the sovereign members of the Union, but directly upon all its citizens in their individual and corporate capacities. It was established, as the Constitution expressly declares, by "the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to them and their posterity." This Constitution, and the laws made in pursuance thereof, and treaties made under the authority of the United States, are declared to be the supreme law of the land and that the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding.

Legisla

of the
Union.

§ 53. The legislative power of the Union is vested in a tive power Congress, consisting of a Senate, the members of which are chosen by the local legislatures of the several States, and a House of Representatives, èlected by the people in each State. This Congress has power to levy taxes and duties, to pay the debts, and provide for the common defence and general welfare of the Union; to borrow money on the credit of the United States; to regulate commerce with foreign nations, among the several wig and Lauenburg, with the port of Kiel, and the control of the canal from the German Ocean to the Baltic. Austria has Holstein, and receives 375,000l. for the surrender of Lauenburg. Yet the matter between the two powers is not entirely settled, and Prussia holds possession of Lauenburg. The only thing absolutely settled is, that the German Confederation is powerless against Prussia, and has little else remaining to it than a moral influence.

From 1859 to the present time, the constitution of the German confederacy and of the Zollverein have been the subjects of frequent attempts at reconstruction. The states of the second order began the movement in 1859, countenanced by Austria, Saxony taking the lead. Their proposition, known as the Dresden Project, was declined by Prussia, and the Prussian proposal of a restricted confederation, under her own direction, was opposed by Austria and the minor powers in sympathy with her. In the Zollverein, it had been customary for Prussia to negotiate the commercial treaties with foreign powers, and to sign and exchange them; leaving the other members of the union to give their adherence afterwards. The attempt to introduce Austria into the Zollverein, and the growing reluctance of the minor States to leave the treaty-making power to Prussia, make the continuance, or at least the renewal, of the Zollverein a matter of no little doubt. Le Nord, Aug. 15, Aug. 31, Oct. 18, Nov. 1 and 21, 1862.]—D.

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States, and with the Indian tribes; to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcy throughout the Union; to coin money, and fix the standard of weights and measures; to establish post-offices and post-roads; to secure to authors and inventors the exclusive right to their writings and discoveries; to punish piracies and felonies on the high seas, and offences against the law of nations; to declare war, grant letters of marque and reprisal, and regulate captures by sea and land; to raise and support armies; to provide and maintain a navy; to make rules for the government of the land and naval forces; to exercise exclusive civil and criminal legislation over the district where the seat of the federal government is established, and over all forts, magazines, arsenals, and dockyards belonging to the Union, and to make all laws necessary and proper to carry into execution all these and the other powers vested in the federal government by the Constitution.

§ 54. To give effect to this mass of sovereign authori- Executive ties, the executive power is vested in a President of the power. United States, chosen by electors appointed in each State in such manner as the legislature thereof may direct. The judicial power extends to all cases in law and equity arising under the Constitution, laws, and treaties of the Union, and is vested in a Supreme Court, and such inferior tribunals as Congress may establish. The federal judiciary exercises under this grant of power the authority to examine the laws passed by Congress and the several State legislatures, and, in cases proper for judicial determination, to decide on the constitutional validity of such laws.31 The

[$1 Relations of the United-States Judiciary to the Constitution and Statutes. — The language of this clause may mislead foreign readers. There is no tribunal, under the Constitution, which has special and direct power to decide questions of constitutional law. The Supreme Court of the United States, like all the other courts, State or national, is simply a court of judicature, to decide controverted cases in law, equity, or admiralty, that are brought before it by actual litigants. It is not charged with any special function conservative of the Constitution, like the so-entitled Senate of the French Constitution of December, 1799. In cases before it, the Supreme Court has no other jurisdiction over constitutional questions than is possessed by the humblest judicial tribunal, State or national, in the land. The only distinction is, that it is the court of final resort, from whose decision there is no appeal. The relations of all the courts to the Constitution arise simply from the fact, that, being courts of law, they must give to litigants before them the law; and the Constitution of the United States is law, and not, like most European political constitutions, a collection of rules and principles having only a moral obligation upon the legislative and executive departments of the government. Accordingly, each litigant, having the right to the highest law, may

