The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832
Of the Independence of the States and the Sovereignty of the Union considered together, and how far the latter is consistent with the former.
To form just and adequate ideas on the subject of the present chapter, it may not be amiss to consider shortly, what would be the condition of the several states, if the Union among them were peaceably dissolved, and, with that single exception, every thing else were left in the same situation that it now is. The people of each state, it is apparent, would then find themselves in possession of a distinct territory, with a separate regularly organized government, fully authorized by the people for the regulation of its concerns; and though perhaps not invested with any power to wage a foreign or offensive war; yet having full authority to resist invasions from without, and to suppress tumults and insurrections within; and generally to provide for the public peace and the domestic tranquility of its citizens, and the support and maintenance of the government. Under such circumstances as these, and acknowledging no earthly superior in any other government or tribunal whatever, it is impossible not to perceive, that each state would be completely sovereign and independent. It was in this condition, that those states of the American Union claimed to be, which agreed to the articles of confederation; and, with the exception of that compact, this was the situation those states were in, which first agreed to adopt the federal constitution.
It is thus apparent, that the constitution of the United States is the only restraint, which the several states have imposed upon their own independence. It is also the only bond that unites them under one government. A proper regard for their own interests, it is true, would tend to keep them at peace with each other, and might also induce them to form alliances for mutual protection against external aggression. But such consequences would greatly fall short of the advantages, to be derived from a union, under a constitution like that of the United States. For, the general government, being invested by it with all the powers of peace and war, and with the control also of the whole resources of all the states, without being under any necessity of consulting the local authorities, in these respects has all the consistency and strength of a great empire, with no other restraint upon the exercise of the vast powers thus bestowed in the constitution, than requiring, that they shall be employed for the general good of all the states, and not to advance any partial, local, or sectional interests.
The independence of the several states, is therefore confined to the relation existing among them, as individual states. But, no state is independent of the union, that is, of the states, taken collectively as forming one nation under the federal constitution. Their absolute independence is limited, just so far as they have seen fit to limit it themselves, in that national compact; but no further.
What then is the construction, that ought to be given to this compact, in this respect? Two principles of construction are laid down in express terms, in the amendments to the constitution, and which consequently have become part of the constitution on itself.
1. ‘That the enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’
2. ‘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.’
It is believed, that the former of these principles is not wholly free from obscurity. The intent of it, however, probably was, that the enumeration of certain rights expressly retained by the people, shall not be construed in denial of others belonging to them, not elsewhere given up in the constitution, and not contained in such enumeration.
Among the powers most characteristic of sovereignty, given to congress in the constitution, are,-
1. The power of laying taxes, duties, imposts and excises, for the purpose of paying the national debts, and providing for the common defence and general welfare, he.
2. The power to regulate commerce with foreign nations, and among the several states, &c.
3. The power to establish a rule of naturalization. By the present rule established by the exercise of this power, an alien may become a citizen of the United States, without being a citizen of any of the states. For, though by naturalization he becomes entitled to the privileges of a citizen of the United States, and consequently to the privileges of a citizen of that state to which he belongs, or wherein he may see fit to reside; yet, if the union should be dissolved, he would become again a mere alien, unless the state, in which he abode, saw fit to adopt him.
4. The powers to coin money; to establish post roads; to raise and support armies; to provide a navy, &c.
The restrictions upon the authority of congress, are merely such restraints and limitations, as the people of the United States have seen fit to impose on their government, and are not the exceptions merely of powers, reserved to the state governments.
The restriction upon the authority of the states, relate to the exercise of such sovereign powers, as the citizens of the states, if they had thought expedient, might have entrusted to their respective state governments; but, having confided some of these powers to congress, and having expressly restricted congress from the exercise of the rest, there would be an apparent inconsistency and impropriety, in permitting the states to exercise them.
No state, therefore, can enter into any treaty, alliance or confederation, whatever. This applies as well to treaties, alliances and confederacies, &c. between two or more states, as to treaties, alliances, &c. between one or more of the states, and a foreign nation. But, though certain powers are denied or forbidden to the state governments, in the federal constitution, which the people of the respective states might otherwise have delegated to their respective state governments; it by no means follows, that other powers not mentioned among those which are thus forbidden or denied, may, of course, be lawfully exercised by the states. For, this must depend upon the language of the state constitutions themselves, respectively.
