Front Page Titles (by Subject) SECTION 9.: THE BANK DECISION.—SUPREMACY. - Construction Construed and Constitutions Vindicated
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SECTION 9.: THE BANK DECISION.—SUPREMACY. - John Taylor, Construction Construed and Constitutions Vindicated 
Construction Construed and Constitutions Vindicated (Richmond: Shepherd and Pollard, 1820).
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THE BANK DECISION.—SUPREMACY.
“The people have said, “This constitution and the laws of the United States made in pursuance thereof, shall be the supreme law of the land.” “It is a question of supremacy.” “It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their influence.”
“It is a question of supremacy.” This expression, being unequivocal, had it remained unmodified, would have submitted to the publick consideration the plain question; whether the constitution of the union had, or had not, invested the federal government with a supreme power over the state governments. National questions ought to be candidly and fairly stated, to obtain a genuine national opinion. Out of complaisance to national opinion it was conceded by the court, that both the federal and state governments were sovereign within their respective spheres, to obtain as an attribute of sovereignty, a mutual right of creating corporations, and conciliate the usurpation practised by both. But, after allowing to both this attribute of sovereignty, a variety of equivocations are resorted to, for inhibiting to the states its other attributes, and assigning their exclusive enjoyment to the federal government. The means, the necessities, and the conveniences of the federal government as attributes of sovereignty are dilated, and those of the state governments consigned to oblivion. The federal government is acknowledged to be limited; but then it is said, that there is no phrase in the constitution which excludes incidental or implied powers, without admitting, that no enlargement of power can be inferred from this assertion in favour of the federal sovereignty, in which the state sovereignties would not participate. It is conceded, that the power of internal taxation is not abridged with respect to the states, by the grant of a similar power to the government of the union, and that it is to be exercised concurrently by the two governments; but the concession is retracted, by inferring from the constitutional abridgment in the subjects of imports and exports, a right in the federal government still farther to abridge the concurrent right of the states to an unspecified extent. It is said that the power of the states is subordinate to, and may be controuled by the constitution of the United States; but then it is inferred, that it is also subordinate to and may be controuled by the federal government. But, as this alternation between concession and retraction was liable to formidable objections, it is finally abandoned, or shielded against confutation, by the assertion “that it is a question of supremacy, and that it is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments, as to exempt its own operations from their influence.” The sweeping power asserted in the conclusion of this extract, is obviously distinct from a power of removing obstacles within its own sphere, previously asserted; and is another instance, in which unlimited power is attempted to be inferred from a power acknowledged to be limited. Thus the wisdom of concession and the ingenuity of retraction are so constantly blended, as finally to invest a government acknowledged to be limited, with an unlimited power over the very restrictions imposed upon itself; and also over the state governments, acknowledged also to be its cosovereigns. To fortify this mode of reasoning, it became even necessary to find a higher power than sovereignty, in order to controul the admitted sovereignty of spheres; and though hitherto thought not to exist, it is supposed to be found in the words “paramount and supreme” so sublimated, as to reduce the sovereignty both of the state spheres and of the people to mere glow worms.
The declaration of independence declares the colonies to be free and independent states; the constitutions of many states assert the sovereignty of the people; and sovereignty has hitherto been considered as the highest political degree. In that sense it has been claimed, held and exercised by the people of every state in the union from the revolution to this day. The attempt made by the court (before considered) to transplant sovereignty from the people of each state, by whom it has been and may be exercised, to the people of the United States, by whom it never has been nor can be exercised, under our present system of government, might fail of success; and therefore a new mode of destroying the sovereignty of the people is resorted to. Its jealousy is first appeased by the acknowledgment of spherical sovereignties, and then its degradation is finished by subjecting these sovereignties to supremacy. If the ground is a good one, all the states of the union took bad ground both in establishing and sustaining their independence. Supremacy was the literal claim of the British parliament over the colonies; and these colonies having only established sovereignties (an inferior political degree) have in fact tacitly acknowledged the British claim, which, being thus recognised, may be still prosecuted. It is also probable that the treaty failed to acknowledge our title to paramount and supreme power. If the treaty and the declaration of independence had not unfortunately committed this oversight, it would have narrowed the question considerably, by excluding from it a necessity for this entire section. Had these instruments declared the states to be sovereign, independent, paramount and supreme, then the language of the court’s admission must have been correspondently changed; and instead of admitting that both the federal and state governments were each sovereign within its sphere, they must have admitted that each was sovereign, paramount and supreme within its own sphere. But, if this language, to give each word its excessive meaning, would have been tautological; then these instruments have committed no error, but merely avoided repetition, by rejecting useless synonymes. To admit, that the words “sovereign, paramount and supreme” are synonymes, to express the highest degree of political power, bestows on the two latter their most excessive meaning; whilst there is no excess at all in allowing that meaning to the first; therefore this admission bestows on the doctrine of the court the utmost force of which it is susceptible. And yet after thus doing for it all that can be done, and more than it can claim, it is obviously defeated by the error of giving to one synonyme a different meaning from another; just as it is impossible to prove, that though three apples are of the same weight, yet that one may be made heavier than the others, by calling it a supreme apple. But I shall endeavour to prove, that even this ground is stronger than the opinion of the court is entitled to, by shewing that “sovereignty” describes a higher power, than “paramount or supreme,” and therefore that it was never intended to be subjected to them.
The word “paramount” is not mentioned in the constitution, nor any where adopted, that I recollect, by our political phraseology; wherefore in considering the leader, it will be unnecessary to pay much respect to a feeble ally. Hence I proceed to shew, that the word “supreme” is invariably used by the constitution, not in a paramount but in a subordinate sense to sovereignty.
“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.” This is the clause of the constitution, supposed by the court to confer on congress a power over the state governments and state sovereignties. These state sovereignties made, may revoke, or can alter the constitution itself, and therefore the supremacy bestowed upon the constitution, being some power subservient to the state sovereignties, demonstrates that the word “supreme” was used in a sense subordinate to these sovereignties; and being used in that sense, it is impossible that the people intended it as a revocation of those powers, or of any of their appurtenances, or of the spherical sovereignties, previously bestowed, never recalled, and specially reserved to the state governments, by the sovereignties, to whom the whole constitution and all its words, are subordinate. According to the construction adopted by the court, the stile of the constitution ought to have been this. “We, state sovereignties, do hereby establish a federal government invested with limited powers, and retain our state governments, with all their powers not delegated to the federal government, each of which governments shall be sovereign within their respective spheres, but over these sovereignties, we also create three supremacies; one a supremacy of the constitution; another, of the laws of the United States; and a third of the treaty-making power.” It is hard or impossible to serve two masters only. The court has turned the federal and state governments into sovereignties, and placed over all, three supremacies. The difficulties of such a system would be insurmountable: whereas, by acknowledging one master only, in the sovereignty of the people, and confessing the obligation of the political departments created by that sovereignty, to move within the orbits assigned to them, as great a degree of order may ensue, united with liberty, as is attainable by human wisdom.
