A National or Federal Government

SCOTUS

Part IV of a four part series. Part I, Part II, Part III.

I come now to urge my objection to the jurisdiction of the court. It goes on the ground, that it is not competent to the general government, to usurp rights reserved to the States, nor for its courts to adjudicate them away. It is bottomed upon the clear and broad principle, that our government is a federal, and not a consolidated government. I differ entirely from the Supreme Court when they say, that by that tribunal, alone, can the decision which they have made be made; and when they further say, that on the Supreme Court has the Constitution devolved that important duty.

I am not able to say with certainty from the language of the Supreme Court, whether they aver our government to be a national government, or admit it to be a federal one. Two very respectable writers seem to be at issue upon this question, and I shall not undertake to determine the controversy, absolutely, between them. Such is the indistinctiveness of the language used by the court that it might not be perfectly easy to do it. On the one hand they use the term people in a sense seemingly clear to impart the people of the United State, as contradistinguished from the people of the several States, from which the inference would arise, that the States were not known in the establishment of the Constitution, and, on the other hand, they admit that the State of Maryland is a sovereign State, and a member of the general government, and that the conflicting powers of the government of the Union and of its members are to be settled by the decision. It is not easy to discern how a government whose members are sovereign States, and whose powers conflict with those of such States, can be a national or consolidated government. These traits indicate, only, a federal government: a consolidated government, on the other hand, is one which acts only on individuals, and in which other States and governments are not known. The opinion of the Supreme Court seems further to incline to the side of consolidation, from their considering the government as no alliance or league, and from their seeming to say that a federal government must be the offspring of the State governments. On the contrary, I contend, that those governments have no power whatever to make or to alter the Constitution, and that if a confederal government can be established at all, it must be by the people of the several States, and by them only.

Whatever may be the language of the court, their doctrines admit of no controversy. They show the government to be in the opinion of the court, a consolidated and not a federal government. They are wholly inapplicable to a government of the latter character. Differing from the court entirely on this subject, I will beg leave to give my own view of it.

The Constitution of the United States was not adopted by the people of the United States, as one people. It was adopted by the several States, in their highest sovereign character, that is, by the people of the said States, respectively; such people being competent, and they only competent, to alter the pre-existing governments operating in the said States.

We are told by the Federalist that the Constitution was founded on the assent of America, but that this assent was given by them, not as individuals composing one entire nation, but as composing the distinct States: and that the assent is that of the several States, derived from the supreme authority in each State, that of the people thereof respectively: and that therefore, the establishment of the Constitution is not a national, but a federal act. We are further told on the same page, that its being a federal and not a national act is obvious from this, that the ratification results not from a majority of the people of the Union, nor even from that of majority of the States; but that it must result from the unanimous assent of all the States that are parties to it, differing not otherwise from their ordinary assent, than its being expressed, not by the legislative authority, but by the people themselves: and that were the people regarded in this transaction, as forming one nation, the will of the majority would bind the minority, but that neither a majority of votes, nor of States, has decided. It is again stated in the same book that the States of New Hampshire, Georgia, Rhode Island, Jersey, Delaware, South Carolina, and Maryland, being a majority of the then States, did not contain one-third of the people of the Union; so that a majority of the States were a monarchy of the people of the Union; and that if you even added New York, and Connecticut (to make nine, the number of States necessary to the adoption), the people in them all would be still less than a majority. If to this fact you add another, namely, that while these nine adopting States might carry the Constitution by mere majorities, the non-adopting States might be unanimously against it, the portion of the people of America, who, in that case, might adopt the government, would be, indeed, extremely small. This was not, at the time, an extreme or improbable supposition. It was very reasonable to suppose that the people of the great States, would be almost unanimously against a government, which not only vastly extended the sphere of general legislation, but put the small States, in the Senate, on an entire equality with themselves. A government adopted by this fragment of people of the United States, could not be justly considered as a national government, but as a federal one; the character of which government is, that all its members, however small, are to be regarded as sovereignties, and placed upon an equal footing.