The general superintending power, intended to be bestowed on congress, by the federal constitution, is also apparent from the provision, that the United States shall guarantee to
every state in the union, a republican form of government. This expression admits of considerable latitude of interpretation. It is probable, however, that any form of government, where the rulers were not hereditary, and depended for their appointment upon the choice of the people, would be considered a republic, within the true intent of the constitution. If the people of any state, therefore, saw fit to adopt a state constitution, in which the governor and senate were chosen for life, or during good behavior, and to vest in them the discretionary exercise of all the powers, which the state governments may now properly exercise, under the federal constitution, the government would still be a republic, within the meaning of the constitution; and, if those state rulers did not abuse their powers, in an attempt to overstep the limits prescribed by it, the general government would have no right to interfere.
The supreme political power of the government of the United States, is further apparent, from the clause in the constitution, in which the people of each of the states agree, ‘that the constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.’ Perhaps there is not a clause in the whole federal constitution, the strict observance or enforcement of which, is more essential to the dignity of the general government, than the one now under consideration. For, if the judges of the state court were not bound to conform to the constitution of the United States, in their decisions, nor to obey the laws of the union, then one of the principal objects in view in the formation of the union, would not be obtained; and in fact there would be no union. But, as laws, which’ are enacted by congress under pretense of a power, which in fact is not granted by the federal constitution, are not binding, it may be asked, how shall it be determined, whether such power is granted or not, when a case, involving the rights of individuals under a law of the United States, comes before one of the state courts, and an objection is made to the constitutionality of the law? The answer which naturally suggests itself, is, that congress should generally be presumed to have acted within their constitutional authority, unless the contrary is clearly demonstrated. The state judge ought therefore to decide accordingly. But if he is convinced, that the law is enacted without such constitutional authority, he ought to decide so. If any authority is given at all to a state judge to decide in any such case, he must have authority to decide correctly, that is, according to the impartial dictates of his own judgment. A judge has no right in conscience, to decide contrary to what he believes to be the justice of the case, on the supposition, that the case will be carried to the constitutional tribunal in the last resort; for this may not take place. Any party, however, aggrieved at the decision of a state court in any such case, may always have a hearing before the supreme court of the United States; and when the question has been once settled there, the decision will furnish a rule for the state courts in all such cases from that time, by which they will be bound to govern themselves, whatever their own private opinions may be.
In order to strengthen the arm of the general government, the federal constitution has wisely given authority to congress to pass all laws, which may be necessary for the exercise of the powers, granted in the constitution. This clause is one of the greatest importance, because, though this auxiliary power might have been considered, as necessarily implied from the grant of the principal powers themselves; yet the omission would probably have given rise to innumerable objections and cavils. Under this clause, congress has a sufficient authority to apply an adequate remedy for every difficulty, that may arise in the execution of the powers granted in the federal constitution, and consequently, in putting in force all laws made by virtue of those powers. In pursuance of this general authority, given in the sweeping clause of the federal constitution, congress has taken care, by the creation of proper officers, with prescribed duties and ample powers, wholly distinct from the officers of the several states, to render the execution of the laws of the United States entirely independent of any act of any particular states, or of any of their officers, and without the necessity of requesting the consent or co-operation of the executive, legislative or judicial departments of the states, where such laws of congress are to be put in force. But, if it had been necessary, in any such case, to have the previous consent of the states, the execution of the law might have been greatly delayed, perhaps wholly frustrated; or, if the officers of the states were employed in the execution of the laws of the United States, as there would be no obligation upon them to perform such services, unless perhaps the several states enacted laws for the purpose of rendering it so, it would remain optional with such officers, whether to execute them or not. For, it has been found by experience, that the idol popularity, has sometimes induced even an officer of the United States, to resign his office, rather than offend the citizens of the state where he resided, by discharging his official duties. But, in general, the officers of the United States, not depending upon the states either for their appointments or for their continuance in office, supposing them to have a proper regard for their official oaths, can have nothing to hinder or delay them in the discharge of their duties. For, on the extreme supposition, that a law of the United States is unconstitutional, as well as impolitic and injurious to the interests of a particular state; still, unless it is decided to be unconstitutional by the supreme court of the United States, the officers of the general government are bound to enforce it. Nor