Are these supremacies of co-ordinate and equal power; or are laws and treaties subordinate to the constitution? The constitution, the laws and the treaties are all declared to be the supreme law of the land, and therefore, as it could not have been designed to bestow on laws, an authority equal to the authority of the constitution, no construction can be correct, which does not sustain both the superiority of the constitution over laws, and also a perfect equality as to the obligations imposed by the supremacy declared; and such a construction is I think quite visible. The supremacy is not bestowed upon the federal government. It is a moral and not a personal supremacy which is established. It was not intended to confer on one department, sphere, sovereignty, or organization of persons, any superiority over another department, sphere, sovereignty, or organization of persons; and was merely a declaration of the respect to which the recited moral beings were equally entitled. The constitution cannot be personified, so as to be reduced to a supreme body politick distinct from the people; and if laws are to be personified by congress, and treaties by the president and senate, their supremacy would either be of a different nature from the supremacy of the constitution, or these two departments, neither of which, nor both constitute the federal government, would be made supreme over the federal and state governments, and equal to the supremacy of the people, if they are to be considered as the representatives of the supremacy of the constitution. But as no additional personal or national power was conferred by declaring the constitution to be the supreme law of the land, it proves that no additional personal or spherical power was conferred by declaring the laws and treaties to be also the supreme law of the land. The declaration, that the constitution was the supreme law, confirmed all its limitations, divisions, restrictions and limitations of power, and it never was intended that either should be altered in the least degree by laws or treaties, or be placed under the power of those who should make laws or treaties. On the contrary, the laws were to be made in pursuance of the constitution, and the treaties, under the authority of the United States. The United States have no authority, except that which is given by the constitution. Both the laws and treaties to be supreme must, therefore, be made in conformity with the powers bestowed, limited and reserved by the constitution, and by these we must determine whether a law or a treaty has been constitutionally made, before the question of its supremacy can occur. The judges are expressly referred to, as the curators or executors of this moral supremacy, and no other department is by the least hint recognized, as being able to impair or enforce it. And finally, all officers, legislative, executive and judicial, take an oath to support the constitution, which is a moral sanction in favour of a moral system; and none take an oath to acknowledge any species of personal or spherical supremacy. This clause then amounts to no more, than that the constitution shall be the supreme law of the land. As proceeding from the sovereignty of the people, the highest political authority, the term was proper; because it was paramount and supreme over whatever should proceed from any inferior authority; and as the constitution embraced our whole system of government, both state and federal, by delegating and reserving powers, the supremacy bestowed on it was intended equally and coextensively to protect and secure the powers delegated to the federal government, and those reserved to the states. In this construction of the word “supreme,” the court itself has literally concurred, in asserting “that it would be its duty to declare an unconstitutional law void.” The right of doing this arises from the supremacy of the constitution over law; from the restriction it imposes upon political departments or spheres to confine themselves within their limited orbits; and from its intention that each department or sphere should controul another, if it trangresses its boundary. Upon this ground the court has asserted this constitutional power in its own sphere. It can be defended upon no other; because the constitution does not say, that their judgments shall be the supreme law of the land. If the ground be solid in relation to the judicial sphere, it is equally solid in relation to the limited federal and state spheres. If the legislative federal sphere have no supreme power over the judicial federal sphere; because its power is limited by the constitution, and not extended beyond these limitations by the clause of the constitution under consideration; it follows, that neither the federal nor state spheres derive any supremacy over the other from the same clause, whilst acting within their limited boundaries.
In fact, the opinion of the court admits the soundness of this construction, though it qualifies the admission by an unexplained ambiguity, which ingeniously keeps the question out of sight. “It is a question of supremacy.” But it does not explain what this supremacy is, nor how far it extends. “It is of the very essence of supremacy to remove all obstacles to its action within its own sphere.“ By the words “within its own sphere” the court seems to admit, that a sphere ought to act within the boundaries prescribed to it, without suffering any hindrance from another sphere. This is all for which I contend; and if this be allowed (and it must be allowed to justify the judicial sphere in annulling an unconstitutional law of congress,) then neither the federal nor state spheres whilst acting within their spheres, are subjected to the impediments of the other, and each has a right to controul such impediments. But then the court produce the ambiguity by adding, that a supreme sphere may “so modify every power vested in subordinate governments, as to exempt its own operations from their influence.” It is useless to concede principles if they can be evaded. The court had previously admitted that the federal and state governments were “both sovereign with respect to the objects committed to them, and neither sovereign with respect to the objects committed to the other;” but now it takes it for granted, that the federal sphere is supreme, the state spheres subordinate, and that in consequence of this supremacy and subordinacy, the federal government has a right “so to modify every power vested in the state governments, as to exempt its own operations from their influence.”
Power in the exercise of verbal construction, and in deducing inferences from particular phrases, like a fine lady admiring a casket of jewels, very easily discovers whatever it wishes for, to be right, convenient, useful and necessary. Particular texts are often tortured to appease conscience, or to gratify prejudice; and good or bad intentions are equally fertile in expedients for surmounting obstacles. A single word is often so indefinite, that its meaning is controuled by another. A single sentence may generally be twisted into an enmity with principles plainly asserted, in any book; but the defects of language do not equally extend to an entire treatise. Thus the imperfections of isolated words and sentences, and the frailties of mankind unite to teach us, that the licentiousness of construction can only be controuled by an impartial estimate of a whole, and a candid comparison of its parts. If the reader shall examine the federal constitution by this rule, and should discover that it delegates a power to the federal government “so to modify every power vested in the state governments as to exempt its own operations from their influence,” he must conclude, that the decision of the court, founded upon the existence of this power in the federal government, is correct; but if the constitution invests the federal government with no such power, then it follows, that this decision, founded upon a supposition that it did, must be unconstitutional. This is in fact the very essence of the question; as interferences by the federal or state governments with powers delegated to the other, are in truth modifications of those powers; and it is extremely important to ascertain, whether a power so enormous and unspecified is common to both, or exclusively conferred upon the former. The latter is asserted by the court for the purpose of modifying the state right of taxation; by those members of congress who supported a bill for prohibiting slavery in a particular state, and is the ground upon which alone all interfering with the police of states can be defended.
It will be allowed, that the people of each state had, and exercised the right of modifying the powers vested in the state governments. If the federal government now have it, the most unexpected consequences will ensue. The people can no longer exercise the right, because they have given it away. If it be a concurrent right, should they exercise it, the federal government may re-modify their modifications. The state governments will be responsible either to the federal government singly, or both to this government and the people for their conduct. It was quite idle to reserve to the state governments the powers previously bestowed, if they were at the same time subjected to the subsequent modifications of the federal government. And the meditated check upon the federal government by the powers reserved to the state governments would be equally insignificant. These consequences of the construction given to the word “supreme” by the court, so completely subversive of the essential principles of our system of government, are a sufficient exposition of its incorrectness.
But the argument becomes stronger, when we resort to the provisions of the constitution. I shall venture to test the position relied on by the court, by the mode before practised of confronting it with a contradictory position; so that one or the other must be disallowed. It is a question of supremacy; the constitution has invested the states with a complete, and the state governments with a limited supremacy, over the federal government, and expressly subjected its operations to the influence of the latter, in sundry important instances. The states by common consent may dissolve or modify the union, over which, by the natural right of self-government, which they have never relinquished, they retain a complete supremacy. By the constitution, the state governments are invested with the rights of appointing senators and electors of a president, for the very purpose of influencing the operations of the federal government for their own security. They may forbear to exercise this right, and thus dissolve the federal government. They may elect the members of the house of representatives by a general ticket, and thereby very considerably influence its operations. They may compel congress to call a convention. They may ratify changes of the federal government, without its consent. They may affirm or reject amendments proposed by congress. They have a concurrent right of internal taxation with the federal government, and these concurrent rights may deeply influence each other; and they are exclusively invested with the appointment of all the officers of that force, upon which the safety and liberty of the nation depend. These powers seem to me, to invest the state governments with a limited supremacy over the federal government; at least it must be admitted, that they are such as may and do deeply influence its operations. The constitution gives no authority to the federal government to exercise such powers over the state governments. Can it then be true, as the position of the court declares, that the federal government have a right so to modify every power vested in the state governments, as to exempt its own operations from their influence? Upon the ground of this doctrine, the supreme court of the federal government has attempted so to modify the concurrent right of taxation reserved to the states, as to exempt the incorporating power assumed by congress, from its influence. This is one of the enumerated powers invested in the states, by which it was certainly foreseen and intended, that they might influence the operations of the federal government; and if in this case such an influence justifies a modification of the state power of taxation by the federal government, and even by one of its departments, the same reason will justify a modification of all the rest of the enumerated influencing state powers. The supreme court might by the same principle, appoint senators, electors, and militia officers, should the states neglect to do it; in order, by modifying these powers of the state governments, as being subordinate to the supposed supremacy of the federal government, to exempt the latter from their influence.
If, therefore, it should have been proved, that the federal government is not invested with a power of modifying the powers bestowed by the people on the state governments, the pretended supremacy, supposed to bestow a right so unlimited, does not exist; the modification on the state power of taxation was of course unconstitutional; and the question would seem to be settled. But it starts up again in a new form; and though it should be allowed that the entire federal government do not possess a right to modify the state constitutions, yet it is still contended, that one of its subordinate departments does possess it; and its supreme court have accordingly modified and restricted the power of internal taxation bestowed by the state constitutions on their governments. This power under the state constitutions was unlimited. It is not limited by the federal constitution. But the federal court have adjudged, that it is either necessary or convenient that it should be limited; and for that reason they have modified it by a precedent sufficient to justify other modifications of state powers to any extent, upon the ground of possessing an unlimited supremacy over the legislative and judicial power of the states.
