Rights of the States and of the People

US Constitution

This is Part I of four letters that originally appeared in the Richmond Enquirer in 1819 under the nom de plume Hampden. They could have been written yesterday.

To the Editor of the Enquirer:

By means of a letter to you, sir, I beg leave to address my fellow citizens. I address them on a momentous subject. I address them with diffidence, and with respect; with the respect which is due the most favored, if not the most respectable section of the human race: and with the diffidence which I ought to feel, when I compare the smallness of my means with the greatness of my undertaking. I address my fellow citizens without any distinction of parties. Although some of them will, doubtless, lend a more willing ear than others, to the important truths I shall endeavor to articulate, none can hear them with indifference. None of them can be prepared to give a carte blanche to our federal rulers, and to obliterate the State governments, forever, from our political system.

It has been the happiness of the American people to be connected together in a confederate republic; to be united by a system, which extends the sphere of popular government, and reconciles the advantages of monarchy with those of a republic; a system which combines all the internal advantages of the latter, with all the force of the former. It has been our happiness to believe, that in the partition of powers between the general and State governments, the former possessed only such as were expressly granted, or passed therewith as necessary incidents, while all the residuary powers were reserved by the latter. It was deemed by the enlightened founders of the Constitution, as essential to the internal happiness and welfare of their constituents, to reserve some powers to the State governments; as to their external safety, to grant others to the government of the union. This, it is believed, was done by the Constitution, in its original shape; but such were the natural fears and jealousies of our citizens, in relation to this all-important subject, that it was deemed necessary to quiet those fears by the tenth amendment to the Constitution. It is not easy to devise stronger terms to effect that object than those used in that amendment.

Such, however, is the proneness of all men to extend and abuse their power—to “feel power and forget right”—that even this article has afforded us no security. That legislative power which is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex, has blinked even the strong words of this amendment. That judicial power, which, according to Montesquieu is, “in some measure, next to nothing;” and whose province this great writer limits to “punishing criminals and determining the disputes which arise between individuals”; that judiciary which, in Rome, according to the same author, was not entrusted to decide questions which concerned “the interests of the State, in the relation which it bears to its citizens”; and which, in England, has only invaded the Constitution in the worst of times, and then, always, on the side of arbitrary power, has also deemed its interference necessary, in our country. It will readily be perceived that I allude to the decision of the Supreme Court of the United States, in the case of M’Culloh against the State of Maryland.

The warfare carried on by the legislature of the Union, against the rights of “the States” and of “the people” has been with various success and always by detachment. They have not dared to break down the barriers of the Constitution by a general act declaratory of their power. That measure was too bold for these ephemeral duties of the people. The people hold them in check by a short rein, and would consign them to merited infamy, at the next election……They have adopted a safer course. Crescit Eundo is their maxim; and they have succeeded in seeing the Constitution expounded, not by what it actually contains, but by the abuses committed under it. A new mode of amending the Constitution has been added to the ample ones provided in that instrument, and the strongest checks established in it have been made to yield to the force of precedents! The time will soon arrive, if it is not already at hand, when the Constitution may be expounded without ever looking into it!—by merely reading the acts of a renegade Congress, or adopting the outrageous doctrines of Pickering, Lloyd or Sheffey!

The warfare waged by the judicial body has been of a bolder tone and character. It was not enough for them to sanction, in former times, the detestable doctrines of Pickering & Co., as aforesaid: it was not enough for them to annihilate the freedom of the press, by incarcerating all those who dare, with a manly freedom, to canvass the conduct of their public agents; it was not enough for the predecessors of the present judges to preach political sermons from the bench of justice and bolster up the most unconstitutional measures of the most abandoned of our rulers; it did not suffice to do the business in detail, and ratify, one by one, the legislative infractions of the Constitution. That process would have been too slow, and perhaps too troublesome. It was possible, also, that some Hampden might make a stand against some ship-money measure of the government, and although he would lose his cause with the court, might ultimately gain it with the people. They resolved, therefore, to put down all discussions of the kind, in future, by a judicial coup de main; to give a general letter of attorney to the future legislator’s of the Union; and to tread under foot all those parts and articles of the Constitution which had been, heretofore, deemed to set limits to the power of the federal legislature. That man must be a deplorable idiot who does not see that there is no earthly difference between an unlimited grant of power and a grant limited in its terms, but accompanied with unlimited means of carrying it into execution.