judicial power also extends to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United

appeal from a statute of Congress, or any other act of any officer or department, State or national, and invoke the Constitution, as the highest law. The court does not formally set aside or declare void any statute or ordinance inconsistent with the Constitution. It simply decides the case before it according to law; and, if laws are in conflict, according to that law which has the highest authority: that is, the Constitution. The effect of the decree of the final court on the status of the parties or property in that suit is, of course, absolute, and binds all departments of the government. The constitutional principle involved in the decision being ascertained from the opinion,—if the court sees fit to deliver a full opinion, — has in all future cases, in courts of law, simply the effect of a judicial precedent, whatever that may be. Upon the political departments of the government, and upon citizens, the principle decided has, in future cases, not the binding force of a portion of the Constitution, but the moral effect due to its intrinsic weight and to the character of the tribunal, and the practical authority derived from the consideration that all acts inconsistent with it will be inoperative, by reason of the judicial power, which any litigant may invoke against their operation; and from the further consideration that any attempts to act against it can only produce a conflict between departments of the government, in which the authority of the judiciary must prevail or be overthrown. But the court itself, in some subsequent case, upon further consideration, or by reason of changes in its members, may overrule its own precedent; and thus a law or doctrine long inoperative may be revived, or, long operative, may be set aside. The precise authority which a precedent of the Supreme Court, on a question of constitutional law, has upon the court itself, in subsequent cases, is too complex and uncertain for speculation here.

There need be no difficulty in apprehending the subject, if certain things are borne in mind: I. The Constitution is a code of positive law, as much as an act of the Legislature, and binding, as positive law, upon all persons, official or unofficial, in all their relations, public or private, and upon all departments of the government, legislative, executive, and judicial. II. The courts have no special power to construe the Constitution, or to make interpretations of it which shall have the force of law. They have no function except to decide actual causes brought before them by litigating parties. As they must decide these causes according to law, they necessarily interpret the Constitution as they do any other form of law; but only for the purpose of deciding the case before them, and that is all they do decide. III. The American system being that of the Common Law, in which the principle of a judicial decision has the force of a precedent, the constitutional principle involved in deciding a case has that force. IV. The decree of the court on the subject-matter before it, must be executed by all the powers of the government; but the principle of constitutional law involved in the decision has not the force of a law, as to future cases, on a department, or a citizen in the discharge of his political duties. It has the moral and practical force of a judicial precedent. V. The practical effect of a judicial precedent of the Supreme Court is to settle a rule of construction for all inferior courts. It also settles a rule for the Supreme Court itself, not absolute, but practically permanent, unless very strong grounds appear for reversing it in some future case. The advantage of a settled rule, and the dangers and disadvantages of uncertain rules, are always great. Moreover, in the case of a purely judicial tribunal, as it cannot propound abstract rules of law, but only decide cases, a change of the principle of decision, in a case before it, operates as a surprise and injustice upon the parties in court, and upon all who have shaped their conduct by 80

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, or the citizens thereof, and foreign States, citizens, or subjects.