The supremacy we have examined is confined to the constitution, the laws, and treaties. It is not extended to judicial decisions. Suppose congress should pass a law declaring such state laws as they pleased, to be unconstitutional and void. An excessive interpretation of the word “supreme,” might give some countenance to so evident an usurpation; and as one branch of the federal legislature is elected by the people, it would afford some security, however imperfect, against such a prostration of the state governments at the feet of the federal legislative power. But neither this excessive supremacy, nor this defective security, plead for lodging the same unlimited power in the federal courts. Were they to possess it, they might modify the state governments, in a mode, contrary to the will of congress, as is exemplified in the case under consideration. In creating the bank of the United States, congress did not endeavour to prohibit the states from taxing the property employed in that speculation. Had the state right to do so been considered in that body, its constitutionality might have been decided in the affirmative. The court, therefore, in assuming a power to restrain this state right, may have violated the will both of the federal and state legislature, and modified the state constitutions, contrary to the judgment of both. The state law asserted the right, the federal law is silent, and the court imposes a constitutional rule on both (as if it were itself a constituent or elemental power,) objected to by one, and never assented to by the other. This outstrips even the arbitrary principle laid down by the court itself “that the supreme government may modify every power vested in subordinate governments, to exempt its own operations from their influence.” It will not be asserted that the federal court is the supreme government, or that it has operations to carry on, which ought to be exempted from the influence of the subordinate state governments. If these governments are not subordinate to that court, it cannot modify their powers, even under its own principle; and if the federal government possesses this modifying power, it ought to be exercised by congress, before it can be enforced by the court. The court at most can only execute, and have no power to pronounce the modification. Congress might have intended, that the power of taxing the United States bank, like that of taxing state banks, should remain as a concurrent power, like the other concurrent powers of taxation. If that body conceived itself possessed of a power to modify the state power of taxation, it could only do so by its own act, and that act ought to have been explicit, that the people might, by election, have expressed their opinion concerning it. But when the modification is expressed by the court, the chief remedy for deciding spherical collisions, and for restraining each division of power within its own orbit, is wholly evaded, and completely transferred from the people to the judges.
But, though it should be allowed, that the court derives no supremacy from that clause of the constitution, which bestows it upon the constitution itself, the laws and treaties, yet it has been claimed under another. “The judicial power of the United States shall be vested in one supreme court, and in inferior courts. The judges, both of the supreme and inferior courts shall hold their offices during good behaviour. And in the next clause, this “judicial power of the United States” is defined and limited. By this clause, a judicial power is vested. Was it a limited or an unlimited power? It is expressed to be “the judicial power of the United States.” In the second section of the same article, the judicial power of the United States is expressly defined and limited; and this defined and limited judicial power, is that which is vested in the supreme and such inferior courts as congress may from time to time establish. The word “supreme” is evidently used in reference to “inferior.” The supremacy bestowed is over the inferior courts to be established by congress, and not over the state courts, either supreme or inferior. This is manifested by the division of jurisdiction between the supreme and inferior courts. In cases “affecting ambassadors, publick ministers and consuls, and where a state shall be a party, the supreme court shall have original jurisdiction. In all other cases before mentioned the supreme court shall have appellate jurisdiction.” “Before mentioned.” Thus expressly limiting the jurisdiction of the supreme court of the United States, to the subjects defined in the preceding article. If, therefore, any thing in the federal constitution is plain enough to be understood, I think we may certainly conclude, that the word “supreme” was not intended to extend the power of the federal court in any degree whatsoever. That court by declaring every local or internal law of congress constitutional, would extend its own jurisdiction; a limitation of which, attended with a power to extend it without controul, by a supreme power over the state courts, would be no limitation at all; since the power of supremacy would destroy the co-ordinate right of construing the constitution, in which resides the power of enforcing the limitation. A jurisdiction, limited by its own will, is an unlimited jurisdiction. As a further evidence of this conclusion, it may be observed, that if this word had bestowed “a supreme jurisdiction,” there would have been no occasion for a subsequent delegation of jurisdiction to the sepreme court; and that, as by the subsequent jurisdiction bestowed (in the few cases of original jurisdiction given to the supreme court excepted,) the power of the inferior courts is made the basis of the appellate jurisdiction, given to the supreme court, it follows, that if the word “supreme” does not extend the jurisdiction of these inferior courts, it does not extend the jurisdiction of the supreme court. As the word “supreme” is not applied to the inferior courts, it cannot invest them with any power over the state courts. And as the appellate jurisdiction of the supreme court is limited to the cases before mentioned, of which the inferior courts can only take cognizance, it cannot invest the supreme court with any power over the state courts, unless it has also invested the inferior courts with the same power.
The federal constitution does not say, “that the legislative power shall consist of one supreme and inferior legislatures;” because it considered the state and federal legislatures as independent of each other, within their respective spheres. Had it considered the state legislatures as subordinate to the federal legislature, the supremacy of the latter would have been declared, and the subordination of the former expressed, as objects upon which this supremacy was to operate. If one federal court only had been allowed by the constitution, the word “supreme” would have been unnecessary. In creating and specifying the objects, namely, the inferior federal courts, upon which the supremacy was to operate, all other objects are excluded. The judicial federal power therefore stands in the same relation to the state judicial power, as the federal legislative power does to the state legislative power; and if either be independent of the other whilst acting within its own sphere, both must be also independent of the other. If congress cannot repeal or injoin state laws, the supreme federal court cannot injoin or abrogate state judgments or decrees. If the federal legislative power be limited, the federal judicial power must also be limited.
For the elucidation of this very important part of the subject, I shall resort to authorities, as respectable as authorities can be.
Fed. p. 72. M. “The jurisdiction of the general government, is limited to certain enumerated objects, which concern all the members of the republick, but which are not to be attained by the separate provisions of any.”
Fed. p. 208. M. “The local or municipal authorities form distinct and independent portions of the supremacy no more subject within their respective spheres, to the general authority, than the general authority is subject to them within its own sphere.“ In the same page, however, Mr. Madison makes what the lawyers call an obiter observation, that is, he drops an opinion by chance, apparently without due consideration. “It is true,” says he, “that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government.” Perhaps I mistake his meaning. If he mean, “controversies between two state jurisdictions,” I admit that their decision is vested in the federal judicial power. But if, as I confess it appears to me, he meant “that the federal judicial power was vested with a right of deciding controversies between itself and the judicial power of the states,” I must with much confidence, yet with great respect, differ with him in opinion. The point ought to be determined by the constitution itself. Mr. Madison asserts that, “the jurisdiction of the general government is limited to certain enumerated objects.“ Is this case comprised within that enumeration? Is it said, generally, “that the state judicial sphere shall be subject to the controul of the federal judicial sphere?” Or is it said, specially, that controversies as to jurisdiction between these two spheres shall be decided by one of the parties? Are controversies between the state and federal legislative spheres to be also decided by one of the parties? Neither conclusion can consist with the preceding opinion of Mr. Madison, that “the local or municipal authorities form distinct and independent portions of the supremacy no more subject within their respective spheres, to the general authority, than the general authority is subject to them within its own sphere.” However, therefore, we shift our words or phrases, in describing the powers delegated to the federal government and reserved to the states; whether we call them sovereign, supreme, legislative, executive or judicial; they still retain their spherical, limited, co-ordinate and independent nature, in relation to each other, according to the construction of contemporary writers of the best authority.
Fed. p. 456. H. “There is not a syllable in the plan which directly empowers the national courts to construe the laws according to the spirit of the constitution, or which gives them any greater latitude in this respect, than may be claimed by the courts of every state:“ Unequivocally rejecting the idea of judicial spherical subordination.
But this constitutional question is deliberately and distinctly stated, apparently upon the most profound consideration, in a style, and with a precision, which it would be presumptuous in me to defend, in certain resolutions of the Kentucky legislature, passed in the year 1798, said to have been drawn by Mr. Jefferson, and bearing internally, evidence of flowing from an enlightened mind. The first is in these words:—“Resolved, that the several states composing the United States of America, are not united on the principle of unlimited submission to their general government; but that by compact under the style and title of a constitution for the United States and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving each state to itself the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no force: That to this compact each state acceded as a state, and is an integral party, its co-states forming, as to itself, the other party; that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the constitution, the measure of its powers; but, that as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the measure of redress.” The coordinacy of institution, the independence of each other, and the mutuality of the right of construing the federal constitution, are thus recognised and asserted, as existing in the federal and state governments; and the principle, which pervades the whole, must also pervade the parts. If the entire federal government possesses no supremacy over, and can require no subordination from the entire state governments, whilst acting within their respective spheres, no part or department of that government can exert a supremacy over, or exact a subordination from, the corresponding parts or departments of the state governments. The federal legislature having no supremacy over the state legislatures, the federal judicial power can have no supremacy over the state judicial power. The same prohibition of such claims, co-extensively forbids to both an enlargement of power by trespassing on the state sphere or state departments. It arises from the limited powers bestowed on the legislature and judiciary of the federal government, and the reservation of the residuary mass of right to the states.