is it clear, upon what ground, except a regard for the dictates of prudence, forbearance and temporary expediency, they would be bound to regard a decision of the state courts to the contrary, if they should assume to themselves a power to determine upon the subject. Where the courts of a state express their opinion of the construction, which ought to be given to a law of the United States, and ground their decision in the cause before them, upon the unconstitutionality of the law, the person aggrieved by the decision, if a private individual, may have his remedy at the regular constitutional tribunal, but will have no pretext whatever to resist the decision of the state court. But, on the extreme supposition, that a law of the United States requires one of the officers of the national government to perform a certain duty, and one of the state courts decides the law to be unconstitutional, is or is not the officer of the United Slates, however high and responsible his situation, bound at his peril to await the decision of the supreme court of the United States on the subject, before he undertakes to enforce the law contrary to the decision of the state court? Whatever the prevailing opinion may be on this subject, as to the legal duties, there can be none as to the moral obligation. Certainly, the utmost delicacy, moderation and forbearance ought to be used in all cases, where by possibility there may be a clashing of jurisdictions. The aim of each party should be, not so much to assert his strict right in the first instance, as, by mild and prudent measures, to put his adversary in the wrong, in the hope that the supreme court of the United States, whenever the case is regularly brought before them, will award ample redress to the party injured. And here, it is worthy of remark, that the principal cases, where there is reason to apprehend that public disturbances may arise between the general government and the states respectively, must result from a disagreement in opinion between the courts of the United States and those of the states. This is a singular proof of the prudence and foresight of the framers of the constitution. For, in general, such is the love of regularity and order, and the prudence and moderation of those persons who preside over the tribunals of justice, a fact -which has been verified by experience both with regard to those of the United States and those of the several states in the union, that the framers of the federal constitution were well warranted in supposing, that they had avoided, as far as possible, every occasion, which might give rise to internal disorders and civil commotions, on account of the undefined and undefinable powers and rights of the general and state governments respectively, when they had taken care, that no such unfortunate circumstances could ever happen, where one party or the other would not be manifestly and grossly in the wrong; the case of conflicting jurisdictions between the courts of the United States, and those of the state courts, being a solitary exception. And, it is believed, until some late unfortunate occurrences, to which it seems unnecessary to make further allusion, most reflecting persons would have come to the conclusion, that if there were no other sources of public troubles and dissensions between the United States and the several states, than such as arise from the collisions of their respective judiciaries, and the execution of their conflicting sentences and decrees, the country might enjoy a state of uninterrupted tranquility and repose forever.
But, if the legislature or the executive of a state, having come to the conclusion that a law of the United States was unconstitutional, notwithstanding a decision of the supreme court to the contrary, should array an armed force to resist the execution of the law, such conduct would undoubtedly be treasonable. See 2 Dall. 346. 4 Cranch, 75. 1 Paine, 265.
So, if they should attempt by the use of similar violent means, to enforce a law of the state, which had been decided to be unconstitutional, by the same court:
And, for the same reason, if they should resist in the same manner, the execution of a decree of the supreme court of the United States.
Neither would it be a crime of small magnitude with regard to the state itself, if the governor or legislature of a state, should venture to adopt any such rash measures in opposition to the general government. The state constitutions confer on the state governments no power of opposing the measures of the general government, under any circumstances. If any such power is ever exercised by the state authorities, it will be an act of dangerous usurpation, for which they will be answerable to their constituents, perhaps on an impeachment, perhaps on an indictment for a treasonable conspiracy. For, whence can the governor or legislature of a state derive authority or jurisdiction, to decide whether a law of congress, or a decision of the supreme court of the United States, is unconstitutional? If the citizens of the states had ever intended to bestow such power on the state rulers, the adoption of the constitution of the United States by those citizens, would have abolished such intention. For, a clause in it declares that it shall be the supreme law of the land; but, this is altogether inconsistent with a power in the governor or the legislature of any state, to oppose any measures, adopted by the general government by virtue of powers delegated in it. The same constitution has also provided a supreme tribunal for the decision of constitutional questions; consequently, the state authorities have no jurisdiction of any such question. On the extreme supposition, that the supreme court should usurp jurisdiction of questions not submitted to them by the constitution, the right to remonstrate belongs to the states, that is, to the citizens of the respective states; and not to the state rulers; for the plain reason already suggested, that the citizens have not delegated this power to the state rulers, either expressly or by necessary implication, in their state constitutions.