In the Convention of Virginia, it was said by Mr. Madison, that the people are parties to the government, but not the people as composing one great body, but as composing thirteen sovereignties: that were if the act of the former, the assent of a majority would be sufficient, and that that assent being already obtained, (by the previous adoptions of other States), we need not now deliberate upon it. It was said in the same body by Mr. H. Lee that if thii were a consolidated government, it ought to be ratified by the people as individuals, and not as States; and that if Virginia, Connecticut, Massachusetts, and Pennsylvania had ratified it, these being a majority of the people, would by their adoption have made it binding on all States, which not being so, shows that it is not a consolidated government.

So it is stated in the report of 1799, that the powers of the general government result from a compact, to which the States are parties: and, again, that the States are parties to the compact, not in the other senses in which the term “state” is sometimes used, but in the sense of the people—of the States, in their highest sovereign capacity, and that in that sense they are consequently parties to the compact.

Can it be said, after this, that the Constitution was adopted by the people of the United States as one people? Or can it be denied that it was adopted by the several States, by the people of the said States respectively, and are they not parties to the compact?

The Supreme Court seems to have laid great stress upon the exexpression, “We, the people of the United States,” contained in the preamble to the Constitution. This expression does not necessarily import the people of America, in exclusion of those of the several States.

In the last sense it may be justly taken, and thus correspond with the fact, as to its adoption. But if this were not so, this declaration in the preamble, would be controlled by the fact of the case. A declaration in the preamble of a deed, that it was executed by three persons, does not make it a deed of them all, if it were executed by two of them only: and far less can it make that the deed of A, which was only executed by B. It is not here to be forgotten that the preamble is no part of the Constitution. If it were, it would carry to Congress all powers which are conducive to “the general welfare f which is an idea long since exploded.

The opinion of the Supreme Court would seem to import, as aforesaid, that ours is not a federal government because it was not adopted by the governments of the several States. The old confederation, I admit, was adopted by the legislatures of the several States: but the validity of that adoption may well be questioned. That adoption took place, in the infancy of our Republic, and when we had not emancipated ourselves from the opinion, which still prevails in Europe, that the sovereignty of states abides in their kings, or governments. That is, in this country, and at this day, an outrageous heresy. None but the peopleof a State, in exclusion of its government, are competent to make or reform a government of whatever nature. The governments are their deputies, for limited and denned objects. It is a principle of common sense, as well as common law, that a deputy cannot ,make a deputy. The power of changing the government was, therefore, not vested in the governments, but remained with the people thereof. To say, therefore, that there can be no federal government, unless it be adopted by the governments of the several States, is to say, that there can be no federal government at all. A federal government can be made, as ours was made, by the people of the several States, and can be made by none other.

The Supreme Court would, perhaps, infer that ours is a consolidated, and not a federal government from the unequal representation which exists, (considered in relation to the several States), in the House of Representatives; and from that government’s acting, in some instances, directly upon the people. Neither of these circumstances operates that effect, either under the opinions of learned writers on that subject, in general, nor under authorities particularly applicable in our own country.

As to the first, Montesquieu tells us that the Lycian Republic was an association of twenty-three towns, unequally represented in the common council, that these towns contributed to the expenses of the state, according to the ratio of suffrage, and that the judges and town magistrates of the several towns, were elected not by themselves, but by the common council. That republic was entirely analogous to ours in the first two particulars, and stronger in the last; and yet that learned author says, “Were I to give a model of an excellent federal republic, I should pitch upon that of Lycia.”

This idea of that writer is entirely approved by the authors of the Federalist. After quoting the facts just mentioned, respecting the Lycian Republic, and saying of the appointment of the judges and magistrates of the respective cities, that it was a most delicate species of interference in their internal administration, and which seemed exclusively to betray the local jurisdictions, this work entirely adopts objections founded on those circumstances, and which it entirely overrules, are “the novel refinements of an erroneous theory.”