With this construction, the oath of office prescribed by the federal constitution is a remarkable coincidence. Both legislators, judges and other officers, of the state as well as the federal governments, are required to take an oath to support the federal constitution; but neither federal legislators, judges nor other officers, are required to take an oath to support the state constitutions. The reason of this distinction is, that state legislators, judges and officers, have some duties assigned to them by the federal constitution, and would necessarily have others, arising from the laws of the United States; but, that federal legislators, judges or officers, having no duties to discharge under the state constitutions or laws, but being confined within the limited spheres defined by the federal constitution, no allegiance to state constitutions was necessary on their part. I cannot imagine a power more inconsistent with republican principles in general, and with ours in particular, than that claimed over the state laws, and consequently over the state constitutions, by the supreme federal court. It is under no obligation or responsibility of any kind to respect either. If it should violate its legitimate federal or spherical duties, it violates its oath; and is liable to trial and removal from office. But, in virtue of its supposed supremacy over the state courts, it might be tempted to annul state laws, to advance the power of congress, by whom it is paid and tried; and it might alter the institutions of the people according to its own pleasure, without even breaking an oath. The case is analogous in all its aspects to the claim of the British parliament, neither bound by an oath, nor elected, nor paid, nor removable by the people of the colonies, over the legislatures of these colonies; which were elected, paid and removable by the people, and also bound by an oath. A judicial power, though under the obligation of an oath, paid by the king of England, was justly considered in Massachusetts, as an outrage upon the principles of justice and liberty. It was a feather to one, created by and accountable to a native distinct government, emulous (as is the nature of man) of power, possessing a supreme power, over the laws of a collateral government, without being under any influence or responsibility to observe those laws.
But cannot judges declare unconstitutional laws void? Certainly. Constitutions are only previous supreme laws, which antecedently repeal all subsequent laws, contrary to their tenor; and the question, whether they do or do not repeal or abrogate such subsequent laws, is exactly equivalent to the question, whether a subsequent repeals a previous law. Therefore, judges, juries and individuals have a correspondent power of deciding this question in all legitimate occurrences. But the constitutionality of state laws cannot legitimately be decided by the federal courts, because they are not a constituent part of the state governments, nor have the people of the state confided to them any such authority. They have confided it to the state courts, under the securities of an oath, and of various modes of responsibility. The people also have confided to the federal courts a power of declaring an unconstitutional federal law void, under similar securities; but where such a power is neither bestowed by the people, nor any security against its abuse provided, its assumption by inference is repelled by the absence of every regulation for moderating its exercise. In fact, the spheres of action of the federal and state courts are as separate and distinct, as those of the courts of two neighbouring states. Because the judges of each state are empowered under certain regulations to declare a law of their own state void, it does not follow, that the judges of another state can abrogate it. The federal judges owe no allegiance to the state governments, nor are more a component part of them, nor are more responsible to them, than the judges of a different state. Ramsay’s United States, Vo. 1. p. 202. “Great Britain contended, that her parliament, as the supreme power, was constitutionally invested with an authority to lay taxes on every part of the empire.” “If the British parliament, said the colonies, in which we are unrepresented, and over which we have no controul, can take from us any part of our property, they may take as much as they please, and we have no security for any thing that remains.” p. 303. “That by the novel doctrine of parliamentary power, they were degraded from being the subjects of a king, to the low condition of being subjects of subjects.“ p. 306. “Where parliamentary supremacy ended, and at what point colonial independence began, was not ascertained.” p. 307. “The omnipotence of parliament was so familiar a phrase, that few in America, and still fewer in Great Britain, were impressed, in the first instance, with the illegality of taxing the colonies.” Let us parody this quotation. The federal court contends, that as the supreme power, it is constitutionally invested with an authority to abrogate state laws, and contract state revenue. If, say the states, this court, over which we have no controul, can take from us any law, or any revenue, it may take away as many or as much as it pleases, and we have no security for retaining any. By the novel doctrine of federal judicial supremacy, we are degraded from the right of internal self-government, to the low condition of being subjects of subjects. Where the federal jurisdiction ends, and where state jurisdiction begins, is ascertained by the federal constitution, but the omnipotence of federal supremacy, legislative and judicial, may become so familiar a phrase, that few may be impressed, in the first instance, with the consequences to which it tends, or the evils in which it may terminate.
The first instance of a spherical supremacy which I recollect, was the claim of the treaty-making power, to bind the taxing or legislative power, by stipulating in a treaty for the payment of money. This was a dispute between two federal political spheres; but the principles, upon which it has been or must be settled, are those by which the rights of the federal and state political spheres can alone be ascertained. In both cases, to find where powers begin and end, we must either conclude, that one sphere cannot be let into another under a claim of supremacy, or by any verbal construction, so as to abridge rights bestowed by the constitution; or concede, that the constitution has unsuccessfully attempted to establish divisions of power between political departments. The federal legislative and treaty-making powers are obviously more interwoven with each other, than the federal and state powers delegated and reserved; yet the federal legislature would not be at a loss to find limits for the treaty-making power, nor to discern the powers confided by the constitution to itself. As the federal legislative sphere may justly deny to the treaty-making power, a right to abridge the powers delegated to itself by the constitution, under a claim of supremacy, or by any species of construction; so, the state spheres may justly deny to the federal legislative or judicial spheres, a right to abridge by similar modes the powers reserved to them. Suppose the treaty-making power should stipulate with England to declare war against France; would that deprive congress of the right of preserving peace, with which it is invested by the constitution? Suppose in like manner that congress should stipulate with a corporation by one of those laws called charters (in awkward imitation of monarchical sovereignty,) that its property should not be liable to state taxation; can that deprive the states of a right as distinctly given to them by the constitution, as the right of declaring war is given to congress? Previously to an incorporation, its funds, of whatever species of property composed, were by the constitution subjected to state taxation. Could congress or the supreme court have exempted this property, directly, from the state constitutional right to tax it? If they could not, can they do it by the circumlocutory contrivance of using two words “corporation and charter;” neither of which is recognized by the constitution? Cases might be stated to shew, that there are many objects within the reach of a supreme or sovereign treaty-making power, to which ours does not extend; such as, stipulating to keep on foot standing armies; to raise armies and navies as foreign auxiliaries against nations with whom we are at peace; or to destroy the union by ceding states to form a kingdom for some foreign prince; and these powers may as correctly be implied because they are not prohibited, as the powers of supremacy claimed by congress or the court. If we must resort to the obvious ends, the general texture, and the special divisions and limitations of the constitution, to avoid these violations of its positive principles, by a treaty-making supremacy; the same remedy exists to defeat the evils, equally indefinite, which would arise from any other spherical supremacy. We have a multitude of political spheres, state and federal; and if the orbit of one does not terminate where that of another begins, I am unable to discern any boundaries between them, so convenient or necessary for preventing a political chaos. If either of these spheres may create corporate political spheres, capable of corrupting, or of diminishing the powers of constitutional spheres, the musick, after which we have been dancing for almost forty years, will I fear become so harsh, as to make us weep. The licentiousness to which construction may be carried is remarkably exemplified, by its attempts to invert the climax of supremacy, established by “the constitution of the United States.” “The constitution, the laws made in pursuance thereof, and the treaties made under the authority of the United States, shall be the supreme law of the land.” Under this clause, treaties have aspired to a supremacy over laws, and laws to a supremacy over the constitution, though both the legislative and treaty-making spheres have no powers, except those given by the constitution, and are limited by the authorities it bestows. It would seem therefore perfectly plain, that neither is invested with a supremacy, able to justify an abridgment of a power given by the constitution to the state spheres, and that these may resist such attempts, upon the same ground that the legislative federal sphere resists an attempt of the treaty-making sphere to abridge its constitutional rights.
The argument of the court may be thus condensed. The federal and state governments have limited powers under the federal constitution. The powers of both are attended by such a portion of spherical sovereignty, as is necessary or convenient for their execution. Sovereignty can legitimately use the means it may choose, for the execution of the powers it legitimately possesses. So far nothing is gained; because the sovereignty bestowed, and the means it may use, are limited by the spheres of action bestowed upon each government. But the difficulty is gotten over, and the court’s own argument overthrown, by thrusting the word “paramount” into the constitution. The mutuality and equivalence of the spherical sovereignties allowed to the state and federal sovereignties is revoked; and one is made an absolute sovereign over the other, by a construction of the word “supreme” and an interpolation of the word “paramount;” which must be unconstitutional, if the limited spherical sovereignties, previously assigned to each, are sustainable by a correct construction. To say the most for “paramount and supreme,” they are only tautologies of “sovereign;” and being so, shed no new light upon the case. Had the court declared, that the federal and state governments were each paramount and supreme, within their respective spheres of action, it would have only been a repetition of its assertion, “that they are each sovereign, within their spheres of action.”
