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PART SECOND.

IF WHAT MANNER AND BY WHOM IS THE CONSTITUTION TO BE

AUTHORITATIVELY CONSTRUED AND INTERPRETED; OR, THE MEANS AND COMBINATIONS FOR ASSURING THE OBSERVANCE OF THE FUNDAMENTAL LAW.

§ 121. It was shown, in the Introductory Chapter, that the study of Political Law involves not only the questions, In whose hands is placed the exercise of governmental powers ? and, To what laws is this exercise subjected ? but also the question, By what means and combinations is the observance of these laws assured ?i In other words, this department of jurisprudence includes the formal organization of the government, the distribution of powers and functions, and the checks and sanctions by which officials are kept within the limits assigned to them. I now proceed to a brief examination of the last of these questions.

$122. The Constitution of the United States is a Law, issued by the Supreme Power in the nation, — the people, as a collective political unit. This law, thus uttered by the people in their sovereign capacity, is, in some respects, addressed to and binding upon the individual members of the body politic; in most respects, it is addressed to and binding upon the different classes of officials who make up the government. Now, that an utterance of the Supreme Power may have a compulsive character, that it may truly be a law, there must be connected with it some sanction, some means of insuring obedience, of protecting the rights and enforcing the duties which it creates. Without this sanction, it would lose all the elements of a command, and become a mere request. This principle, which is confessedly true of ordinary legislation directed against the individual members of society, is no less true of the organic law directed against the government itself. A sanction must be connected with the latter as well as with the former. The great difference in the nature of the two classes of laws, in the persons to whom they are addressed, and in the acts or forbearances which they enjoin, must, of course, involve a corresponding difference in the sanctions appropriate to them. As the Constitution enjoins political acts and forbearances, the means for enforcing these commands will be, in a great measure, political. Since official persons, whether their functions be legislative, administrative, or judicial, must, from the very nature of their position, be clothed with an ample discretion, the ordinary punishments of the criminal law would be very inappropriate to restrain them within their prescribed limits of action. Should the transgression, however, be, not a mere mistake in the exercise of discretion, but wilful, intentional, or corrupt, there is no reason why the official person should not incur and suffer the same kind of penalties that are inflicted on private offenders. But the civil society which has constructed a government, and carefully defined the limits of the political powers which can be exercised thereby, may be as deeply injured by the honest misconceptions, the well-meant transgressions of its agents, as by their wilful and corrupt usurpations. Some remedy, therefore, must be provided for these violations of the organic law, these political acts which, though not wilful, are unwarranted by the Constitution.

1 See $ 10.

There are three kinds or classes of sanctions which may be applied to the persons who compose the government, and by which a due observance of the provisions of the Constitution may be procured. (1) A civil officer may be impeached when his transgression is wilful, or corrupt. (2) The ordinary punishments of the criminal law may be inflicted when the transgression is made a crime. (3) The political act which is beyond the limits of power defined in the Constitution may be judicially pronounced a nullity. The first and second of these sanctions are personal penalties inflicted upon the offender, and do not affect the nature and quality of the act which he has done; the third is not a personal punishment, it is not directed against the official, but attaches to the

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act which he has done, and deprives it of any validity. If this act is in the form of a statute, it is void, creating no rights and duties ; if in the form of an administrative measure, its political character is gone, and it becomes a mere private trespass.

§ 123. To apply these sanctions, and especially the third, the Constitution must be interpreted. In order to ascertain whether any political measure is in excess of the powers conferred upon the government, the number and extent of those powers must be fixed in an authoritative manner. Unless there exists some means of determining the meaning of the organic law, and thus of furnishing a criterion which may be applied to the acts of official persons, all attempts to enforce that law and restrain its violations would result in confusion. The first point to be examined, therefore, is, whether the Constitution can be authoritatively construed and expounded, and if so, by whom?