making

§ 55. The treaty-making power is vested exclusively in Treatythe President and Senate; all treaties negotiated with for- power. eign States being subject to their ratification. No State of the Union can enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in the payment of debts; pass any bill of attainder ex post facto law, or law impairing the obligation of contracts; grant any title of nobility; lay any duties on imports or exports, except such as are necessary to execute its local inspection laws, the produce of which must be paid into the national treasury; and such laws are subject to the revision and control of the Congress. Nor can any State, without the consent of Congress, lay any tonnage duty; keep troops or ships of war in time of peace; enter into any agreement or compact with another State or with a foreign power; or engage in war unless actually the principle once adopted by the court. This simple fact, seldom noticed, that a court of law cannot adopt or declare a rule of interpretation in the abstract, to operate only in future cases, as an act of the legislature operates, with notice to all, but, if it changes its principle of construction, must do so on a case ex post facto,— goes far to account for the obligation of judicial precedents. VI. A judicial precedent, on a question of constitutional political law, has no other than moral force on the legislative department, in its subsequent acts, and on citizens in their votes. For instance, if the Supreme Court decides a statute to be constitutional, that does not operate, as law, on the conscience of a member of the legislature, under his oath, so as to prevent him from voting to repeal it as unconstitutional; or to prevent a citizen from voting at elections, on that ground alone; or upon the President, to prevent his putting his veto on a renewal of such a law in a new case. So, if it decides a law unconstitutional, the legislature may retain the law on the statute-books, and renew it if it expires, leaving it to be inoperative, in the hope of a reversal of the decision by some changes in the court. This course raises only a question of comity and prudence. If the Supreme Court decides a certain bank-charter to be constitutional, Congress may decline to renew it when it has expired, or to grant a similar one to another company, solely on the ground that such charters, in their opinion, are not constitutional. No conflict is created, as the existing charter has effect everywhere, by force of the decision. If the Supreme Court decides that it is unconstitutional to prohibit slavery in a territory, Congress may still prohibit it in all future territorial bills; taking the chance of the court's not adhering to its doctrine. These are questions of policy and propriety, not of law.

This topic is peculiar to American jurisprudence. In England, an act of Parlia

invaded, or in such imminent danger as does not admit of delay. The Union guarantees to every State a republican form of government, and engages to protect each of them against invasion, and, on application of the legislature, or of the executive, when the legislature cannot be convened, against domestic violence.

The American Union

ernment.

§ 56. It is not within the province of this work to deis a supreme termine how far the internal sovereignty of the respective federal govStates composing the Union is impaired or modified by these constitutional provisions. But since all those powers, by which the international relations of these States are maintained with foreign States, in peace and in war, are expressly conferred by the Constitution on the federal government, whilst the exercise of these powers by the several States is expressly prohibited, it is evident that the external sovereignty of the nation is exclusively vested in the Union. The independence of the respective States, in this respect, is merged in the sovereignty of the federal government, which thus becomes what the German public jurists call a Bundesstaat.32

ment is supreme law: there being no positive, paramount constitution; and, on the continent, the doctrine of public law seems to be, that courts are not to go behind the external or formal legality of governmental acts.] — D.

[32 The United States a Supreme Government. — The republic of the United States comes confessedly up to this second class, of a supreme federal government, or composite state, in its practical result. It is a new state or government, acting directly upon each individual, by its own officers and departments, in execution of its own laws. Within its sphere, it acts as if there were no separate States in existence. It is also the final judge, in a dispute between itself and a State, as to the limits of its sphere of action. It has been the doctrine of a political school, that the Constitution had its origin and authority from a compact of the States; but the doctrine more generally received is, that the people of the entire republic, as a political community, created the republic, as the people of each State created the separate States: the organic relation of each citizen to the republic being the same in kind as that he holds to the State in which he lives. This doctrine arises naturally out of the American principle that the political people are the sources of all authority, and the creators of the form of government under which they live.

But, whatever may be the theory, its consideration does not belong to international law. It is enough to say, that the supremacy of the republic within its sphere, and its supreme right to determine the limits of its sphere, is now settled. Mr. Calhoun and the politicians of the South Carolina school, in 1831, at first contended for a right in each State to nullify any act of Congress within the limits of the State which, in the opinion of the State, should be unconstitutional or oppressive and unjust, and yet to remain in the Union. The impracticability of recognizing such a right as a legal right, the State still to remain in the Union and its people assisting to make laws for the republic, choosing which they will obey, soon brought this theory into disrepute, even with its original supporters; and they adopted the more practical doctrine of a right in a State to secede from the Union altogether, at its discretion. This doctrine, 82