The reader perceives that the enquiry is reduced a plain question. Is our system of government founded in the principle of co-ordinate political departments, intended as checks upon each other, only invested with defined and limited powers, and subjected to the sovereignty, supremacy, paramount power, superintendence and controul of the people; or in the principle of a supremacy in the federal legislature or judges, with its concomitant controul over the state legislative and judicial departments? If the division of powers among a great number of political departments, endowed with rights independent of each other, constitutes its chief beauty, its distinctive superiority, and its soundest security for human happiness; then the absence of supremacy or sovereignty in one department over the rest does not require the expedient of shuffling words and phrases for the purpose of getting rid of an imaginary defect, by introducing the very evil intended to be avoided. If words are to be tortured or borrowed, let it be done to sustain, not to subvert the essential principles of our political system; if we continue to love that, which other nations admire. Should congress assume a paramount or supreme power over the state governments, it would acquire the authority of the people themselves, naturally possessed, never transferred, specially reserved, and necessary for the preservation of their liberty. Even the English monarchy derives all its eulogies, and owes all its benefits to the want of supremacy and subordination between its political spheres, and to the collisions which their absence produces. By extending the same principle, our system of government has obtained greater eulogies, and diffused greater blessings. Of these eulogies and blessings, the checks and collisions between several legislative branches; between legislative, executive and judicial departments; and above all, between the federal and state governments, are the sources. To this principle we owe the valuable judicial right of restraining legislatures within their constitutional powers. To the same principle we have resorted for the same purpose, by dividing powers between the federal and state governments. Are the state spheres less respectable than the supreme court, or less able to restrain congress within its limits, that they must be doomed to subordination because of the great powers of the federal legislature; whilst the court feel their capacity and avow their resolution to controul these powers, if unconstitutionally exerted? If congress in consequence of the great power of the federal government possess a supremacy over the state governments, what must be the power of the court, which claims a supremacy over congress? As supremacy has been found to govern sovereignty, it is necessary to find some word, by which the court can govern supremacy. By turning our attention from a complexity of words and phrases, to the true principles of the federal constitution, we shall find one by which the federal court, feeble as it is, is able to controul the federal legislature, powerful as it may be; a principle, in which the court confides so firmly, as to express its prowess for vindicating its spherical rights. Feeble also as the state governments may be, they are protected by the same power upon which the court relies, and have no reason to be less firm and loyal in discharging the duties with which they also are entrusted. The strength of the government lies in the people. They are the protectors and supervisors of the collateral political spheres; which they have created. If one of these spheres could acquire sufficient power to controul the others, it would, like an officer of a monarch, who can controul all the other officers of the government, obtain a supremacy over the monarch himself; as many prime ministers of kings have actually done. Every inference deducible from the inconvenience of conflicting powers, and every reason in favour of a regular series of political subordination between the several departments of a government, applies as forcibly against the check of one legislative chamber upon another, and of judicial upon legislative power; as against mutual checks of the federal and state governments upon each other; and to supply, what the reasoning of the court craves, the whole system of division and limitation of power must be destroyed. If it should make a breach at one point upon this principle, especially at the strongest, there can either be no talisman able to save the weaker from destruction, or there is one upon which the strongest may rely.
I cannot discern any difference between a supremacy in one man, or in one political department; between a singular or a plural absolute power. The divine supremacy both of kings and of popes have been limited by the more divine supremacy of human nature. Neither the uniformity of religion, nor a complete subordination of one civil department to another, has, by any modern writer of credit, been considered as equally beneficial to mankind, with the principle of limiting power, whether it be entrusted to one person, or to a political department. The bulls of the pope claimed supremacy; but the conclave of cardinals claimed and exercised a supremacy over these supreme bulls; and the Roman catholick countries found it necessary to limit both these supremacies. The laws of congress claim a general supremacy, but the supreme court claims and exercises a supremacy over them; and the division of powers by the constitution, like the catholick nations, possesses a right to limit, and has limited both these supremacies also. The supremacy of the pope, and of the kings of England, waged a long war against the sovereignty of nations and the rights of human nature, claiming a power to remove all obstacles which should impede its will, and to exempt its operations from controul; but the war of these allies terminated in their defeat. The supremacy of congress and of the court, in alliance also, has declared war against the sovereignty of the states; but how it will terminate, is hidden in the womb of time. We must enlist either under the banner of spherical supremacy or of a limitation of political power.
Previously to the union, the states were in the enjoyment of sovereignty or supremacy. Not having relinquished it by the union, in fact having then exercised it, there was no occasion, in declaring the supremacy of the constitution and laws made in pursuance thereof, to notice that portion of state supremacy, originally attached to, not severed from, and of course remaining with the powers not delegated to the federal government; whilst it was necessary to recognize that other portion of supremacy, attached to the special powers transferred from the states to the federal government. But, by recognizing the supremacy transferred, it was not intended to destroy the portion of supremacy not transferred. The supremacy retained, and a choice of means convenient or necessary for the execution of the powers reserved, was as indespensable an appendage of state rights, as of the limited powers delegated to congress. And in fact the unqualified supremacy, bestowed upon the constitution, is equally a guaranty of state and of federal powers, as is demonstrated by the positive limitation of the supremacy bestowed on federal laws, to such as were conformable to the restricted legislative power, created by the constitution. Suppose a state should declare war, tax imports, or regulate commerce; or, that congress should tax exports, alter the course of descents, or liberate the negroes; would these be questions of supremacy, unconnected with the powers actually delegated and reserved? If not, supremacy is limited by these powers, and cannot extend them. In like manner, neither the federal nor state courts, can under colour of supremacy, exceed its own sphere. If one should assume admiralty jurisdiction, and the other the distribution of intestates’ estates, the party usurping could not constitutionally defend its usurpation under colour of supremacy. Unconstitutional judgments, like unconstitutional laws, are null and void, and both courts are mutually bound by their oaths to the constitution, and have a mutual right to resist and defeat, by every means in their power, unconstitutional laws, falling within their respective jurisdictions. Had an oath of loyalty, not to the constitution, but to the supremacy of one court, been imposed, it might have been otherwise. An exclusive right in either to ascertain the extent of its own jurisdiction would leave its jurisdiction without limits, and the rights of neither judicial sphere can be defended against the other, except by using all the means it possesses; just, as a senate and house of representatives can only defend their respective constitutional rights. The supremacy of the constitution is not confined to any particular department or functionary, but extends to our entire system of political law. Under its protection, the federal senate has a right to defend itself against the house of representatives; and the federal judicial power against the federal legislative power; and if so, it seems impossible to doubt, that the same sanction invests the state and federal judicial powers with a mutual right of self defence, against the aggressions of each other.
I renounce the idea sometimes advanced, that the state governments ever were or continue to be, sovereign or unlimited. If the people are sovereign, their governments cannot also be sovereign. In the state constitutions, some limitations are to be found; in the federal constitution, they are infinitely more abundant and explicit. Whatever arguments can be urged against the sovereignty of state governments, stronger can be urged against the sovereignty of the federal government. Both governments are subjected to restrictions, and the power by which both were constituted has entrusted neither with an exclusive power of enforcing these restrictions upon the other, because it would have conceded its own supremacy by so doing, and parted with its inherent authority.
No derived power can be greater than the primitive power. No state, nor a majority of states, had any species of primitive sovereignty or supremacy over other states. Elections by states, therefore, cannot confer upon a majority of congress a supremacy never possessed by a majority of states, especially as from the form of the senate, the representatives of a minority of people may pass a law, and this representation of the minority might, if it possessed a legislative supremacy, exercise a sovereign power over the majority. If federal legislatures do not possess an absolute supremacy, federal judiciaries cannot possess it, since judgments cannot enforce that which is not law. In conformity with this reasoning, neither federal legislative majorities, nor a majority of the states, can amend the constitution, because it was a compact by which each state delegated for itself only limited powers to the federal government; attended by a supremacy not of any political sphere, but of the constitution, limited and confined to the powers delegated, and not extending to the portion of primitive state supremacy, never delegated. Thus it happened, that no state was bound by the constitution, until it had acceded individually to that compact. And hence it results, that the right of construing the constitution within their respective spheres, is mutual between the state and general governments, because the latter have no supremacy over the state powers retained, and the former no supremacy over the federal powers delegated, except that which provides the stipulated mode for amending the constitution.
