Editor’s Note: This essay was written by Spencer Roane under the pseudonym Amphictyon in 1819.
I. To the Editor of the Enquirer :
SIR: I have read with considerable attention the opinion pronounced by the Chief Justice of the U. S. in the case of McCulloch against the State of Maryland. In that opinion we are informed, First, That it is the unanimous and decided opinion of the Supreme Court, that the Act to incorporate the Bank of the U. S. is a law, made in pursuance of the Constitution, and is a part of the supreme law of the land; and, Secondly, That the court is also unanimously of opinion that the law of Maryland, imposing a tax on the Bank of Maryland, is unconstitutional and void. We are not informed whether this whole court united in the course of reasoning adopted by the Chief Justice, nor whether they all accorded in the various positions and principles which he advanced. It may be, that some of them admitted that the bank law is unconstitutional, and yet did not think proper to deny that the several States are parties to the Federal compact, it may be, that some of them, without giving to the term “necessary” the liberal and latitudinous construction attached to it by the Chief Justice, and before him by Mr. Secretary Hamilton, may yet have thought that the measure of incorporating a bank was “necessary and proper” for carrying into execution some of the specific powers granted to Congress; or some of them may have believed that it was the duty of Congress to have judged of that “necessity and propriety;” and having exercised their undoubted functions in so deciding, that it was not consistent with judicial modesty to say “there was such cessity,” and thus to arrogate to themselves a right of putting their veto upon a law; or it may be, that some members of the court thought the bank law “necessary and proper” to carry into effect one power, whilst others thought that it was the instrument for effectuating another and a different power. Although they have all arrived at the same place, they may have traveled thither by different roads; although they have come to the same conclusion, yet their reasons may have been considerably variant from each other. I confess, that as a citizen, I should have been better pleased to have seen the separate opinions of the judges. The occasion called for seriatim opinions. On this great constitutional question, affecting very much the rights of the several States composing the confederacy, the decision of which abrogated the law of one State, and is supposed to have formed a rule for the future conduct of other States, the people had surely a right to expect that each judge should assign his own reasons for the vote which he gave. This court seems to have thought that it was sitting as an umpire to decide between the conflicting claims of a sovereign State on the one hand, and the whole United States on the other, and yet the judges decline the expression of the principles on which they have separately formed their judgments! Having thus declined the declaration of their separate opinions, we are driven, however reluctantly, to the conclusion that each judge approves of each argument and position advanced by the Chief Justice.
That this opinion is very able every one must admit. This was to have been expected, proceeding as it does from a man of the most profound legal attainments, and upon a subject which has employed his thoughts, his tongue, and his pen, as a politician, and an historian for more than thirty years. The subject, too, is one which has, perhaps more than any other, heretofore drawn a broad line of distinction between the two great parties in this country, on which line no one has taken a more distinguished and decided rank than the judge who has thus expounded the supreme law of the land. It is not in my power to carry on a contest upon such a subject with a man of his gigantic powers, but I trust it will not be thought rash or presumptuous to endeavor to point out the consequences of some of the doctrines maintained by the Supreme Court, and to oppose to their adjudication some of the principles which hare heretofore been advocated by the Republican party in this country.
There are two principles advocated and decided on by the Supreme Court, which appear to me to endanger the very existence of State Rights. The first is the denial that the powers of the Federal Government were delegated by the States; and the second is, that the grant of powers to that government, and particularly the grant of powers “necessary and proper” to carry the other powers into effect, ought to be construed in a liberal, rather than a restricted sense. Both of these principles tend directly to consolidation of the States, and to strip them of some of the most important attributes of their sovereignty. If the Congress of the United States should think proper to legislate to the full extent, upon the principles now adjudicated by the Supreme Court, it is difficult to say how small would be the remnant of power left in the hands of the State authorities.
