LECTURE VIII.

There are cases however, arising under the constitution, which never can be brought before the judiciary for its decision. "As to these cases," says the reviewer, "each state must, of necessity, be its own final judge or interpreter." Very true! but in these cases of controversy between the states and the United States as to the extent of the powers of the latter, if any one state has the power of judging or interpreting for itself, all the other five and twenty have an equal power; and if they persist(a) in maintaining and upholding what the single state resists, it must either by reason and its remonstrances bring about a change of opinion, or it must finally yield its objections and submit to the interpretation of the constitution by its sister states until it can procure an amendment in conformity with its own views. Until then the obnoxious measure will be carried out, not, indeed, by action upon the state itself, through its several organs, but upon the individuals composing the state, according to the true theory and principles of the constitution.

It sometimes, indeed, may happen that the federal government will have no power to enforce the states to do their duty. Thus, if a state refuses to elect senators, or to appoint electors, there is no remedy, and thus, it is true, by combination among the states, the government may be destroyed. On the other hand, in some cases of collision between the states and general government, where the lat ter can act on individuals, it may do so and carry out its laws in spite of the resistance of the states. It proceeds to execute the law, and if resisted, the offender is sub

(a) If they or a majority of congress do not, then the obvious remedy is a repeal of the obnoxious law. If the majority of congress approve it, and the judiciary pronounce it valid, no state can have a constitutional right to resist it. Its only remedy is above the constitution. In other words it must be by revolution, or secession, which is revolution; and as all the states have equal right to judge, secession must always be upon the responsibility of the seceding state.

jected to the laws of the Union. It will be no justification to him in its forum that he acted under a conflicting state law. So, if the governor of a state were to issue an order to the militia while in the actual service of the United States during war, the executive of the Union could not act, indeed, upon the governor, but a court martial would act upon the individual who should foolishly obey his orders. So as to the legislative bodies. Congress cannot act directly on the legislatures, however gross their violations of the constitution. The legislature of one sovereign cannot act upon the legislature of another unless by express compact; and hence congress cannot compel the state legislatures to pass, or forbid them from passing any law. If they pass unconstitutional laws, which can come under judicial cognizance in the federal courts, those courts arrest their operation by action on individuals. If the law can in no wise be brought within the judicial sphere, the federal legislature acts without regarding it, though no political dreamer has ever thought of compulsive repeal, or instructions to proceed according to its mandate.(b)

With these views of my own on the interesting topics of nullification, and the powers of the supreme court, I shall present to the student the striking observations of several distinguished statesmen and politicians. It cannot but have been remarked, that in these constitutional questions, I occupy an isthmus that divides two great contending parties in the nation. I have endeavoured to maintain a middle course between dangerous extremes. On the one hand is nullification, and upon the other centralization; the rocks of Scylla and the engulphing whirlpool of Charybdis. In shunning both, I have followed, I am sure, the track of the wisest and most virtuous of our statesmen ; and I feel the sincerest gratification in being able to sustain myself on both points, by the authority of one who shared in the adoption of the constitution, and who has always maintained its federative character, while he has resisted with the force of truth the disorganizing doctrines falsely deduced from it. I shall first, however, avail myself of judge Story's able disquisitions, which will be found

(b) The late apportionment bill is charged with this absurdity. I have not yet seen it.

to repel with great force of argument the unfounded and mischievous pretensions of the advocates of nullification. At the conclusion of them will be found Mr. Madison's views as presented in his letter to Everett in August 1830: "§ 373. The consideration of the question, whether the constitution has made provision for any common arbiter to construe its powers and obligations, would properly find a place in the analysis of the different clauses of that instruBut, as it is immediately connected with the subject before us, it seems expedient in this place to give it a deliberate attention. (c)

"§ 374. In order to clear the question of all minor points, which might embarrass us in the discussion, it is necessary to suggest a few preliminary remarks. The con

(c) The point was very strongly argued, and much considered, in the case of Cohens v. Virginia, in the supreme court, in 1821, (6 Wheat. R. 264.) The whole argument, as well as the judgment, deserves an attentive reading. The result, to which the argument against the existence of a common arbiter leads, is presented in a very forcible manner by Mr. chief justice Marshall, in pages 376,

377:

"The questions presented to the court by the two first points made at the bar are of great magnitude, and may be truly said vitally to affect the Union. They exclude the enquiry, whether the constitution and laws of the United States have been violated by the judgment, which the plaintiffs in error seek to review; and maintain, that, admitting such violation, it is not in the power of the government to apply a corrective. They maintain, that the nation does not possess a department capable of restraining peaceably, and by authority of law, any attempts, which may be made by a part against the legitimate powers of the whole; and that the government is reduced to the alternative of submitting to such attempts, or of resisting them by force. They maintain, that the constitution of the United States has provided no tribunal for the final construction of itself, or of the laws or treaties of the nation; but that this power may be exercised in the last resort by the courts of every state in the Union. That the constitution, laws and treaties, may receive as many constructions, as there are states; and that this is not a mischief, or, if a mischief, is irremediable. These abstract propositions are to be determined; for he, who demands decision without permitting enquiry, affirms, that the decision he asks does not depend on enquiry.