It is objected, that if the supreme federal court do not possess an unlimited or unchecked supremacy in construing the constitution, clashing constructions will ensue. This is true; and yet it is not a good reason for overturning our system for dividing, limiting and checking power, if that system be a good one; and if it be even a bad one, the people only, and neither one of their departments separately, nor all united, can alter or amend it. The objection applies as strongly to the other departments of our government, as to the judicial. If the federal legislature and executive do not possess an absolute supremacy over the state legislatures and executives, clashing constitutional constructions will ensue. The jurisdiction of the federal judicial power is as expressly limited, as the legislative and executive federal powers. There is no judicial supremacy recognized in the supreme federal court, except that over inferior federal courts. And, if the supremacy of the constitution bestows upon any federal department a supremacy over the correspondent state department, it must bestow upon every federal department, a similar supremacy over the other correspondent state departments.
It is therefore obvious, that the subject proposed by the objection for consideration is, whether it is better to abandon our primary division of powers between the state and federal governments, to prevent clashing constructions; or to retain this chief security against a gradual introduction of oppression, trusting to the mutual prudence of these governments, and the supreme authority of the people, for meeting the inconvenience, as it appears. The greatest scope of human wisdom is, to compare evils and choose the least. I cannot discern the wisdom of one who cuts off his head, lest his face should be scratched occasionally as he journeys through life. Montesquieu has somewhere said, that when the savage of America wants fruit, he cuts down the tree to obtain it. Shall we act with still less foresight, by cutting down the division of power between the general and state governments, calculated to produce the fruit of moderation in both, that one may cram us with the fruits of supremacy?
How or when have co-ordinate political spheres existed, with a supremacy in one over the others? The idea involves a contradiction. Indeed, the regal sphere in England has often attempted to reconcile it in various ways, and with temporary success. Henry the 8th exercised a supremacy over the two other spheres (at length by rebellions and civil wars rendered co-ordinate,) strongly resembling that now claimed over the state spheres; and the blessings reaped from his success, and the success of his daughter Mary, and of the Stuarts, in removing the evil of clashing powers, by the help of supremacy, were such as we shall reap by pursuing the same policy. It is very true, that the federal and state courts may occasionally carry on little wars with the weapons called injunction and habeas corpus, which both have an equal right to use; but then these weapons cannot shed blood, confiscate property, nor burn hereticks, as supremacy has frequently done; and besides, the states can at any time force the combatants to lay down their arms.
The mutuality of the right of construction in the several departments of the state and federal governments, was the reason, which suggested the section of the constitution of the United States requiring that, “the senators and representatives in congress, and the members of the several state legislatures, and all executive and judicial officers, both of the United States, and of the several states, shall be bound, by oath or affirmation, to support the constitution.” The mutuality of the oath, by imposing a common duty, implies a common right; because the duty cannot be discharged, except by exercising the right of construction. To impose the duty by the highest sanction, and yet to have impliedly designed that its performance should be rendered null and void, by a constructive supremacy in one political sphere over the others, would amount to the same thing, as if the oath had been, that the enumerated spheres should be subordinate to one, invested with a supremacy over the rest. Would this latter have been equivalent to the actual oath? If not, can a construction by which it is substantially enforced, be correct? By the actual oath, the constitution, in conformity with its great principle of a division and co-ordinateness of powers between the state and general governments, divides also its confidence for its own preservation. The same confidence is divided by the special powers invested in the states and in the general government for its execution. If the oath binds the federal judicial power to disregard a mandate from a state judicial power, prohibiting the exercise of its constitutional powers; it also binds the judicial power of a state, to disregard a similar mandate from the judicial power of the union; and compels both to protect the officers and individuals upon whom their respective jurisdictions may operate: otherwise, one jurisdiction may supersede the other. This would be certainly a greater evil, than even a necessity for a reference to the people to settle a collision.
If a greater sphere of action conferred supremacy according to the constitution of the union, and if the federal government possesses the greater sphere of action, (the positions upon which the court relies as justifying its decision,) where was the necessity for declaring the constitution and the laws made in pursuance thereof to be the supreme law of the land? The supremacy had passed, as the court asserts, attached to the greater sphere of action. If it was attached to this greater sphere of action, it is not bestowed by this clause; and yet this clause is referred to by the court, as auxiliary to their implied supremacy. In the several mixtures of truth and error to be found in the opinion of the court, this has been managed with the most ingenuity. The supremacy expressed has been united with the supremacy implied, without any examination of the nature of the first, or of its great difference from the latter. A government of laws and not of men, is a definition of liberty; a government of men and not of laws, of despotism. The expressed supremacy asserts the first principle; the implied supremacy of the men composing the legislative or judicial federal departments, asserts the second. By blending them, their extreme contrariety is endeavoured to be obscured, and the clause conferring supremacy on the constitution and the laws made in pursuance thereof, is very ingeniously changed from a restriction, into an amplification of power. Yet it is under the supremacy conferred upon the constitution by this very clause, that the federal judicial sphere exercises a controul over the federal legislative sphere in the case of unconstitutional laws, because the difference between a supremacy of the constitution and a supremacy in congress, is manifest; whilst the same court insists upon a supremacy in congress over the powers reserved to the states, and denies to congress a supremacy over the powers delegated to itself. This seems to me to be obviously incorrect, because I consider the constitution to have derived from this clause an absolute supremacy for the preservation of the powers reserved to the states, as well as of those delegated to the general government; and not as bestowing on any one sphere, state or federal, an exclusive right to ascertain the extent of those powers; such a right being in fact a despotism of men.
Important as this subject is, to avoid prolixity, I shall overlook sundry features of the constitution, and only add a few observations to those already urged. A union of states clearly admits the sovereignty and equality of the parties uniting. A union does not, as a consequence of union, tacitly and impliedly, reduce these sovereign and equal parties to subordinate corporations; because in that case, they could not alter or dissolve the union, without the consent of the power, to which they would be subordinate. The federal government is allowed by the court to be limited. Can it be limited by a power subordinate to itself, or is it only limited by the didactick lessons of the constitution? The Federalist speaks of the jealousy which would arise between the federal and state governments, because they would be mutual checks upon each other, as co-ordinate powers always struggle for sovereignty; and of the great security for a free government, arising from this feature of the constitution. But a paramount or supreme power in congress obliterates this feature. And of what avail is a preceptive limitation, bereft of the co-ercive resource for its execution? If congress be a paramount or supreme judge of its own legislative power, its power is unlimited. We have no conception of an unlimited power, beyond one, limited only by its own will. If the jurisdiction of the supreme federal court is limited only by its own will, it is in like manner unlimited. Power can never be checked by itself, or by its own subordinate instrument. The constitution certainly intended to invest the legislative and judicial spheres of the federal and state governments, with distinct and independent objects of legislation and cognizance; but, these mutual rights however clear can never be preserved, if one party possesses a supremacy over the other, and the other, no power of resistance. Mr. Locke has somewhere said, “that no man has a right to that, which another has a right to take from him.”
The art of melting up brass with gold, and calling the whole mass gold, is not a new one. When good and bad principles are thus fused together, it requires some intellectual chymistry to separate them. The court say, “the result is a conviction that the states have no power by taxation or otherwise to retard, impede, burden or in any manner controul, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in congress. This we think the unavoidable consequence of the supremacy which the constitution has declared.“ The supremacy which the constitution has declared! This phraseology conveys a different idea from “the supremacy of the constitution.” The foregoing part of the extract only amounts to an assertion, that congress have a right to pass constitutional laws, and that the states have no right to resist them. So far the metal is pure. But, instead of declaring that these conclusions result from the powers delegated to congress and prohibited to the states, they are said to be “an unavoidable consequence of the supremacy which the constitution has declared;” as if it had declared any species of supremacy to which it was itself subordinate. Here lies the essence of the question, and here the court are silent. They have not informed us, whether the declared supremacy created a sphere able to legislate or to judge unconstitutionally; nor pointed out the remedy, in case any such sphere should attempt to do so. There is no such question as the court have stated, namely, whether constitutional laws are supreme or obligatory. The true question is, whether any one political department is invested with a supreme power of deciding, what laws are constitutional, and of course obligatory. Now, if the supremacy of the constitution be really the declared supremacy, the court ought to have ascertained the objects upon which it was intended to operate, in order to decide this true question. These undoubtedly and principally are both the state and federal political departments or spheres, all of which being themselves subordinate to the declared supremacy of the constitution, no one could derive from that declaration a supremacy over the rest; and what would be still more absurd, a supremacy over the constitution itself, which would be involved in an exclusive right of deciding upon the constitutionality of laws or judgments. The declared supremacy of the constitution embraces the rights reserved to the states, as well as those delegated to the federal government; and therefore, if the administrators of the delegated rights derive from it any species of supremacy, the administrators of the reserved rights must derive from it the same species of supremacy, because both are guaranteed by the same sanction; namely, the supremacy of the constitution.