The first position, that the powers of the Federal Government are not delegated by the States, or in other words, that the States are not parties to the compact, is untenable in itself, and fatal in its consequences. But for what purpose, I will ask, did the Federal Court decide that question? To ascertain whether the bank law was consistent with the Constitution, or not, it was necessary, I apprehend, that the court should have enquired into the source from whence the authority of the government was derived. Whether the powers of the Federal Government were delegated to it by the States in their sovereign capacity, or by the people, can make but little difference as to the extent of those powers. In either case, it is still true that the powers of that government are limited by the charter which called it into existence; in either case, it is true that the departments of that government cannot either separately or conjointly transcend those limits without affecting the rights and liberties of the States, or of the people: in either case, the construction of the words of the Constitution ought to be the same. The decision of that question was then unnecessary; the court traveled out of the record to decide a point not necessarily growing out of it; the decision of that point is, therefore, obiter, extra-judicial, and not more binding or obligatory than the opinion of any other six intelligent members of the community. The opinion is erroneous. The several States did delegate to the Federal Government its powers, and they are parties to the compact. Who gave birth to the Constitution? The history of the times, and the instrument itself furnish the ready answer to the question. The Federal Convention of 1787 was composed of delegates appointed by the respective State legisatures; and who voted by States; the Constitution was submitted on their recommendation, to conventions elected by the people of the several States, that is to say, to the States themselves in their highest political and sovereign authority: by those separate conventions, representing, not the whole mass of the population of the United States, but the people only within the limits of the respective sovereign States, the Constitution was adopted and brought into existence. The individuality of the several States was still kept up when they assembled in convention: their sovereignty was still preserved, and the only effect of the adoption of the Constitution was to take from one set of their agents and servants, to wit: the State governments, a certain portion of specified powers, and to delegate that same portion to another set of servants and agents, then newly-created, namely, the Federal Government. If the powers of the Federal Government are to be viewed as the grant of the people, without regard to the distinctive features of the States, then it would follow that if a majority of the whole sovereign population of the United States had ratified the Constitution, it would immediately have been binding on the minority, although that minority should consist of every individual in one or more States. But we know that such was not the case. Each State was an independent political society. The Constitution was not binding on any State, even the smallest, without its own free and voluntary consent. Although nineteen-twentieths of the whole people of the United States had approved of and adopted the Constitution, yet it was not a constitution obligatory on Rhode Island, until that small State became a party to it by its own act. The respective States then in their sovereign capacity did delegate to the Federal Government its powers, and in so doing were parties to the compact. The States not only gave birth to the Constitution, but its life depends upon the existence of the State governments. The Senate derives its being from them. The President is elected by persons who are as to numbers partly chosen on the Federal principle. Destroy the State governments, and you, by the same blow, destroy the Senate, and with it the Constitution. Again, how may this Constitution be amended or reformed? By the legislatures of three-fourths of the States, or by conventions of the same number of States in the manner provided for by the Fifth Article. The States then gave birth to the Constitution; they support its existence, and they alone are capable of reforming or changing its form and substance, and yet we are informed by a solemn adjudication that its powers are not derived from that source, and consequently, that they are not parties to it! This doctrine, now solemnly promulgated by the highest judicial tribunal of that government, is not, however, a novelty in our history. In the years 1798 and ’99, after the Congress of that time had, by the force of implication passed a sedition law, and vested the President with arbitrary and despotic powers over the persons of alien friends, after many political writers, and some of the Federal courts had advocated the absurd and dangerous doctrine that the common law of England made a part of the law of these States, in their united and national capacity, then it was that this doctrine, which denies that the States are parties to the Federal compact, was pressed with great zeal and ability. Having attempted to place shackles on the press, the glorious work could not be completed without imposing moral fetters on the independent minds of the several State legislatures. The doctrine, however, was exposed and refuted, and I did not expect that it would be brought forward at this day under the supposed sanction of the highest judicial authority.
