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that the same view has continued to prevail, and that it does so at this time, notwithstanding the eminent exceptions to it.
But it is perfectly consistent with the concession of this power to the Supreme Court, in cases falling within the course of its functions, to maintain that the power has not always been rightly exercised. To say nothing of the period, happily a short one, when judges in thear seats did not abstain from intemperate and party harangues, equally at variance with their dignity, there have been occasional decisions from the bench, which have incurred serious and extensive disapprobation. Still it would seem, that, with but few exceptions, the course of the judiciary has been hitherto sustained by the predominant sense of the nation.
Those who have denied or doubted the supremacy of the judicial power of the United States, and denounce at the same time nullifying power in a state, seem not to have sufficiently adverted to the utter inefficiency of a supremacy in a law of the land, without a supremacy in the exposition and execution of the law; nor to the destruction of all equipoise between the federal government and the state governments, if whilst the functionaries of the federal government are directly or indirectly elected by and responsible to the states, and the functionaries of the states are in their appointment and responsibility wholly independent of the United States, no constitutional control of any sort belonged to the United States, over the states. Under such an organization, it is evident that it would be in the power of the states, individually, to pass unorthorized laws, and to carry them into complete effect, any thing in the constitution and laws of the United States to the contrary notwithstanding. This would be a nullifying power in its plenary character ; and whether it had its final effect, through the legislative, executive, or judiciary organ of the state, would be equally fatal to the constituted relation between the two governments.
Should the provisions of the constitution as here reviewed, be found not to secure the government and rights of the states against usurpation and abuses on the part of the United States, the final resort within the purview of the constitution lies in an amendment of the constitution, according to a process applicable by the states.
And in the event of a failure of every constitutional resort, and an accumulation of the usurpations and abuses, rendering passive obedience and non-resistance a greater evil than resistance and revolution, there can remain but one resort, the last of all—an appeal from the cancelled obligations of the compact, to original rights and the law of self-preservation. This is the ultima ratio under all governments, whether consolidated, confederated, or a compound of both ; and it cannot be doubted that a single member of the union, in the extremity supposed, but in that only, would have a right as an extra and ultra-constitutional right, to make the appeal.
This brings us to the expedient lately advanced, which claims for a single state a right to appeal against an exercise of power by the government of the United States decided by the state to be unconstitutional to the parties to the constitutional compact; the decision of the state to have the effect of nullifying the act of the government of the United States, unless the decis ion of the state be reversed by three-fourth of the parties.
The distinguished names and high authorities which appear to have asserted and given a practical scope to this doctrine, entitle it to a respect which it might be difficult otherwise to feel for it.
If the doctrine were to be understood as requiring the three-fourths of the states to sustain, instead of that proportion to reverse the decision of the appealing state, the decision to be without effect during the appeal, it would be sufficient to remark that this extra-constitutional course might well give way to that marked out by the constitution, which authorizes two-thirds of the states to institute and three-fourths to effectuate an amendment of the constitution, establishing a permanent rule of the highest authority, in place of an irregular precedent of construction only.
But it is understood that the nullifying doctrine imports that the decision
ecessary to demonstrate the inadmissibility of such a doctrine, than that it puts it in the power of the smallest fraction over one-fourth, of the United States, that is, of seven states out of twenty-four, to give the law and even the constitution to seventeen states, each of the seventeeu baving as parties to the constitution, an equal right with each of the seven, to expound it, and to insist on the exposition ? That the seven might, in particular instances be right, and the seventeen wrong, is more than possible. But to establish a positive and permanent rule giving such a power, to such a minority, over such a majority, would overturn the first principle of free government, and in practice necessarily overturn the government itself.
It is to be recollected that the constitution was proposed to the people of the states as a whole, and unanimously adopted by the states as a whole, it being a part of the constitution that not less than three-fourths of the states should be competent to make any alteration in what had been unanimously agreed to. So great is the caution on this point, that in two cases where peculiar interests were at stake, a proportion even of three-fourths is distrusted, and unanimity required to make an alteration.
When the constitution was adopted as a whole, it is certain that there were many parts, which, if separately proposed, would have been promptly rejected. It is far from impossible, that every part of a constitution might be rejected by a majority, and yet taken together as a whole, be unanimously accepted. Free constitutions will rarely if ever be formed, without reciprocal concessions ; without articles conditioned on and balancing each other. Is there a constitution of a single state out of the twenty-four that would bear the experiment of having its component parts submitted to the people and separately decided on?
What the fate of the constitution of the United States would be if a small proportion of the states could expunge parts of it particularly valued by a large majority, can have bui one answer.
The difficulty is not removed by limiting the doctrine to cases of construction. How many cases of that sort, involving cardinal provisions of the con stitution have occurred ? How many now exist? How many may hereaf
ter spring up? How many might be ingeniously created, if entitled to the privilege of a decision in the mode proposed ?
Is it certain that the principle of that mode would not reach further than is contemplated ? If a single state can of right require three-fourths of its co-states to overrule its exposition of the constitution, because that proportion is authorised to amend it, would the plea be less plausible that, as the constitution was unanimously established, it ought to be unanimously expounded ?