That the phrase “the supremacy which the constitution has declared” was intended by the court to convey a very different idea from “the supremacy of the constitution,” is demonstrated by the following quotation from its opinion. “That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to controul the constitutional measures of another, which other, with respect to these very measures, is declared to be supreme over that which exerts the controul, are propositions not to be denied.” And yet I think that all of them are deniable or of no weight. It is denied, that the federal government is declared to be supreme over the state governments. It is even denied, that the federal government is declared to be supreme in the exercise of its constitutional powers, any farther than the state governments, are declared to be supreme in the exercise of their constitutional powers. It is contended, that the constitution, and not either of these governments is declared to be supreme, and that its supremacy is an equivalent guaranty of the division of powers it has made. And it is concluded under the arguments previously urged, that the repugnance to the constitution is exactly the same, whether the federal government shall controul the constitutional measures of the state governments, or the state governments shall controul the constitutional measures of the federal government. It was to prevent evils thus repugnant to the nature of the constitution, that the powers of each were made co-ordinate, and a mutual right of construction delegated and reserved. If the remedy be defeated, the repugnance follows. The propositions “that the power to tax involves the power to destroy, and that the power to destroy may defeat and render useless the power to create,” appear to me to be both incorrect and irrelevant. Shall not civil government tax, because a power to tax may destroy? Have not both the state and federal governments a power to tax; can they therefore destroy? Does not our political system contain remedies against an abuse of the power to tax? Can either government destroy by unconstitutional laws or usurpations? If we have legitimate modes of preventing it, why should an apparition terrify us into an abandonment of these modes? May not a power in the federal government to destroy state laws, defeat and render useless, the state power to create laws? May it not defeat and render useless, the power of the states to create a new constitution? How does a power to destroy, defeat and render useless a power to create? Is not the destruction of the old, and the creation of our new confederation, a refutation of the assertion? Did not this power reside, and does it not yet reside in the states? Is it not recognized by the constitution? Has not the constitution by this recognition, and by depending on the states for senators, and other materials for sustaining the federal government, admitted the state power to destroy and create? If the states have this power, where is the danger of their exercising it indirectly by opposing a constitutional law of congress? On the contrary, is not their acknowledged power over the constitution, a security for a temperate and conscientious opposition to unconstitutional laws? These general propositions, therefore, do not prove their conclusion of a supremacy in the general government over the state governments; but the first, however irrelative in its present shape, may, by a small alteration be rendered extremely applicable. A power to prohibit a government from taxing involves the power of destroying that government. If congress may take from the states, by virtue of the spurious supremacy assigned to it, one object of taxation, they may take away all; and I know of no better weapons to be employed by co-ordinate powers, always struggling for supremacy, than a right in one and not in the other, to withdraw from its competitor, by corporations, subjects of taxation.
But this argument is foreseen and opposed in the opinion of the court. That opinion declares, that “all subjects over which the sovereign power of the state extends are objects of taxation; but those, over which it does not extend, are upon the soundest principles, exempt from taxation. The sovereignty of a state extends to every thing which exists by its own authority, or is introduced by its permission; but does not extend to the means employed by congress to carry into execution powers conferred on that body by the people of the United States. We find on just theory a total failure of the original right to tax the means employed by the government of the union, for the execution of its powers. The principle for which the state of Maryland contends, is capable of arresting all the measures of the general government, and of prostrating it at the foot of the states.” If I understand the assertions of this extract, (as to which I am extremely doubtful,) they either apply against the paramount or supreme power claimed for the federal government, or are incorrect in point of fact. “All subjects, over which the sovereign powers of the state extends, are objects of taxation.” Whether sovereignty be natural or conventional, I have endeavoured to prove, that it resides in the people of each state. The conventional sovereignty created in each state, embraced and extended to every species of property, real, personal and mixed. Therefore, property of every kind was an object of taxation before the confederation. Have the states relinquished by that compact a right to tax any species of property, except imports and exports? If not, as the sovereignty of the states extends to all internal property, and as all objects to which it does extend are objects of taxation, a conclusion adverse to the conclusion of the court is unavoidable. To avoid it, the court subjoin, that which they seem to consider as a new and explanatory position. “The sovereignty of a state extends to every thing which exists by its own authority, or is introduced by its permission; but does not extend to the means employed by congress to carry into execution powers conferred on that body by the people of the United States.” The first member of this assertion is merely a repetition of the idea of sovereignty, as whatever it extends to, may be said to exist by its authority. Hence, the observations just urged apply to this modification of the same idea; to which it may be added, that property, so far as it is a conventional or social right, may be said to exist by the authority of the sovereign power, with peculiar propriety. So far, the positions of the court seem to be conclusive against its decision. But here a new, authoritative, and unconsequential assertion is advanced. “The sovereignty of a state does not extend to the means employed by congress to carry into execution the powers conferred on that body by the people of the United States.” What! not if these means contract or destroy the state sovereign right of internal government? It is difficult to discern, what is meant by the inexplicit word “means,” nor could any have been selected, more suitable for establishing a precedent without limits, and a judicial supremacy without controul. If it includes men or property, so far as congress may employ either as means for executing its powers, then the assertion is incorrect; because, the sovereignty of the states does extend both to men and property thus used as means. If a federal judge commits a crime or incurs a debt, he is amenable to the jurisdictions of state sovereignties. All resident federal officers are liable to pay a state poll tax, and the taxes imposed for supporting the poor, and keeping up roads and bridges. The property, real and personal, of all these descriptions of persons, to which we may add the president and members of congress, is liable to state taxation, and their persons exposed to state jurisdictions. Are none of these persons means employed by congress? If they are, where is the distinction to be found in our system of government, under which all the means expressed, to be employed for its own execution, imports excepted, are left as they were found, exposed to state sovereignty, by which under cover of implied means, congress may remove either persons or property, beyond the reach of state sovereignty; and liberate them from its cognizance, whilst both themselves and their property remained subordinate to it? Are bankers more worthy means to be employed for executing the constitution than judges?
But, suppose we admit “that the state sovereignty does not extend to means either expressed or implied, employed by congress,” and allow that banking may be correctly numbered among the latter; I would ask, whether it is the persons or the property of the bankers, which are thus absolved from state allegiance, and excluded from state jurisdiction? If the former, they may be killed with impunity; if the latter, it may be plundered without redress. The federal government have no jurisdiction as to local wrongs, and the states can have no jurisdiction as to objects over which they have no sovereignty. If, however, they do possess a sovereignty, able to protect persons and property, though employed by congress as means to effect ends, that sovereignty extends to taxation, as protection and contribution are reciprocal political principles, and it would be unjust to the rest of society, to establish a sub-society, entitled to the one and absolved from the other.
Far from admitting, however, a position which would produce such consequences, I contend that the state sovereignty extends to all the means which congress can employ. It is necessary to protect the lives, the limbs, and the reputations even of the standing army; and to secure every atom of property, from which the federal government can extract resources. Except for the protection of state sovereignty, even imposts would fail. Whatever is not a subject of a sovereignty, is not entitled to its protection. Congress cannot pass a municipal law to protect persons or property, because the federal government is in no respect a sovereignty. Private property exists by, and is subject to state sovereignty. With this opinion the Federalist, formerly quoted, when explaining the concurrent power of the state and federal governments, as means for effecting the ends respectively confided to them, explicitly concurs. To me it seems, that the two governments are designedly blended and interwoven with each other, that each may contribute towards the preservation of the other; and that a claim of independence, sovereignty or supremacy, in favour of one, is unfriendly to the federal constitution in general, and to the federal government in particular. If this be true, is there not something invidious and reprehensible in this expression used by the court? “The principle for which the state of Maryland contends, is capable of arresting all the measures of the general government, and of prostrating it at the foot of the states.” Without enlarging upon the fact, that the federal government is dependent upon the states for its existence, this principle may be compared with that contended for by the court. The state of Maryland contends for its original and reserved right to tax property. The court asserts, that congress by creating corporations may diminish or destroy the state resource for raising revenue, co-extensively with its own pleasure. By the first principle, the pecuniary resources for sustaining the federal government are untouched; by the second, those of the states become dependent on the federal government. By the first, the power of both governments, either original or delegated, as to revenue, remains concurrent; by the second, congress assumes a power of placing whatever property it pleases beyond the reach of contribution for the support of either. By the first, a sovereignty which created private property, retains its rights; by the second, a right is claimed on behalf of a spurious sovereignty to create private property, or rather to rob the legitimate sovereignty of that which it had previously created. If congress be indeed a limited sphere, as the court admit, it can neither create private property, nor absolve it from taxation, because these are attributes of sovereign, and not of limited spheres. Let the reader consider whether the principle of the court is not capable, in theory, of arresting all the measures of the state governments and prostrating them at the foot of congress. I say in theory, because I trust that in practice, all efforts for rendering these departments, equally necessary for our liberty and prosperity, jealous of, or hostile to each other, will be unsuccessful; and that both will cultivate, not the means of acquiring a paramount or supreme power over each other, but those for advancing the publick happiness.