The doctrine, if admitted to be true, would be of fatal consequence to the rights and freedom of the people of the States. If the States are not parties to the compact, the legislatures of the several States, who annually bring together the feelings, the wishes, and the opinions of the people within their respective limits, would not have a right to canvass the public measures of the Congress, or of the President, nor to remonstrate against the encroachments of power, nor to resist the advances of usurpation, tyranny and oppression. They would no longer be hailed as the sentinels of the public liberty, nor as the protectors of their own rights. Every government, which has ever yet been established, feels a disposition to increase its own powers. Without the restraints which are imposed by an enlightened public opinion, this tendency will inevitably conduct the freest government to the exercise of tyrannized power. If the right of resistance be denied, or taken away, despotism inevitably follows. It has, however, been supposed by some that the Constitution has provided a remedy for every evil: that the right of the State governments to protest against, or to resist encroachments on their authority is taken away, and transferred to the Federal Judiciary, whose power extends to all cases arising under the Constitution; that the Supreme Court is the umpire to decide between the States on the one side, and the United States on the other, in all questions touching the constitutionality of laws, or acts of the Executive. There are many cases which can never be brought before that tribunal, and I do humbly conceive that the States never could have committed an act of such egregious folly as to agree that their umpire should be altogether appointed and paid by the other party. The Supreme Court may be a perfectly impartial tribunal to decide between two States, but cannot be considered in that point of view when the contest lies between the United States and one of its members.
That I am not singular in the opinion which I entertain upon this subject, is very certain. There have been two judicial decisions in two of the largest States in the Union, which expressly decide that the several States are parties to the Federal compact. I refer to the decision of the Supreme Court of Pennsylvania in the case of the Commonwealth against William Cobbett reported in the Third Volume of Dallas; and to the decision of the Court of Appeals of Virginia in Hunter against Martin, reported in Fourth Munford. But I cannot forbear on this occasion from bringing to my aid a part of the report of a committee of the House a of Delegates of Virginia, in the year 1799, in which this subject is enforced with reasoning the most cogent and explained in language the most perspicuous. It will be recollected that in the session of 1798, sundry resolutions had been adopted complaining of sundry acts of usurpation on the part of Congress, and particularly of the alien and sedition laws. Those resolutions having been disapproved of by most of the other State legislatures, became the subject of examination at the succeeding session, and produced that remarkable commentary which has generally been known by the name of Madison’s report. The third resolution is as follows:
“That this Assembly doth explicitly and peremptorily declare that it views the powers of the Federal Government, as resulting from the compact, to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact; and that in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the States who are parties thereto, have the right, and they are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”
“On this resolution, the Committee have bestowed all the attention which its importance merits: they have scanned it not merely with a strict, but severe eye; and they feel confidence in pronouncing, that in its just and fair construction, it is unexceptionably true in its several positions, as well as constitutional and conclusive in its inferences.”
“The resolution declares, first, that ‘it views the powers of the Federal Government, as resulting from the compact to which the States are parties;’ in other words, that the Federal powers are derived from the Constitution, and that the Constitution is a compact to which the States are parties.
“Clear as the position must seem, that the Federal powers are derived from the Constitution, and from that alone, the Committee are apprized of a late doctrine which opens another source of Federal powers, not less extensive and important, than it is new and unexpected. The examination of this doctrine will be most conveniently connected with a review of a succeeding resolution. The Committee satisfy themselves here with briefly remarking, that in all the contemporary discussions and comments which the Constitution underwent, it was constantly justified and recommended on the ground, that the powers not given to the government were withheld from it; and that if any doubt could have existed on the subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the Twelfth Amendment, now a part of the Constitution, which expressly declares, that the powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The other position involved in this of the resolution, namely: “that the States are parties to the Constitution or compact” is, in the judgment of the Committee, equally free from objection. It is, indeed, true that the term “States” is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means the separate sections of territory occupied by the political societies within each ; sometimes the particular governments, established by those societies; sometimes those societies as organized into those particular governments; and, lastly, it means the people composing those political societies, in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words; yet little inconveniency is produced by it, where the true sense can be collected with certainty from the different applications. In the present instance, whatever difference, whatever different constructions of the term “States,” in the resolution may have been entertained, all will at least concur in the last mentioned; because in that sense, the Constitution was submitted to the “States.” In that sense the “States” ratified it; and in that sense of the term “States,” they are consequently parties to the compact from which the powers of the Federal Government result.