"If such be the constitution, it is the duty of this court to bow with respectful submission to its provisions. If such be not the constitution, it is equally the duty of this court to say so; and to perform that task, which the American people have assigned to the judicial department."

stitution, contemplating the grant of limited of limited powers, and distributing them among various functionaries, and the state governments, and their functionaries, being also clothed with limited powers, subordinate to those granted to the general government, whenever any question arises as to the exercise of any power by any of these functionaries under the state, or federal government, it is of necessity, that such functionaries must, in the first instance, decide upon the constitutionality of the exercise of such power.(d) It may arise in the course of the discharge of the functions of any one, or of all, of the great departments of government, the executive, the legislative, and the judicial. The officers of each of these departments are equally bound by their oaths of office to support the constitution of the United States, and are therefore conscientiously bound to abstain from all acts, which are inconsistent with it. Whenever, therefore, they are required to act in a case, not hitherto settled by any proper authority, these functionaries must, in the first instance decide, each for himself, whether, consistently with the constitution, the act can be done. If, for instance, the president is required to do any act, he is not only authorized, but required, to decide for himself, whether, consistently with his constitutional duties, he can do the act. (e) So, if a proposition be before congress, every member of the legislative body is bound to examine, and decide for himself, whether the bill or resolution is within the constitutional reach of the legislative powers confided to congress. And

(d) See the Federalist, No. 33.

(e) Mr. Jefferson carries his doctrine much farther, and holds, that each department of government has an exclusive right, independent of the judiciary, to decide for itself, as to the true construction of the constitution. "My construction," says he, "is very different from that, you quote. It is, that each department of the government is truly independent of the others, and has an equal right to decide for itself, what is the meaning of the constitution in the laws submitted to its action, and especially when it is to act ultimately and without appeal." And he proceeds to give examples, in which he disregarded, when president, the decisions of the judiciary, and refers to the alien and sedition laws, and the case of Marbury v. Madison, (1 Cranch 137.) 4 Jefferson's Corresp. 316, 317. See also 4 Jefferson's Corresp. 27; Id. 75; Id. 372, 374.

in many cases, the decisions of the executive and legislative departments, thus made, become final and conclusive, being from their very nature and character incapable of revision. Thus, in measures exclusively of a political, legislative, or executive character, it is plain, that as the su preme authority, as to these questions, belongs to the legislative and executive departments, they cannot be re-examined elsewhere. Thus, congress having the power to declare war, to levy taxes, to appropriate money, to regulate intercourse and commerce with foreign nations, their mode of executing these powers can never become the subject of re-examination in any other tribunal. So the power to make treaties being confided to the president and senate, when a treaty is properly ratified, it becomes the law of the land, and no other tribunal can gainsay its stipulations. Yet cases may readily be imagined, in which a tax may be laid, or a treaty made, upon motives and grounds wholly beside the intention of the constitution.(f) The remedy, however, in such cases, is solely by an appeal to the people at the elections; or by the salutary power of amendment, provided by the constitution itself.(g)

"§ 375. But, where the question is of a different nature, and capable of judicial enquiry and decision, there it admits of a very different consideration. The decision then made, whether in favour, or against the constitutionality of the act, by the state, or by the national authority, by the legislature, or by the executive, being capable, in its own nature, of being brought to the test of the constitution, is subject to judicial revision. It is in such cases, as we conceive, that there is a final and common arbiter provided by the constitution itself, to whose decisions all

(f) See 4 Elliot's Debates, 315 to 320.

(g) The Federalist, No. 44.-Mr. Madison, in the Virginia Report of January 1800, has gone into a consideration of this point, and very properly suggested, that there may be infractions of the constitution not within the reach of the judicial power, or capable of remedial redress through the instrumentality of courts of law. But we cannot agree with him, that in such cases, each state may take the construction of the constitution into its own hands, and decide for itself in the last resort; much less, that in a case of judicial cognizance, the decision is not binding on the states. See Report, p. 6, 7, 8, 9.