The Supreme Court of the United States have not only granted this general power of attorney to Congress, but they have gone out of the record to do it, in the case in question. It was only necessary, in that case, to decide whether or not the bank law was”necessary and proper,” within the meaning of the Constitution, for carrying into effect some of the granted powers; but the court have, in effect, expunged those words from the Constitution. There is no essential difference between expunging words from an instrument, by erasure, and reading them in a sense entirely arbitrary with the reader, and which they do not naturally bear. Great as is the confidence of the nation in all its tribunals, they are not at liberty to change the meaning of our language. I might, therefore, justly contend that this opinion of the court, in so far as it outgoes the actual case depending before it, and so far as it established a general and abstract doctrine, was entirely extrajudicial and without authority. I shall not, however, press this point, is it is entirely merged in another, which I believe will be found conclusive—namely, that that court had no power to adjudicate away the reserved rights of a sovereign member of the confederacy, and vest them in the general government.

It results from these remarks, Mr. Editor, that my opinion is, that the Supreme Court had no jurisdiction justifying the judgment which it gave, and that it decided the question wrongly. The power of the Supreme Court is indeed great, but it does not extend to everything; it is not great enough to change the Constitution. . . . These points I shall endeavor to maintain in one or more subsequent numbers. I shall also briefly touch upon the bank law of the United States. That law is neither justified by the Constitution, nor ratified by any acquiescence.

Had this opinion of the Supreme Court, however, not been pronounced, I should not have deemed it necessary to address the public on the subject. I should not have been moved by any particular measure of aggression. I know full well that however guarded our Constitution may be, we must submit to particular infractions of it. I know that our forefathers, of glorious and revolutionary memory, submitted to many particular acts of oppression, inflicted upon them by the British parliament. I know that “all experience hath shown that mankind are more disposed to suffer while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed”; and I know that it was only the general declaration by the British parliament of their right “to legislate for us in all cases whatsoever,” that combined the American people, as one man, against the oppressions of the British tyrant.

Such a declaration is now at hand. It exists, in the opinion of the Supreme Court. If the limits imposed on the general government, by the Constitution, are stricken off, they have, literally, the power to legislate for us “in all cases whatsoever”; and then we may bid a last adieu to the State governments.

In discussing these momentous questions, I shall not hesitate to speak with the spirit of a freeman. I shall not be overawed by the parasites of a government gigantic in itself, and inflated with recent victories. I love the honor, and, if you please, the glory of my country, but I love its liberty better. Truth and liberty are dearer to me than Plato or Socrates. I speak only of the measures of our public functionaries, but of them I shall speak freely. I am not a political surgeon; but this I know, that a wound which threatens to be mortal must be probed to the bottom. The crisis is one which portends destruction to the liberties of the American people.

I address you, Mr. Editor, on this great subject with no sanguine presage of success. I must say to my fellow citizens that they are sunk in apathy, and that a torpor has fallen upon them. Instead of that noble and magnanimous spirit which achieved our independence, and has often preserved us since, we are sodden in the luxuries of banking. A money-loving, funding, stock-jobbing spirit has taken foothold among us. We are almost prepared to sell our liberties for a “mess of pottage.” If Mason or Henry could lift their patriot heads from the grave, while they mourned the complete fulfillment of their prophecies, they would almost exclaim, with Jugurtha, “Venal people! you will soon perish if you can find a purchaser.”

In examining this great subject, I shall only resort to authorities the most unquestionable. I shall chiefly test my doctrines by those of the enlightened advocates of the Constitution, at the time of its adoption. I shall also resort to a book, written, at least in part, by one of the highest-toned statesmen in America. That book is “The Federalist,” and the writer alluded to is Mr. Hamilton. The authors of that book have been eulogised by the Chief Justice, in his “Life of Washington,” for their talents and love of union; and by the Supreme Court, in the opinion before us. The court has even gone so far as to say that as to the opinions contained in that book, “no tribute can be paid to their worth, which exceeds their merit.” If I have any adversaries in this discussion, these advocates and this book are their witnesses, and I shall take leave to cross-examine them. That witness is the best for the defendant, who is produced on the part of the plaintiff: and he is most to be believed who is both lauded by the court and testifies against his interest or his prejudices. I shall also use, occasionally, the celebrated report of the legislature of Virginia, in the year 1799. It has often been called by an eloquent statesman his political Bible. For truth, perspicuity and moderation, it has never been surpassed. It is entirely federal. It was the Magna Charta on which the Republicans settled down, after the great struggle in the year 1799. Its principles have only been departed from since by turn-coats and apostates. The principles of this report equally consult the rights and happiness of the several States, and the safety and independence of the Union.

I shall commence, in the next number, some examination of the opinion of the Supreme Court. It is in every respect entitled to the chief notice. I have great reason to distrust myself in this undertaking. I am provided with a sling and a stone, but I fear the inspiration will be wanting. I consider that opinion as the “Alpha and Omega, the beginning and the end, the first and the last, of federal usurpations.”

Hampden.

From the Richmond Enquirer, June 11, 1819.

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