But the court, instead of confiding in the arguments which I have attempted to examine, endeavour to supersede them all, by observing that “the legislature of the union can be trusted by the people with the power of controuling measures which concern all, with the confidence that it will not be abused.” Can be trusted by the people! The reiterated attempts to distinguish between the people and the states, to sooth and flatter the former by compliments to their elective sagacity, and by insidious blandishments to seduce them from the substantial ground of checks and balances, into the intricate and slippery paths of passion and confidence, are sufficient to awaken all the vigilance of those who believe, that power must be divided, limited and controuled, to keep it within bounds. In its every stretch, it uniformly solicits the popular confidence by protestations of integrity and promises of moderation. But, in considering the rights under the constitution of the federal and state governments, an estimate of the confidence due to either is certainly inapplicable to the subject, and productive of a malevolence, to be deprecated as the greatest national misfortune. Shall we exchange our constitutional compact, for a succession of artifices to win popular favour, or to take advantage of popular folly? Is not an appeal from an investigation of constitutional principles, to an estimate of fluctuating popular confidence, an acknowledgement of diffidence in the arguments previously advanced? If, however, a scramble for popularity is to be substituted for a limitation of powers, let us beware how we stake the federal government upon the event of the confusion. Mr. Madison, p. 252 of the Federalist, has observed, that “the powers delegated to the federal government are few and defined. Those, which remain to the state governments, are numerous and indefinite, and extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.” And in page 251, “the state governments may be regarded as constituent and essential parts of the federal government; whilst the latter is in no wise essential to the operation or organization of the former.” The reader will see in these quotations an affirmation of the principles for which I have contended in this section; and he will also discern, that the popular confidence has been extended in a greater degree to the state than to the federal government, both in the mass of powers bestowed, and also in the dependence upon the former to which the latter is subjected. I forbear to enumerate the advantages which the states possess in this struggle for confidence, because I earnestly hope that the ever-to-be-avoided contest will never occur. They are perhaps too copiously remembered in the book last quoted. Let me, however, remind the reader, that the same book describes the superior sagacity and intelligence of the state legislatures, for detecting and repelling artful and insidious violations of the federal constitution, as a feature of our political system, most happily contrived to prevent the bad effects universally experienced from tornadoes of antipathy, affection, prejudice and zeal, to which even representative absolute power has been universally subject; and by which a mighty effort in France to establish a free government was frustrated. How can this feature of our political system, so highly eulogised in the Federalist, be preserved, if the means for giving it efficiency should be taken away from these same state legislatures, by investing the federal judges with a supreme power over these means? Ought this inestimable feature of our government, by which deliberation is substituted for passion, intelligence for prejudice, and restraint for unshackled ambition, to be exchanged for a confidence, in a single legislative department? Yes, says the last extract from the opinion of the court, it will be advantageously bartered for a power in the legislature of the union to controul measures which concern all, because the people can possess a confidence that it will not be abused. But, the constitution intended, according to the Federalist, that the legislatures of the states should be a check upon the legislature of the union, and when this check is endeavoured to be defeated by the words “confidence and supremacy,” it only illustrates the absurdity of construing it by an excessive interpretation of particular terms, instead of adhering to its obvious intention.
The convenience or necessity of uniformity is the great argument, upon which this vital change of the federal constitution is contended for. Archbishop Laud, under the supremacy of Charles the second, attempted to effect a religious uniformity by the instrumentality of judges, and drew for that purpose a great portion of the business of the common law courts, into the ecclesiastical, having at their head one supreme court. His object was to establish arbitrary power; and that his means were as wise as they were wicked, is proved by the necessity of a long and bloody civil war to defeat it. The rights of the puritans under Charles’s supremacy, experienced the fate to be expected by the rights of the states subjected to the jurisdiction of federal judges, under a supremacy in congress. One sect, subjected to the laws and judges of another sect, or one government, subjected to the laws and judges of another government, may consider its rights as equally secured or lost. The English saw the consequences of the judicial usurpations by the ecclesiastical courts, and many great men, though adverse to the puritans, united with them to defeat a progress so obvious towards arbitrary government. Every stretch of the jurisdiction of the federal courts, in virtue of the supremacy of congress, must operate upon state constitutional rights, as accessions of ecclesiastical jurisdiction, in virtue of the supremacy of Charles, operated upon common law rights in England. The uniformity attempted is as impracticable and chimerical in one case as in the other. If religious sects, severed by speculation, cannot be reconciled by any thing short of tyranny, how can great states, severed by local interests, be coerced within one bandage by a weaker power? The remedy in one case is, to let the opinions and the internal self-government of churches alone. The remedy provided by the federal constitution for the other, was also to let alone the local interests and internal self-government of the states. If one state, or a majority of states, under the contended-for supremacy of congress, to be enforced by the federal court, should interfere with the internal affairs of another; it cannot be justified by any mode of reasoning; except one, which would prove that one church, or a majority of churches, may rightfully and beneficially interfere with the internal affairs of another. Mankind have discovered, that equal or co-ordinate religious rights are preferable for human happiness, to uniformity; and every sect treats the idea of submission to another sect, with scorn and derision. Laud lost his head for assailing an opinion so natural, by ecclesiastical supremacy. Will the notion in the states of their natural right to internal self-government be more conquerable, by federal supremacy? Religious uniformity was recommended as a good thing by cunning knavery or fanatical zeal; but neither philosophical theory nor fanatical zeal will advocate the uniformity to be produced by the supremacy of congress or the federal court. Solid selfishness, and not moral reasoning; to destroy, and not to nurture our constitutional checks and divisions of power, will be the motive for assailing state rights. No important collision would ever happen between the federal and state governments, if it was referred to the arbitrament of the common good or general interest only. To keep the peace between them, it is only necessary to discern whether they are embroiled by honest patriotism, or by the pretended patriotism of monopoly, speculation, selfishness or ambition. Even churches have been much oftener involved in controversies by fraudulent and pernicious designs, than by honest and intemperate zeal. There was no remedy against such fraudulent arts, except that of preventing the artificers from getting any thing from their occupation, by allowing to these churches the natural right of internal self-government. So, by a sacred adherence to the right of the states to internal self-government, the manufacturers of broils between them and the federal government, would be disabled from getting any thing by the occupation, and then the business will cease. In times of ignorance, mankind have been bitten by a political or religious tarantula, and either cured or made worse by sounds; but now, their knowledge is such, that they can keep both their temper and their honesty with great philosophy in all discussions, which do not involve some exclusive advantage for themselves.
Besides the counterpoise intended by the federal constitution to be established between the federal and state legislatures, two clauses of the constitution seem positively to have renounced the idea of any species of sovereignty or supremacy, by which congress could create or regulate property. It must purchase with the consent of the state legislatures real property, however necessary or convenient in its opinion for the common defence or general welfare. As this consent is necessary to subtract real property from state resources, and subject it to federal legislation, it follows, since the state internal power is the same over both real and personal property, that the latter cannot be subtracted from the state internal power, and transferred to the exclusive legislation of congress, without any state consent. Congress may dispose of, and make regulations concerning the property of the United States, implying, very distinctly, that it cannot dispose of, or make regulations concerning the property of individuals, embraced by the states. These, and other specified powers given to congress over persons and property, seem to demonstrate, that it does not possess any unspecified power over them derived from the words “sovereign and supreme.”
Finally, it ought to be observed, that the constitution does not invest the federal court with any jurisdiction, in cases of collision between either the legislative or judicial powers of the state and federal governments; and as such a jurisdiction would be infinitely more important than any other with which it is endowed, the omission is not sufficiently accounted for by saying, either that the case was overlooked, as never likely to happen, or, that though its occurrence was foreseen as extremely probable, this important jurisdiction was bestowed by inference only, whilst cases of jurisdiction comparatively insignificant were minutely expressed. But the omission is well accounted for, if we consider the constitution as having contemplated the state and federal governments as its co-ordinate guardians, designed to check and balance each other; since, having established that primary and important principle by the division of powers between them, it would have been as obvious an inconsistency to have bestowed a power on the federal courts to settle collisions as to their mutual rights, as to have reserved the same supervising power to the state courts.
I hope the reader has perceived the propriety of my endeavours to ascertain the principles of our form of government, as preparatory to a consideration of the supremacy claimed for congress, supposed by the court to justify its decision; and as necessary to enable us to determine, whether the ground it has taken is real or imaginary.