The next position is, that the General Assembly views the powers of the Federal Government “as limited by the plain sense and intention of the instrument constituting that compact,” and “as no further valid than they are authorized by the grants therein enumerated.” It does not seem that any just objection can lie against either of these clauses. The first amounts merely to a declaration that the compact ought to have the interpretation plainly intended by the parties to it; the other, to a declaration, that it ought to have the execution and effect intended by them. If the powers granted be valid, it is solely because they are granted; and if the granted powers are valid, because granted, all other powers not granted must not be valid.
The resolution having taken this view of the Federal compact, proceeds to infer, “that in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the States who are parties thereto, have the right, and are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”
It appears to your Committee to be a plain principle, founded on common sense, illustrated by common practice, and essential to the nature of compacts, that where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was founded by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, is well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to receive their interposition.
It does not follow, however, that because the States as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposer either in hasty manner doubtful and inferior occasions. Even in the case of ordinary conventions between different nations, when, by the strict rule of interpretation, a breach of a part may be deemed a breach of the whole: every part being deemed a condition of every other part, and of the whole, it is always laid down that the breach must be both wilful and material to justify an application of the rule. But in the case of an intimate and constitutional union, like that of the United States, it is evident that the interposition of the parties in their sovereign capacity can be called for by occasions only, deeply and essentially affecting the vital principles of their political system.
The resolution is accordingly guarded against any misapprehension of its object, by expressly requiring for such an interposition, the case of a deliberate, palpable, and dangerous breach of the Constitution, by the exercise of powers not granted by it.” It would be a case, not of a light and transient nature, but of a nature dangerous to the great purposes for which the Constitution was established. It must be a case, moreover, not obscure or doubtful in its construction, but plain and palpable. Lastly, it must be a case not resulting from a partial consideration, or hasty determination; but a case stamped with a final consideration and deliberate adherence. It is not necessary, because the the resolution does not require that the question should be discussed how far the exercise of any particular power, ungranted by the Constitution, would justify the interposition of the parties to it. As cases might easily be stated, which none should contend, ought to fall within that description; cases on the other hand, might, with equal ease, be stated, so dangerous and so fatal as to unite every opinion in placing them within the description. “But the resolution has done more than guard against misconstruction, by expressly referring to cases of a deliberate, palpable, and dangerous nature. It specifies the object of the interposition which it contemplates, to be solely that of arresting the progress of the evil of usurpation, and of maintaining the authorities, rights and liberties appertaining to the States, as parties to the Constitution. “From this view of the resolution, it would seem inconceivable that it can incur any just disapprobation from those, who laying aside all momentary impressions, and recollecting the genuine source and object of the Federal Constitution, shall candidly and accurately interpret the meaning of the General Assembly. If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it, in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it: there would be an end to all relief from usurped power—and a direct subversion of the rights specified or recognized under all the State Constitutions, as well as a plain denial of the fundamental principles on which our independence itself was declared.
But 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 forces 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 forces of the Constitution before the Judiciary, must be equally authoritative and final with the decisions of this 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 forces of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution that dangerous powers not delegated, may not only be usurped and excused by the other departments, but that the judicial department may also 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 violation by one delegated authority, as well as by another; by the Judiciary, as well as by the executive, or the Legislature.
“However true, therefore, it may be that the judicial department, is, in all questions submitted to by the forces of the Constitution, to decide in the last resort; this resort must necessarily be deemed the last in relation to the authorities of other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power, would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond all possible reach of any rightful remedy, the very Constitution, which all were instituted to preserve.
According to David Johnson’s 2021 bio of Spencer Roane published by the LSU Press, “it is now established that Judge Brockenbrough wrote the [Amphictyon] articles…” (p. 213, n. 14), NOT Roane.
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