The constitution of the United States is the solemn compact of all the states, adopted from motives of the greatest expediency, or rather necessity. But, of what utility can it be, if the execution of laws or decisions made under its authority, may be resisted, whenever the governor or legislature of a particular state, under whatever pretense, believe or affect to believe such laws or decisions to be unconstitutional? Such an act of opposition may at first sight, appear to be aimed at the administration of the general government for the time being; for the government being of the nature of a company or association, is a mere abstraction, and consequently impassible; but the wrong is evidently offered to the other states, that compose the federal union. For, it is they, with whom the compact was formed; and, it is they, who are injured as well as contemned, when the compact is violated.
It might be supposed, at first view, that in ordinary cases, there would be but little reason to apprehend, that the rulers or government of any state, would ever array themselves in opposition to any measures of the general government. Because, if a state legislature should enact a law for any such purpose, it would be merely void, and the citizens of the state itself would not be bound by it, and would be protected by the constitutional tribunals of the union, in their disregard or disobedience of such law. Besides, if they obeyed such law, any further than they were actually compelled to do so by the state rulers, it would not be sufficient before the national tribunals, to excuse an inconsiderable assault and battery, and far less to afford a justification for murder, treason, insurrection or rebellion. The same rule would apply to the courts of the state. For, if they had not adopted the same views or opinions as the governor and legislature of the state, they also, would decide that such opposition to the general government was illegal, and that all laws of the state, he. enacted by the legislature for such purpose, were void ; and, in any such decision, they would be sustained by the supreme court of the United States, and ought lo be protected by the power of the union.
But, if the highest courts of a state should undertake to decide, that a decree of the supreme court of the United States was unconstitutional, and refuse to obey it, or suffer it to be obeyed, or to be enforced by the civil officers of the United States; and the governor and legislature of the state should raise an armed force to resist the power of the national government, and should make an actual opposition to it; this, it cannot be doubted, would be treason in all persons in the state, whether rulers or citizens, who voluntarily took an active part in it. But, it would not necessarily amount to a dissolution of the union, unless the citizens of the state sanctioned the violence of their rulers, with their express approbation, given in their primary assemblies called together for that purpose. It would amount to nothing more than a rebellion, and should be treated as such. The quiet and sober-minded citizens of such state should be protected against the violence of the insurgents, and the latter should be reduced, as soon as possible, to a state of civil subordination to the federal government.
But, according to the theory of the whole system of state governments, taken in connexion with the federal government, if the people of such state should sanction such measures of the state government in their primary assemblies, such state, in effect, would already have separated itself, violently and irregularly, from the federal union. The relations afterwards subsisting between that state and the other states in the union, which would not necessarily be dissolved by the secession of one or more particular states, would depend upon the moderation and forbearance of the administration for the time being. For, the federal government, without perhaps having a strict right to compel any state to continue its adherence, contrary to the express unanimous wish of all the citizens or legal voters of such state, would unquestionably have a right to claim of it a full satisfaction of all just demands, as well as an indemnity for all injury arising to the union, or to any other of the states, or to any citizen of the United States, though a citizen also of such seceding state, if he did not consent to such secession. The federal government, also, notwithstanding a state should see fit to withdraw itself in this irregular manner from the union, would have a perfect right to compel it to observe and comply with the terms and conditions of all treaties, regularly made by virtue of powers delegated to the federal government in the constitution of the United States. For, why take the pains to frame and adopt a constitution, if the parties did not expect to be bound by it? And how can the parties be bound by it, if each has a right to refuse compliance with it, at discretion? But, however this may be, if at the time of calling a state convention, for the purpose of ascertaining the wishes of the people of the state, on the subject of a secession from the union, there were a considerable number of voters, though a minority of the whole, given in favor of adhering to it it, would be a mere question of policy, for the other states to decide, whether such state should be permitted to withdraw from the union or not. For, the obligations of a national compact of general union, purporting to be formed as well for posterity, as for the generation of men then in