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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 mode and measure of redress.”
What is meant by “ no common judge" ?
The Articles of Confederation provided for a "perpetual union.” The new Constitution simply for a “more perfect union "—that is, a union of consent, not of force. The Articles of Confederation provided that no change should be made in the Confederation " unless such alterations be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State." The new Constitution provides for amendments to it by three-fourths of the legislatures of the States, or by State conventions, in either case to ratify alterations proposed by Congress.
Under the Confederation the Articles precluded “ a common judge.” The new Constitution does not. The framers failed to make provision for an umpire in case of a conflict of States such as occurred in 1861-65.
Should there be an umpire?
The foregoing quoted opinions of Madison, Quincy, and Jefferson, of the Hartford convention and legislature of Massachusetts, show the necessity of a “common judge."
Defect.— Three-fourths of the States alter and amend the Constitution. Why should not threefourths in convention of the whole be a common judge"? It is a curable defect. The longevity of the Union would be indefinitely promoted by such an amendment.
What are the United States governmentally ?
An extension of the governments of the several States. That is all. In December, 1825, only six months before his death, Thomas Jefferson gave, as the result of his great experience, study, and reflection, the following exposition of the origin, limitation, and intent of the government of the United States, which was a protest to the Virginia legislature:
“The States in North America which confederated to establish their independence of the government of Great Britain, of which Virginia was one, became, on that acquisition, free and independent States, and, as such, authorized to constitute governments, each for itself, in such form as it thought best.
“They entered into a compact (which is called the Constitution of the United States of America) by which they agreed to unite in a single government as to their relations with each other, and with foreign nations, and as to certain articles particularly specified. They retained, at the same time, each to itself, the other rights of independent government, comprehending mainly their domestic relations.
“For the administration of their Federal branch, they agreed to appoint, in conjunction, a distinct set of functionaries, legislative, executive, and judiciary, in the manner settled in that compact; while to each severally, and of course, remained its original right of appointing, each for itself, a separate set of functionaries, legislative, executive, and judiciary, also for administering the domestic branch of their respective governments.
“These two sets of officers, each independent of the other, constitute thus a whole government for each State separately; the powers ascribed to the one, as specifically made Federal, exercised over the whole; the residuary powers retained to the other, exercisable exclusively over its particular State, foreign herein, each to the other, as they were before the original compact."
What is to be thought of Jefferson's final words? The foregoing should be closely read by every citizen and student of Constitutional law. It is invaluable also to the foreign diplomatist, who is slow to understand the relations of principal and agent as set forth in the simple compact between the States. It is the clearest and most statesmanlike exposition which language can convey. It is like the Kohinoor, which holds within its translucent self the value of a hundred gems of the mineral garden. It embodies more than Kent and Story knew of the Constitution, and exceeds and satisfies the desires of the warmest decentralist. It is the very crystallization of age, experience, and patriotism. That a
That a man of nearly eighty-three should write such a brief but exhaustive commentary is as wonderful as that the same mind at thirty-three should have penned the Declaration.
Did the late war nationalize the Constitution ?
No. In the Slaughterhouse cases (16 Wall. 82) the effect of the Thirteenth, Fourteenth, and Fifteenth Amendments was fully considered by the Supreme Court, and afterwards thus summarized by Justice Miller in an address before the University of Michigan, June, 1887, as follows:
“With the exception of the specific provisions in the three amendments (13, 14, 15) for the protection of the personal rights of the citizens and people of the United States, and the necessary restrictions upon the power of the States for that purpose, with the additions to the power of the general government to enforce those provisions, no substantial change has been made in the relations of the State governments to the Federal government."
Chief Justice Fuller, for the Supreme Court, held in the New York Electrical Execution case that the Fourteenth Amendment “ did not radically change the whole theory of the relations of the State and Federal governments to each other and of the people to both." This opinion was reaffirmed in the McElvaine case in December, 1891.
Is the Thirteenth Amendment valid?
It is. The ratification of the amendment, December 18, 1865, by the united action of Northern and Southern white legislatures was a renewed affirmation of the compact between the States, and a repudiation of the unconstitutional Emancipation Proclamation of Abraham Lincoln, on January 1, 1863, nearly two years before the conclusion of the war between the States.
It will be seen by the certificate of Secretary Seward that the amendment could not have been ratified but by a union of the States that had recently been at war with each other.