So it is said in the same book, (the Federalist), that it is not essential to a confederacy, that its authority should be restricted to its members, in their collective capacities, without reaching the individuals of whom they are composed. Again, it is said, that so long as the separate organization of the members of a confederate republic be not abolished, so long as it exists for local purposes, it would still be in fact and theory, an association of states, or a confederacy: it is further said, that our Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national government, by allowing them a direct representation in the Senate, and leaves in their possession, certain exclusive, and very important portions of the sovereign power; and that this corresponds, in every rational import of the terms, with the idea of a federal government: again, it is said, that the State governments are constitutent and essential parts of the Federal Government, and that the equal votes of the States in the Senate, is, at once, a constitutional recognition of the portion of sovereignty remaining in the States, and an instrument for preserving them. It is said, in another part of the same work that each State ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act, and that in this relation, the Constitution is a federal and not a national Constitution: and, again, that the States are considered as distinct and independent sovereignties by the proposed Constitution. In the same book, while it is admitted that the government has many national traits or features, and is of a mixed character, it is asserted to have at least as many federal as national features.

In the Convention of Virginia, it was said, by Mr. Madison, that the government is of a mixed nature: that in some respects it is of a federal, and in others, of a consolidated nature, and that it is shown to be federal by the equal representation in the Senate.

The federal character of the government is further manifested by the provision (2d Sec. of 1 Art. of Consti.), that each State is to have at least one member in the House of Representatives; and this, although its population should fall below that of a congressional district. On what other principle is this, than that the States are preserved and the government a federal one?

The court has been pleased to say that no State is willing to allow others to control the measures of the general government. If those measures violate the rights of all the States, they will be pleased at it. But this is entirely unimportant. Each State has a several interest of its own under the compact, which it is its right and duty to preserve.

It results from those principles and authorities, that neither by the mode of its adoption, nor in consequence of its having some national features, others being purely federal, and the State governments being indispensably necessary to be kept up to sustain that of the Union, is our government to be considered a consolidated one. It is a federal government, with some features of nationality. The State governments are not only kept up in it, but they are so important that they may actually alter and even abolish the present system. By the Fifth Article of the Constitution, the State legislatures may institute amendments to the Constitution, which when reported to and ratified by them, became a part of the Constitution. They may thus amend that instrument from the word, “whereas;” and thus they may even abolish it. Is it not absurd to say, after this, that this is not a federal government, and that the State governments are not known in it? They can mould and modify, the general government, at their pleasure, and they can arrest its operations by refusing to appoint senators. The power here admitted to belong to the State legislatures to amend the Constitution, is no departure from a principle I have before contended for. These amendments are, in effect, made by the people themselves, of the several States. They are made by their legislatures, by virtue of a specific warrant of attorney.

Our general government then, with due submission to the opinion of the Supreme Court, is as much a federal government, or a “league,” as was the former confederation. The only difference is, that the powers of the government are much extended.

In fact, this government may be, in some sense, considered, as a continuation of the former federal government. We are told in the Federalist, that “in truth, the general principles of the Constitution may be considered less as absolutely new, than as an expansion of the principles contained in the articles of confederation, though the enlargement of the powers is so great, as to give it the aspect of an entire transformation of the old government.” Again, it is said, that the new Constitution consists less in the addition of new powers, to the government of the Union, than in the invigorating of its original powers. It was also said by Mr. Madison, in the Virginia Convention, that the powers vested in the proposed government, are not so much an augumentation of powers in the general government, as a change rendered necessary for the purpose of giving efficacy to those vested in it before.

If, then, everything conspires to show that our government is a confederal, and not a consolidated one, how far can a State be bound by acts of the general government violating, to its injury, rights guaranteed to it, by the federal compact? If the founders of our Constitution did not foresee the elashings between the respective governments, nor provide an impartial tribunal to decide them, it only affords another instance of the imperfection of the instrument: of which imperfection its authors themselves were most sensible. We are not without a precedent in favor of such a tribunal: for we are told by Vattel that the Princes of Neufchatel established in 1406 the Canton of Bern the judge and perpetual arbitration of their disputes; and many other similar instances are there given.