existence, and which, therefore, it was intended, should last as long as the whole people of all the states should have an independent existence, are not to be assumed and cast off again, according to the caprice of an ignorant and misguided multitude, under the influence of selfish interests or turbulent and ungoverned passions. The excitement, which men of superficial but popular talents sometimes occasion among the less informed and more combustible class of citizens, by exaggerating public grievances, some of which from the imperfection of all human institutions, are unavoidable, and consequently cannot be prevented by the wisest and best organized administration, can furnish no rational ground for dissolving a compact of this nature. The federal constitution was formed after long deliberation by men of distinguished abilities, and, after a critical examination and thorough scrutiny by assemblies in each state, of men selected for their great knowledge, experience and political discernment, was recommended to the citizens of the several states. In consequence of this recommendation, the constitution of the United States was adopted by the people of the thirteen states, which first constituted the federal union, and who in their primary assemblies ratified it and bound themselves, and their posterity being citizens of some of the slates, to comply with and obey it. Whether any after generation of citizens of any single state, even though unanimous, have any absolute right of dissolving their connexion with the United States, is not satisfactorily made out in the affirmative. For, it has never been demonstrated, to the satisfaction of any but political smatterers without knowledge or principle, that every body of men have a right to abolish the lawful government of the territory under which they have been born and educated, whenever they fancy they can govern themselves better; at any rate, it is not yet settled, that the rest of the nation are under any obligation to submit to such an arrangement. But, if the citizens of such state are not unanimous; if there is a respectable minority among them, against secession; the federal government has an undoubted right to compel the state to submit to its authority. Such an exercise of power, it is not improbable, would eventually receive the approbation of the very persons, who under the influence of some popular speaker, may have raised the loudest shouts in favor of separation and disunion. For, the inconsiderate resolutions or actions of any body of men, acting under the transient excitement occasioned by the declamation of some improvisalori, who from practice has acquired a graceful and fluent manner of speaking on all subjects, without any other advantage than a very superficial view of their tendency and consequences, are certainly not to be compared with the deliberations of Jay, Madison, Hamilton, Pendleton, Governor Randolph, and other distinguished statesmen. When the excitement is over, therefore, the people will view with regret, perhaps with shame and disgust, any excesses or disorders, which they may have committed during their infatuation; or, if they have been arrested in their career of madness and folly, will feel grateful to those who have performed for them so kind an office.
To suppress any such internal commotion, however, it is hoped, that it will never become necessary, even under the most threatening appearances, to resort to any harsher measures than persuasion or remonstrance. If the majority of the citizens of a state should be in favor of adhesion, there would probably be but little occasion for the general government to interpose for the preservation of tranquility and order. And, if the majority were in favor of separation, the proximity of a small national force without the limits of the state, would be a sufficient protection for the minority, who adhered to the federal government, if they should be threatened with violence, and who should be cautioned against the use of any force but in repelling aggression. By this moderate course of measures, the temporary excitement would soon subside. When the fit of intoxication was over, which would soon be the case if not imprudently exasperated, intemperate resolves would give place to a spirit of prudence and moderation. A total change would take place in the public sentiment, and consequently in the state administration. As the people of the state resumed the exercise of their reason, they would supplant in office, folly and rashness, by good sense and a spirit of conciliation. If unfortunately there should be an attempt to array an armed force in opposition to the general government, it would probably be suppressed in a moment. The most turbulent and violent of the leaders, and consequently idolized by the credulity of the abused people, as an illustrious patriot and hero—who perhaps fancied himself a state Washington—being arrested, would see his partisans abandon him to his fate. Being then tried and convicted of treason, he would be surprised to find himself regarded by the multitude whom he had attempted to mislead, neither as a patriot, nor a renowned hero, not even as a martyr of liberty, but merely as an unsuccessful political incendiary; while the citizens of the state, having learned a useful lesson respecting the arts and fate of demagogues, and having put in office men of sound judgment and deliberate consideration, would be surprised to find that they can live in happiness and prosperity all their days, notwithstanding the fancied oppressions of the general government.
