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confederacy, “to protect her own citizens within her own limits.” To those, therefore, who say that they look in vain into the Constitution, to find the right of " veto" on the part of the States, we have no other reply to make, than that they can likewise find no specification of the means by which the reserved rights of the States are to be either preserved or maintained. All the means necessary for the security of these rights belong to the States in their confederate capacity. The States, in one word, have just as clear a right to protect their citizens from the exercise of a power not granted to the General Government, as that government
has to exercise a clearly delegated trust within their limits. · That Mr. Webster should not be able to conceive that “there can be a middle course between submission to the laws, when regularly pronounced constitutional on the one hand, and open resistance, which is revolution or rebellion, on the other,” does not surprise us, after the conception which he has forined of the origin and character of our government; which he seems to consider as a consolidated government, in which the States are only the contemptible corporations which his argument necessarily makes them. But if each State, on entering the confederacy, was a distinct political sovereignty, it gave the General Government jurisdiction only over the powers it clearly delegated, and necessarily withheld it from those it did not delegate. To bave conferred on the government created, the unlimited and exclusive power to determine what powers it had or had not received, would have been to give it precisely such a discretion as would have made the government so created, unlimited in itself. The right, on the part of a sovereign member of a confederacy, to exercise a veto in cases where the compact stands violated, is not a matter of constitutional stipulation, but is inherent in a meinber of the confederacy, by virtue of its sovereignty and by necessary implication, resulting from the reservation of those rights it has not delegated. In a case, therefore, where a State interposes its sovereignty to prevent, within its limits, the exercise of a power not granted, in the form of annulment, by discharging its citizens from all obligation to an unconstitutional law, it no more commits an act of revolution than the Government of the United States would, by declaring a treaty with a foreign power void, on the ground of its stipulations having been violated. The States in this Union are not the subjects of, but parties to the compact. As parties to the compact, they are invoked by the highest obligations to protect their own citizens from infractions of their rights and liberties, by the exercise of their sovereign authority.
This may, for aught we know, be unsound doctrine, but if it does not find its sanction in the 3d resolution of the Virginia Re
solutions of 1798, and in the Resolutions of Kentucky, conceived by the same head and written by the same hand that drew the Declaration of Independence, we are certainly at a loss to fix a just meaning to the most plain and obvious terms. This resolve which is destined to endure with the last records of our glory, speaks in no phrases of double meaning or equivocation, it affirms with a distinctness which none can mistake, “that the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but, that by compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes, delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each State acceded as a State, and is an integral party, its coStates forming as to itself, the other party; That the government created by this compact was not mude the exclusive or final judge of the extent of the powers delegated to itself: since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, euch party has an equal right to judge for itself as well of infractions, as of the mode and measure of redress.”
It will be seen that in the whole course of this discussion, we have attempted nothing more than to fix the proper interpretation to be given to the Virginia and Kentucky Resolutions. We do not desire to go one inch beyond them. They go far enough for the entire preservation of the sovereignty of the States. We then say that these Resolutions affirm
1st. A right on the part of the States to interpose for the purpose of arresting the exercise of an unconstitutional law within their limits.
20. That this right, according to the writers on national law, is a perfect right, and includes an obligation on the part of the State Governments, to protect their own people from a violation of the compact, and to use all the means necessary to enforce this right.
3d. That what these means shall be, according to Mr. Jefferson, are questions for the discretion of the States who have an equal right "to judge for themselves, as well of infractions as of the mode and measure of redress.” That in the exercise of this discretion, the States niust act under the responsibility of all moral agents, to employ only those means that are necessary to compass the end, which will do their opponents the least harm.
4th. That if petition, remonstrance, and co-operation on the part of the injured States, “will not arrest the progress of the evil,” by inducing the General Government to surrender the exercise of the unconstitutional power, or repeal the unconstitutional law, the right to employ the next best means, remains unimpaired-which must be to declare the law void, and to absolve their citizens from all obligations to it—the only peaceable inode of maintaining “within their respective limits, the authorities, rights, and liberties appertaining to them."
“But,” says Mr. Webster-which brings us to another part of the argument—"the people have wisely provided, in the Constitution itself, a proper and suitable mode and tribunal for settling questions of Constitutional law-by declaring that the Constitution, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land, any thing in the Constitution or laws of any State to the contrary notwithstanding.
“This, Sir, was the first great step. By this the supremacy of the Constitution and laws of the United States is declared. The people so will it. No State law is to be valid which comes in conflict with the Constitution or any law of the United States. But who shall decide this question of interference? To whom lies the last appeal? This, Sir, the Constitution itself decides also, by declaring that the Judicial power shall extend to all cases arising under the Constitution and Laws of the United States.'”
This affirmance, on the part of Mr. Webster, that the Supreme Court is the proper and regularly constituted tribunal to decide all controversies between the General Government and a State, we are prepared to meet by an authority at least equal to his own.
Before we do this, however, for the purpose of greater accuracy, let us see the precise terms in which the judicial power is given under the Constitution. It says in the 1st section of the 3d article
“The judicial power shall be vested in one Supreme Court, and such inferior Courts as Congress may from time to time order and establish.
“The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and 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 Statesbetween a State and citizens of another State-between citizens of the same State claiming lands under grants of different States, and between a State or a citizen thereof, and foreign States, citizens or subjects."
We do not find in this enumeration, that the Supreme Court has the power to decide in a controversy, between the Government
of the United States and a State, on any question growing out of its reserved rights. From the whole specification of its powers, its duties are strictly judicial, not political, and although it might decide on a merchant's bond, whether the 'Tariff was or was not constitutional, as case arising under the laws of the United States and affecting individuals, it would have no power to decide on the validity of the right by which a sovereign State undertook, by virtue of its reserved rights, to declare this measure void within its limits. Such a declaration, on the part of a State, would neither be a case arising under the Constitution or the laws ofthe United States, for the case made would be one which would arise out of the sovereign act of a sovereign State, in relation to such portions of her power, as she had not delegated.
We look entirely to the Constitution as the source of the power of the Supreme Court, and not to the 25th section of the judiciary act, which we think, by a dangerous stretch of power, has given an unlimited jurisdiction over all State laws, to the mere discretion of the Court—by which usurpation the Supreme . Court claims the power of annulling all State laws in which, according to its construction, the Constitution or the Laws of the United States may be drawn in question. Chief Justice Tilghman, of Pennsylvania, said with great truth and 'wisdom in the case of Olmsted, “but the counsel of Olmsted have brought forward a preliminary question, whether I have a right to discharge the prisoner. This right flows from the nature of our Federal Constitution, which leaves to the several States ABSOLUTE SUPREMACY,in all cases in which it is not yielded to the United States. The United States have no power, legislative or judicial, except what is derived from the Constitution. When these powers are clearly exceeded, the independence of the States, and the peace of the Union demand that the State Courts, should, in cases brought before them, give redress. There is no law that forbids it, their oath of office exacts it, and if they do not, what course is to be taken? We must be reduced to the miserable extremity of opposing force to force and arraying citizen against citizen; for it is vain to expect that the States will submit to manifest and flagrant usurpations of power by the United States, if (which God forbid) they should ever attempt them. If Congress should pass a Bill of Attainder, or lay a tax or duty on articles exported from any State, such laws would be null and void, and all persons who act under it, would be trespassers.” We cite this authority to show not only the legitimate source of the power of the Court, but that its decisions in favour of an unconstitutional exercise of power, on the part of the General
Government, would not necessarily lead to all doubts about its grant of powers, as Mr. Webster says “ being peaceably and authoritatively solved." The framers of the Constitution never intended to confer upon the Supreme Court, the political powers of an Aulic Assembly. In the deliberations of the Convention it was at one time proposed to confer on the Senate, the
power of sovereign arbitration between the States and General Government; but this proposition being abandoned, the Convention wisely left the extraordinary cases which might arise in the conflicts between the General Government and a State, on all questions of reserved sovereiguty, to provide for themselves, or probably to be made the matters of a high arbitrament in an assembly of not less solemnity and authority, than that which created the Constitution itself.
Mr. Madison was in the Convention, and of all men, perhaps, as well advised of the fact, whether the power, “ of being the sole expositor of the Constitution," was given to the Supreme Court or not. He says in bis celebrated report, which we are constrained, from the extreme appositeness of the authority, to quote again :
“ That it is objected, that the judicial authority is to be regarded as the sole expositor of the Constitution in the last resort ; and it may be asked for what reason, the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day, and in so solemn a manner.
“On this objection it might be observed, first: that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the judicial department: secondly, that if the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the judiciary, must be equally authoritative and final with the decisions of that department. But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against the infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the judicial department also, may exercise or sanction dangerous powers beyond the grant of the Constitution, and consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislative.”
Nor is the authority of Mr. Jefferson less explicit, when in the Kentucky Resolutions, he says: “the government, created