That great writer also tells us, that among sovereigns who acknowledged no superior treaties form the only mode of adjusting their several pretensions, and are sacred and inviolable; and that the faith of treaties form the only security of the contracting parties. It is further said by him, that neither of the contradicting parties, has a right to interpret the pact or treaty, at his pleasure; for that makes me promise to grant or give whatever you have a mind to, contrary to my intention and beyond my real agreement.

In the Federalist, the supremacy of either party, in such cases, seems denied. It is said, in substance, that the ultimate redress against unconstitutional acts of the general government, sanctioned by the authority of their Judiciary, there being thus an invasion of the rights of the people, may be redressed by them, and people, and effect a change. Again, it is said, that we may safely expect that their State legislatures will be ready to sound the alarm to erect barriers against the encroachments of the national authority. It is further said, in the report of 1799, that an appeal was emphatically made, (and not without effect), in the conventions, to the State governments, that they would descry danger at a distance, and sound the alarm to the people. Another writer entitled to consideration has also said, that in case of infractions of the Constitution, by the general government, the State legislatures will sound the alarm; as was done by that of Massachusetts, in relation to what has been called the suability of States.

In the Virginia Convention, it was said by Mr. Randolph, that if Congress should attempt an usurpation of power, the influence of the State governments will stop it in the bud of hope; and again, that the States can combine, to insist on amending the ambiguities in the Constitution.

In the celebrated report of 1799, it is stated, as before has been said, that the authority of the Constitution is paramount over that of the governments: that in the case of an infraction of the Constitution, the States have a right to interpose, and arrest the progress of the evil; and that it is essential to the nature of compacts, that when resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, whether the compact has been violated, and that, in this respect, there can be no tribunal above their authority. It is further stated, in the said report, that if this cannot be done, there would be an end to all relief from usurped power, and that the principle on which our independence was established, would be violated. It is further said, that the Judiciary is not, in such cases, a competent tribunal, for that there may be many cases of usurpation, which cannot be regularly brought before it; that if one of the parties, in such cases, is not an impartial and competent judge, neither can its subordinate departments; and that, in truth, the usurpation may be made by the Judiciary itself. It is further said, that the last resort by the Judiciary, is in relation to the authority of the other departments of the government, and not in relation to the rights of the parties to the compact under which the Judiciary is defined; and that on any other hypothesis, the delegation of the judicial power would annul the authority delegating it, and its concurrence in usurpation, might subvert, forever, that Constitution which all were interested to preserve.

It, too, says, the report of 1799 (p. 40),if the acts of the Judiciary be raised above the authority of the sovereign parties to the Constitution, so may the decisions of the other departments of the general government, which are not carried before the Judiciary, by the forms of the Constitution. This would subject the State rights to violation by the chief executive magistrate also, without appeal.

There have been some judicial decisions in full accordance with these principles. In the Court of Appeals of Virginia, in the case of Hunter v. Fairfax, that court deemed it its duty to declare an act of Congress unconstitutional, although it had been sanctioned by the opinion of the Supreme Court of the United States. It made this decision, on behalf of what it deemed the reserved rights of that State under the federal compact. In the State of Pennsylvania, in the case of Commonwealth v. Cobbett, the Supreme Court with the learned and venerable McKean at its head, resolved in the most explicit terms, that all powers not granted to the government of the United States, remained with the several States; that the Federal Government was a league or treaty, made by the individual States as one party, and all the States as another; and that when two nations differ about the construction of a league or treaty between them, neither has the exclusive right to decide it; and that if one of the States should differ from the United States, as to the extent of the grant made to them, there is no common umpire between them, but the people; and went on to render a judgment bottomed on these principles, and in opposition to the provisions of an act of Congress.