To return; from the preceding observations and reflections, it cannot be difficult to determine how far the United States constitute a single consolidated empire; and,in what respects, they are merely a confederacy of independent nations. And it is evident, that there is not the slightest inconsistency either theoretical or practical, in relation to the subject, if rightly considered. For, within the powers delegated to the legislative, judicial and executive departments of the general government, the United States form one grand consolidated empire, and within the prescribed limits of these delegated powers, no other difference can be discerned between this government, and the most absolute monarchy on earth, while, in the actual exercise of no greater powers than these, except in the single circumstance, that the monarchy restrains itself; but the general government is restrained by the federal constitution. So far therefore as the exercise of the powers delegated requires, the states cease to be independent, and consequently, sovereign and independent. The state governments however, it must be repeated, have nothing to do with this subject. It concerns merely the citizens of each state, taken collectively as forming a distinct tribe or nation; the general government, formed by the constitutional compact between all these states; and the citizens of all the states taken in their new relation to each other under this national compact, as fellow citizens of the American republic. It is true, that a citizen of each state has, in certain respects, the freedom of all the other states ; but should the union be dissolved, it will be found, that he derives this advantage from the federal constitution alone; and whether he is afterwards to be considered as an alien, or as a denizen of any other state, will depend upon the laws of that state alone.
That it was not intended by the federal constitution, to consolidate the states, any further, than is necessarily implied in the exercise of the powers delegated in it, is evident from the express provision of the constitution, that, no ‘ new state shall be formed by the junction of two or more states or parts of states, without the consent of the legislatures of the states concerned, as well as of the congress.’
Further, the states, in many respects, seem wholly independent of the union. The government of the United States cannot appropriate an acre of land belonging to any state, or assume exclusive jurisdiction over.it, without the assent Of grant of the state.
If an officer of the United States commits a crime against the laws of any state, he is amenable to the state court where the crime is committed, and the judgment of the state court will be final. If the officer should set up a defence under the laws and constitution of the United States, for the purpose of bringing the case before the supreme court of the United States, that court will examine no farther into the merits of the case, than to ascertain whether the laws or constitution of the United States are at all brought in question; and if not, the judgment of the state court will be permitted to take its course.
The slates are perfectly independent of each other, and their dependence on the general government is just so much as they voluntarily agreed to, in giving the government of the United States a supremacy in certain defined respects, by the adoption of the federal constitution. They are sovereign within their own territory, therefore, in all other cases; and if congress should violate this sovereignty by enacting unconstitutional laws, the state wronged may have the subject examined before the supreme court of the United States, the tribunal of last resort for constitutional questions, and if the law should be decided to be unconstitutional, it will lose its validity. But, it may be objected here, and the objection deserves consideration, If the supreme court is the tribunal of ultimate resort for all questions arising under the constitution of the United States, of what avail is the express limitation of the powers granted by it to the federal government? For, if congress should pass an unconstitutional law, and the supreme court should declare it to be constitutional, to what remedy can any state or individual injured by it resort? Certainly to none that is not paramount or collateral to the constitution itself, as, for instance, a convention of the states, in order to amend it by declaring its intention so clearly as to prevent the possibility of misinterpretation. This subject has been partially discussed ante p. 152. A few remarks, in further illustration of the view there submitted to the discerning reader, but in a different connexion, it is hoped will be excused here. Suppose congress to,enact an unconstitutional law, and the supreme court of the United States, making the same mistake with the -members of congress, should decide it to be constitutional, must a state submit to have its rights sacrificed? To answer this question correctly, it would seem necessary to establish a distinction analogous to that suggested in the place just referred to, to wit: that, as the constitution is a compact of the several states in the federal union, conferring certain powers on the federal government, and reserving others to the states; where laws are made, the subject matter of which is within the powers granted to the general government, the supreme court is the proper tribunal to decide whether they are constitutional or not. But, if the subject matter of the law, is not within the powers delegated to the general government, no state can justly be bound by such law, even on the absurd supposition, that the supreme court should decide it to be constitutional. Here it may be objected again, if this court has no conclusive jurisdiction, except where the subject matter of the law is within the powers delegated to congress, it follows, that this court will have no authority to decide a law to be constitutional, except in cases where there is no need of any such decision, viz, where the law comes within the express words of the constitution, made use of in defining the powers of congress. But, the answer is, that the subject matter of a law may be clearly within the powers granted to the general government, and yet the law may be unconstitutional. In any such case the court will have jurisdiction to decide; and though they should decide wrong, the decision will be binding on the states. To illustrate: The power of taxation is delegated to congress; yet, if congress should impose an unequal tax, the law would be unconstitutional and consequently void; but, as the subject matter of the law is within the power delegated to congress, the supreme court has a power to decide finally in relation to it. On the other hand, as the constitution confers no power on the general government to interfere in the municipal concerns or internal organization of a state, if congress should enact a law to control either in any respect, it would seem, that it would be void, and though the supreme court should decide it to be constitutional, the decision would not bind the states, because the subject matter of any such law, does not come within the powers delegated to the general government. In cases like these, it can hardly be supposed that the several states, in the formation of the federal constitution, intended entirely to resign to the supreme court, the right not merely of construing that compact, for this is not doubted, but of extending it by construction to matters not contemplated by it.