§ 124. This question must be divided, and its complete answer involves two others. 1. Does the function of interpreting and construing, in a final and authoritative manner, reside in the United States as a body politic, or in the separate states ? And 2. Does it reside in all the departments of government, or in some one of them? These latter inquiries are entirely distinct; neither involves the other. It may be conceded that the authority in question belongs to the nation, to the exclusion of the states; but it does not necessarily follow that it is committed to any particular department of the government, or that it is shared in common by all.

The discussion of these two branches of the general subject, must, therefore, be kept distinct.

$ 125. I. Does the function of interpreting and construing the Constitution in a final and authoritative manner, reside in the United States as one body politic, or in the separate states ? I need not dwell upon this portion of the theme in any extended manner. The course of reasoning which has been thus far followed applies here with equal force ; and the conclusions that were reached through that reasoning are a definite answer to the present inquiry. If the Constitution of these United

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States was formed by one self-existent political society, by the one people of this country, in virtue of their inherent attributes of sovereignty, then it follows, as a matter of course, that the capacity to interpret, construe, and give force to the provisions of that organic law, must exist in and through them; that the government which they have organized and set up, must have sole jurisdiction to pronounce upon the extent and character of the powers delegated to it by its own authors.

§ 126. In truth, as a practical fact resulting from the nature of our institutions, the people themselves, the aggregate of individuals who compose the body politic, are, through their electors, the final arbiters who must judge of the acts of their national rulers, and give construction to the instrument which they themselves have framed. All questions both of power and policy must finally be resolved by them. In the course of time their will becomes represented in all departments of the government, and is felt in all proceedings of that govern

There are times, indeed, when the constituted authorities do not reflect the present thought and wish of a majority of the citizens; and the whole scheme was so contrived with checks and balances, that the governmental action should be steady, the changes gradual, the progress uniform. But elections are so frequent, and all officers, whether elective or appointed, so completely derive power from their constituents, that in the long run the deliberate conviction of the nation is executed by their agents. However much we may theorize, this is a fact which cannot be gainsaid or avoided. It is a fact which gives a practical and complete answer to the claims of state sovereignty, and the schemes for state aggrandizement and independence. Our whole history testifies to this inherent capacity of the people to interpret their own organic law.

$ 127. But while the people are thus the final judges, their decision can only be made by and through the government which they have ordained and established. This nation is not a democracy, and the constituted order of things must be strictly observed in all political acts. The government, through some or all of its departments, although it draws its inspiration from the people, is the sole actor in giving force and effect to

the popular will ; it is the proximate interpreter of the Con

; stitution ; it practically decides as to the extent and character of the powers which it may wield. If the people are dissatisfied with the judgment, they put other persons in the place of those rulers who have failed to represent the nation's wish; a new policy is inaugurated, and the error is thus corrected. In the two great political departments, the Legislative and the Executive, this change can be speedily made, and Congress and President readily brought into accord with the people. In the judicial department the process must be slower, but it is none the less finally certain ; judges, though appointed for life, will, at last, utter the opinion of the nation upon questions of constitutional power. The courts are a balance-wheel; they give steadiness to the progress ; they equalize the development; they cannot be a barrier in the way of all onward movement.

128. To these general propositions all schools of theorists assent, except the ultra partisans of complete state sovereignty and independence. Madison, Jackson, and Taney, are as strong and pronounced in their opinion that the general government possesses the sole capacity to interpret and expound the organic law finally and authoritatively, and that whatever function may belong to the states is subordinate and auxiliary, as are Hamilton, Jay, Marshall, or Story. It is the settled conviction of the country; a dogma which has been so generally accepted that it has passed into the common law of the land, in accordance with which the action of the national and state governments has proceeded with few interruptions. None but those who have accepted the teachings of Mr. Calhoun as the true exposition of our civil polity, have formally denied, or do now formally deny, this proposition. But, as has already been stated, these disorganizing views of Calhoun and his disciples have never been controlling in any department of the United States gorernment, nor in many of the separate states.

129. It is true that there have been a few exceptions to the almost uniform acquiescence of the local commonwealths to the claim of the United States to this branch of paramount sovereignty, even before the breaking out of the late war. A

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