The Legislature of that State, also, by an act, instructing their senators to oppose the proposed bank law of 1811, has shown it3 entire accordance in these principles. The terms of that act are so emphatical and appropriate, that I must beg leave to quote a part of it, in haec verba, viz:

In the General Assembly of the Commonwealth of Pennsylvania. * * * The people of the United States, by the adoption of the federal Constitution, established the general government, for specified purposes, reserving to themselves, respectively, the rights and authorities not delegated in that instrument. To the compact thereby created, each State acceded in its character as a State, and is a party, the United States forming as to it, the other party. The act of union thus entered into, being to all intents and purposes a treaty between sovereign States, the general government, by this treaty, was not constituted the exclusive or final judge of the powers it was to exercise; for if it were to so judge, then its judgment, and not the Constitution, would be the measure of its authority. Should the general government, in any of its departments, violate the provisions of the Constitution; it rests with the States and with the people to apply suitable remedies.

“With these impressions, the Legislature of Pennsylvania, ever solicitous to secure an administration of the federal and State governments comformably to the true spirit of their respective constitutions, feel it their duty to express their sentiments, upon an important subject now before Congress—viz.: the continuance or establishment of a bank. From a careful review of the powers vested in the general government, they have the most positive conviction that the authority to grant charters of incorporation, within the jurisdiction of any State, without the consent thereof, is not recognized in that instrument, either expressively or by any warrantable implication. Therefore, resolved, by the said House of Representatives, of the said Commonwealth of Pennsylvania, in general assembly met, that the senators’ of this State in the Senate of the United States, be and they are hereby, instructed, and the representatives of this State, in the House of Representatives of the United States, be and they are hereby, requested, to use every exertion in their power, to prevent the charter of the Bank of the United States from being renewed, or any other bank from being chartered by Congress, designed to have operation within the jurisdiction of any State, without first having obtained the consent of the Legislature of such State.”—”Passed both houses, the 11th January, 1811.”

I have no knowledge, Mr. Editor, of what may have passed in other States on this all important subject. It gives me, however, great pleasure to quote these high acts of the judicial and legislative bodies, of the respectable State of Pennsylvania. That State, great in its population, in its resources, and its devotion to the cause of republicanism, ought to be heard, and its principles and its doctrines accord entirely, with those of the fathers of the Constitution.

Of these two judgments of the Supreme Court of the respectable States of Pennsylvania and Virginia, I may truly say, that they passed on great deliberation, and unanimously. I am justified in making this last declaration, by the example of the Supreme Court. For reasons which may easily be conjectured, they have vaunted that the opinion now in question was rendered unanimously in that court. We hear it also said from another quarter, and no doubt with the same view, that some of the judges who gave it, had before been accounted republicans. If so, their works would lead me to believe that they have changed their politics, in thus changing, they have undergone the common fate attending the possession of power. Few men come out from high places, as pure as they went in. It is only the elect who can pass, unhurt, through a fiery furnace. We read of a fabled den, in ancient times: from which were seen no returning footsteps—”nulla vestigia retrorsum.” All the victims were slain as soon as they entered into it. Our judges have met a happier fate; but if the information now alluded to, be correct, it would seem that their politics have at least been changed.

How, after all this, Mr. Editor, in this contest between the head and one of the members of our confederacy, in this vital contest for power, between them, can the Supreme Court assert its exclusive right to determine the controversy. It is not denied but that the Judiciary of this country is in the daily habit of far outgoing that of any other. It often puts its veto upon the acts of the immediate representatives of the people. It, in fact assumes legislative powers, by repealing laws which the Legislature have enacted. This has been acquiesced in, and may be right, but the present claim on the part of the Judiciary, is, to give unlimited powers to a government only clothed, by the people, with those which are limited. It claims the right, in effect, to change the government: to convert a federal into a consolidated government. The Supreme Court ii also pleased to say, that this important right and duty has been devolved upon it by the Constitution.