How far these remarks may apply by way of analogy to the case of enforcing the decision of an arbitrator, appointed by the United States and a foreign government, in relation to disputed boundaries between the foreign government and one of the states; and how far this point ought to depend upon the inquiry, whether the state whose territory is concerned, had previously consented to such arbitration or not; or how far these remarks may be considered applicable to the case of a state, which has forcibly taken possession of a territory, which, agreeably to a decision of the supreme court, is protected by treaties made with the United States, is submitted to the discerning reader.
Let it be supposed, further, that congress should require the justices of the peace holding commissions under the several states, to perform certain acts when requested, under a certain penalty, there can be no doubt, that though such law might be a sufficient authority to the justice to perform the act, so far as the United States is concerned, yet it would be wholly void as to the penalty ; because the subject matter of the law, so far as requiring a:state officer to perform any act under a penalty, does not fall within any provision of the federal constitution. It is true, the state officer may lawfully do the act for the sake of the fee, which he may be entitled to claim for it under the act of congress; but in any other respect his services will be merely gratuitous. Who then, it may be asked, is to decide whether a certain power is granted to congress in the federal constitution or not? It seems, that the supreme court has conclusive and unquestionable jurisdiction to decide, that a certain power is not granted; that the court has also conclusive jurisdiction to decide that a certain power is incidental, that is to say, absolutely necessary to the exercise of some other power expressly granted in the constitution, and consequently that such incidental power is also granted. But, unless they determine such power, not being an express one, to be thus incidental, they cannot bind the state by a decision, that the law made by virtue of it, is constitutional. So, the supreme court cannot bind the states by a decision, that a certain power is incident to a certain other power, where such supposed incident power is expressly prohibited in the constitution. But, if the constitution does not expressly prohibit the exercise of the power, decided by the court to be incidental, the decision of the court will conclude the states, even on the supposition that it is erroneous in fact. Because, where the supreme court has jurisdiction at all, as no other tribunal is provided for the correction of errors, its decision must be taken for as near an approximation to absolute right, as the fallibility of human nature permits; and consequently should be submitted to by the states, who have so far constituted that court their final arbitrator.
The express words of the constitution of the United States are, that “the constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made &c. It is plain then, that it is only those laws which are made in pursuance of the constitution, that will bind the state courts, even although sustained by a decision of the supreme court, unless that court has constitutionally a jurisdiction over the subject matter. In the case however of the most manifest usurpation of power on the part of congress, it would be highly unjust as well as inexpedient, for any state to array itself against the United States. For, an unconstitutional act can never with propriety be ascribed to the people of the union, who have expressly refused to congress the power to pass any unconstitutional law. Until the people have received notice of it, and have had a full opportunity of learning the true state of the case, and of electing another set of public officers, any such unconstitutional act should be ascribed to the general administration only. Till that time, any state which considers itself aggrieved, will best consult its interests, by restricting the exercise of its powers to endeavors to enlighten the public mind, and, in this way, induce them to elect wiser legislators.
Continued in CHAPTER VI. Of the rights reserved to the people of the United States; not being granted either to the general government, or to the state governments.See the other parts of this series: RIGHTS OF AMERICAN CITIZENS: General Rights; Division One RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments RIGHTS OF AMERICAN CITIZENS: The Independence of the States RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers RIGHTS OF AMERICAN CITIZENS: The Rights of Juries RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights