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few of the states, at an early period of our history, under the influence of political leaders who were opposed to the general government, declared their opinion by formal resolves, that the power of interpretation and construction resided alone in themselves. These expressions of opinion, however, were mere brutum fulmen ; they were generally repudiated at the time; they led to no practical results; they did not impede the harmonious working of our institutions.
§ 130. In a very few instances, prior to the late war, certain states, by some one or by all of the departments of their governments, formally resisted the authority of the nation to decide upon its own powers.
The three most notable of these attempts will be mentioned. One was the Nullification Ordinance of South Carolina, which I pass by with this simple reference. Another occurred during the presidency of General Jack
The State of Georgia had passed certain laws respecting the Indian tribes within her territory, forbidding, among other things, any communication by white persons with such Indians except in the manner authorized by those statutes. Two missionaries, deeming this legislation to be in contravention to the Constitution of the United States, and therefore null and void, did have communication with the Indians in the prosecution of their calling as religious teachers. For this offence they were tried by Georgia courts, condemned and punished. Attempting to bring their case before the Supreme Court of the United States to be reviewed, the state government of Georgia at first refused to recognize the jurisdiction of that national tribunal ; and after the Supreme Court had heard and decided the cause, pronouncing the law in question unconstitutional and void, and the imprisonment of the parties illegal, the state still refused to be bound by the judgment, and, in fact, never did yield to its authority.2
1 See the " Virginia Resolutions of 1798,” and the answers thereto of Delaware, Rhode Island, Massachusetts, New York, Connecticut, New Hampshire, and Vermont. Elliot's Debates, Vol. 4, pp. 528–539.
See also, especially the “ Kentucky Resolutions of 1798 and 1799.” Ibid. p 540.
2 Worcester v. The State of Georgia, 6 Pet. 515.
$ 131. The last instance which I shall notice occurred in our own times. A case arose in Wisconsin which
grew of the Fugitive Slave Law. An United States marshal had been engaged in arresting a person claimed as a fugitive slave, and was brought before the state courts in a proceeding wherein he relied upon the statute of Congress as his justification. The Supreme Court of Wisconsin decided that the act called the Fugitive Slave Law was unconstitutional and void. An attempt having been made to carry the case to the national court for review, the judicial authorities of Wisconsin held that their own action was final, and refused to obey the mandate from Washington.
$132. Whatever opinion we may have in regard to the policy of Georgia's treatment of her Indian tribes, and of the expediency, morality, or even validity of the Fugitive Slave Law, we must insist that both these states acted in a revolutionary manner. If they were right, our whole political fabric has no coherence; is nothing more than a heap of sand, to be disintegrated by the slightest force that can separate the component particles. But these instances are exceptions only, never in future, let us hope, to be followed.
$ 133. While the doctrine is insisted on with the utmost emphasis, that the capacity to interpret and construe the Constitution in a final and authoritative manner belongs alone to the nation, to be exercised through its imperial government, it is not contended that the several states do not possess the same function in a subordinate and auxiliary manner. In fact, it is absolutely necessary that each commonwealth should, in many instances, primarily give a construction to the national organic law. This may be done either implicitly by their legislature in enacting, and by their governor in executing, a statute, or expressly and formally by their judiciary in passing upon the validity of such statute. For the Constitution, in many particulars, speaks directly to the states as political societies, limiting their legislative powers, and restraining them from adopting certain classes of laws. The question whether a proposed statute is forbidden by the Constitution must then,
1 Ablemann v. Booth, 21 How. 506.
in the first instance, be presented to the state legislature ; the question as to its validity when passed, may, in the first instance, be presented to the state courts. While the function of interpreting the organic law of the United States belongs, therefore, to the states, its exercise by them lacks the element of finality, of conclusive authority; their determinations may be reviewed, disregarded, and reversed by the general government.
$ 134. II. Does this power reside in all departments of the national government, or in some one of them?
Although it has thus been settled as a part of our civil polity, that the United States possesses the sovereign attribute of giving effect to its own Constitution, there has been more conAict of opinion in times past — and tliat conflict still exists to some extent among theorists — in respect to the question, what department of the general government is the final depositary of this power to interpret and expound the organic law, and to define the extent and character of the functions committed by the people to their national rulers, and to the several states. It has been urged by some that each department
the Executive, the Legislative, and the Judicial, - is, in this respect, entirely independent of the others; that each must decide, in regard to its own powers, for and by itself, and is not in the least controlled by the decisions and judgments of the others upon the same questions.
It has been held by others, that the Judicial Department, the Supreme Court, is, from the very nature of its official powers and capacities, the final arbiter; and that its decisions are binding, not only upon the parties to suits litigated before it, but upon the several states, and upon the Executive and Congress.
§ 135. This latter opinion has practically been adopted and acted upon by the government and the people from the commencement of our present organization. In the great majority of instances, Presidents and Congresses, as well as states, have yielded to the expositions of law as uttered by the national udiciary. So constant has been this practice, that it forms the rule; any deviations from it have been exceptional, rather
the results of individual opinion, than of any settled and defi
I might rest my preference for the doctrine that the national Judiciary alone is clothed with the high power which it has exercised, upon this general assent; but the correctness of that position can be established by considerations drawn from the Constitution, and from the nature of our government, which seem to be absolutely irresistible.
$ 136. Mr. Jefferson announced the principle that each department of the government was the sole judge of the extent and character of its powers under the Constitution, - or, in other words, was an independent interpreter of that instrument. In his private and public political writings he advocated this view with great earnestness, and acted upon it, in some instances, while President. After him, President Jackson reiterated the same dogma, brought it into bold relief, and based much of his official action upon it. I cannot but believe that the opinion adopted by these eminent men was in very great measure the result of personal qualities and temperament. The whole course of Mr. Jefferson's public life, and especially his private correspondence, show that he was bitterly hostile to the national judiciary from the very commencement of our Union. He was decidedly in favor of a form of government more democratic than ours, and looked upon the checks and balances contrived to restrain the action of the more immediate representatives of the people, with no favor. Mr Jackson possessed an iron will and determination, and was unable to yield his own opinions to those of another. In our own times the dogma under consideration has been asserted by some public men and political writers who are warm partisans of the intrinsic and absolute nationality and sovereignty of the United States. Most of these gentlemen, however, belong to a school which is disposed to unduly exalt the Congress above the other coördinate departments of the government. None of these theorists would probably admit that the President had an independent and equal capacity with Congress to interpret the Constitution and to judge of the validity of a statute. This modern school - for the ideas they represent are new
in this country, — would raise the Congress to a position equal in power to that of the British Parliament, would reduce the Executive to the political level of the British Crown, and entirely destroy the Judiciary as a coördinate department of the government. It seems to be plain, to be, indeed, selfevident, that if the conclusions reached by Jefferson and Jackson should be adopted as practical guides in the administration of public affairs, our whole organization would at once fall in pieces; but that if the later notions as to the sole authority of Congress should be accepted, the government would rapidly change into an irresponsible tyranny, for the legislature would not be restrained by those deep rooted and ancient social and traditionary sentiments which are so strong a conserving power in Great Britain.
$ 137. The national government is composed of three separate departments, to each of which is confided a distinct class of functions and duties. Yet it is not in accordance with the truth to say that each is independent of the others. Each is so completely dependent on the others that without them it could practically do nothing. Congress is to pass laws, but not to execute or expound them. It is the province of the President to execute, but he cannot make. The Judiciary must expound, and apply to particular individual suitors, but can neither make nor execute. Each is therefore a complement of the others. Of these three classes of functions, that possessed by the Congress is undoubtedly by far the most important and efficient, affecting more immediately the interests of the people. That body holds the initiative in almost all public affairs ; the President cannot execute, nor the Judiciary expound, a law until Congress has acted. The legislature must, therefore, in the very exercise of the capacities bestowed upon them, expressly or tacitly pass upon the meaning of the Constitution, and the extent of the powers they may wield. Their decision must be regarded as primâ facie correct, and must stand and be enforced by the Executive until the Judiciary shall have pronounced it wrong, and the statute a nullity. The independent power of the President would seem to be limited to the exercise of his veto, by which he