If there be a clause to that effect in the Constitution, I wish the Supreme Court had placed their finger upon it. I should be glad to see it set out haec verba. * * * When a right is claimed by one of the contracting parties to pass finally upon the rights or powers of another, we ought at least to expect to see an express provision for it. That necessity is increased, when the right is claimed for a deputy or department of such contracting party. The Supreme Court is but a department of the general government. A department is not competent to do that to which the whole government is inadequate. The general government cannot decide this controversy, and much less can one of its departments. They cannot do it, unless we tread under foot the principle which forbids a party to decide his own cause.

While we are told by Vattell, in a passage formerly quoted, it is often proper for the head and members of a confederacy to establish an umpire or arbitrator of their deputies, he also tells us that that head is competent to decide the troubles which exist between the several members. The head has not the jurisdiction in the first case, because it is interested; and has it in the second because it is not. The head of the government is entirely disinterested, in relation to the disputes of its members. Our Constitution has gone by this principle, in both its aspects. It has given to the Supreme Court, in express terms, a right to decide controversies between two or more States: it has not given to it a jurisdiction over its own controversies, with a State or States. It could not give it, without violating a great principle; and we certainly cannot supply by implication, that which the convention dared not to express. In deriving such a power the least that should satisfy us would be an express provision in the Constitution. If it be said that this power is carried, under the general words of extending the jurisdiction of the Supreme Court to “all cases arising under the Constitution;” the answer is, that these words may be otherwise abundantly satisfied: they do not oblige us to violate the great principle before mentioned. As to this case, the Constitution is a law sub graviori lege. That paramount law is the great principle I have just mentioned. A constitution giving by these words, a jurisdiction in the case before us, would equally subject the Emperor of Russia to the jurisdiction of the Supreme Court! There is another principle which is also conclusive. The rank of this controversy between the head and one of the members of the confederacy, may be said to be superior to those depending between two of the members: and the lawyers well know, that a specification beginning with a person of inferior grade, excludes those of a superior. If in the face of these great principles, this power was intended to be given would it not have been expressly provided for in the Constitution?

I have thus, Mr. Editor, stated to you Some of the objections I have to the opinion of the Supreme Court. There are other points in that opinion, equally objectionable. I leave them to abler hands. The objections I have stated are of overruling influence if they be well founded. I have shown, or endeavored to show, that the Supreme Court has erroneously decided the actual question depending before it: that it has gone far beyond that question, and in an extra-judicial manner, established an abstract doctrine: that they have established it in terms so loose and general, as to give Congress an unbounded authority, and enable them to shake off the limits imposed on them by the Constitution: I have also endeavored to show that the Supreme Court has, without authority, and in the teeth of great principles, created itself the exclusive judge in this controversy. I have shown that these measures may work an entire change in the Constitution, and destroy entirely the State authorities. In the prosecution of this plan, it has been deemed expedient to put the State legislatures hors du combat. They might serve, at least, to concentrate public opinion, and arrest, as they have heretofore done, the progress of federal usurpation. The people of this vast country when their State legislatures are put aside, will be so sparse and diluted, that they cannot make any effectual head against an invasion of their rights. The triumph over our liberties will be consequently easy and complete. Nothing can arrest this calamity, but a conviction of the danger being brought home to the minds of the people. That people, who, in this country have, heretofore, put down the enforcement of the sedition law, which, in the eyes of the judges, was entirely unexceptionable!: that people, who, in England, reversed the infamous judgment in the case of ship money, and the no less infamous doctrines of Mansfield, on the law of libels, can reverse the judgment now in question. To that authority I appeal. I invoke no revolutionary or insurrectionary measures. I only claim that the people should understand this question. The force of public opinion will calmly rectify this evil. I repeat, however, that I have no sanguine presages of success. Such is the torpor of the public mind, and such the temper of the present times, that we can count on nothing with certainty. It would require more than the pen of Junius, and all the patriotism of Hampden, to rouse our people from the fatal coma which has fallen upon them.

Hampden.

June 22, 1819.

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