The reply to all such suggestions seems to be unavoidable and irresistible ; that the constitution is a compact, that its text is to be expounded according to the provisions for expounding it-making a part of the compact; and that none of the parties can rightfully renounce the expounding provision more than any other part. When such a right accrues, as may accrue, it must grow out of abuses of the compact releasing the sufferers from their fealty
In favor of the nullifying claim for the states, individually, it
appears, as you observe, that the proceedings of the legislature of Virginia, in 98 and '99, against the alien and sedition acts, are much dwelt upon.
It may often happen, as experience proves, that erroneous constructions, not anticipated, may not be sufficiently guarded against, in the language used ; and it is due to the distinguished individuals, who have misconceived the intention of those proceedings, to suppose that the meaning of the legislature, though well comprehended at the time, may not now be obvious to those unacquainted with the contemporary indications and impressions.
But it is believed that by keeping in view the distinction between the governments of the states, and the states in the sense in which they are parties to tho constitution ; between the rights of the parties, in their concurrent and in their individual capacities; between the several modes and objects of interposition against the abuses of power, and especially between interpositions within the purview of the constitution, and interpositions appealing from the constitution to the rights of nature paramount to all constitutions; with an intention, always of explanatory use, to the views and arguments which were combatted, the resolutions of Virginia, as vindicated in the report on them, will be found entitled to an exposition, showing a consistency in their parts, and an inconcistency of the whole with the doctrine under consideration.
That the legislature could not have intended to sanction such a doctrine, is to be inferred from the debates in the house of delegates, and from the address of the two houses to their constituents, on the subject of the resolutions. The tenor of the debates, which were ably conducted, and are understood to have been revised for the press by most, if not all, of the speakers, discloses no reference whatever to a constitutional right in an individual state to arrest by force the operation of a law of the United States.
Concert among the states for redress against the alien and sedition laws, as acts of usurped power, was a leading sentiment, and the attainment of a concert, the immediate object of the course adopted by the legislature, which was that of inviting the other states to concur in declaring the acts to be uncon
stitutional, and to co-operate, by the necessary and proper measures, in maintaining unimpaired the authorities, rights, and liberties reserved to the states respectively, and to the people.'* That by the necessary and proper messures to be concurrently and co-operatively taken, were meant measures known to the constitution, particularly the ordinary control of the people and legislatures of the states, over the government of the United States, cannot be doubted; and the interposition of this control, as the event showed, was equal to the occasion.
It is worthy of remark, and explanatory of the intentions of the legislature, that the words 'not law, but utterly null, void, and of no force or effect, which had followed, in one of the resolutions, the word "unconstitutional, were struck out by common consent. Though the words were in fact synonymous with unconstitutional,' yet to guard against a misunderstanding of this phrase as more than declaratory of opinion, the word "unconstitutional alone was retained, as not liable to that danger.
The published address of the legislature to the people, their constituents, affords another conclusive evidence of its views. The address warns them against the encroaching spirit of the general government, argues the unconstitutionality of the alien and sedition acts, points to other instances in which the constitutional limits had been overleaped; dwells upon the dangerous mode of deriving power by implication ; and in general presses the necessity of watching over the consolidating tendency of federal policy. But nothing is said that can be understood to look to means of maintaining the rights of the states, beyond the regular ones, within the forms of the constitution.
If any further lights on the subject could be needed, a very strong one is reflected in the answers to the resolutions, by the states which prutested against them. The main objection of those, beyond a few general complaints of the inflammatory tendcucy of the resolutions, was directed against the assumed authority of the state legislature to declare a law of the United States unconstitutional, which they pronounced an unwarrantable interference with the exclusive jurisdiction of the Supreme Court of the United States. Had the resolutions been regarded as avowing and maintaining a right, in an individual state, to arrest by force the execution of a law of the United States, it must be presumed that it would have been a conspicuous object of their denunciation.t
JAMES MADISON. Mr. E. EVERETT.
* See the concluding resolution of 1798. † Every one, it is believed, will give full faith and credit to Mr. Madison's sincerity in the opinion, he has expressed ; nor will that faith be weakened by the strong desire he must feel to vindicate the acts of his native state.. Still it appears to me, that if such was the meaning intended by those who drew the resolution, they were very unfortunate in their manner of expression. The resolution, as it appears to me, when considered by itself as well as taken in connexion with what may be called the preamble, admits but one construction, that is,--that the right of the state to judge of the acts of congress, and to interpose its authority, is claimed as a constitutional right,-a right reserved to the state by the constitution, and not what may be called a right of revolution, the natural right of a people to resist the intolerable oppressions of the goveromrot. Such, after all that has been said, was the construction given to the resolution of the time by all the states that replied to it; and' such was the construction of Patrick Henry, as denioastrably appears from the passage cited from his address. Aware, however, as I am of the extraordinary excitement under which that resolution was passed, and the effect intended to be produced by it, I do not hesitate to believe, that little, if any thought was at the time bestowed on the nature and origin of the right claimed, or of the ultimate consequences, to which it might lead.