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benefit of the liberty-giving writ. Justice Brewer delivered for the court a decision so remarkable that it may be reversed in the future. It declares that the United States have the right to intervene without regard to the reserved powers of a State and of State laws, and to set aside all obstacles to the transportation of the mails and the conduct of inter-State commerce.
The hundred arms of Briareus were as nothing to the tentacles of the general government. True, said Justice Brewer, the government is one of enumerated powers, but behind every enumeration is absolute sovereignty. It can reach the citizen anywhere, and in the exercise of that sovereignty the intermediate agency of the State must be disregarded.
The “national government can use its authority to call out the army and the militia in every quarter to sustain the Washington rulers." The one conclusive answer to the Brewer opinion is : Delegated power is not sovereign power.
The threat of an august tribunal to use force is not republican save when war darkens the land. “ John Marshall has made his decision,” said President Jackson ; now let him execute it!” It requires the executive department to do that. The people of the States will always be slow to enforce an opinion which is unconstitutional,
And the opinion of Justice Brewer is not constitutional, and will not obtain. Hamilton himself would not advocate such centralization. It is of a piece with the reported centralizing language of a late Attorney-General when he filed in the Supreme Court his petition for a rehearing of the Income Tax decision : "The United States respectfully represents," instead of represent ; "the United States was expected to rely for its customary revenues upon duties, imposts, and excises," instead of were ; and “it [the United States] ought to refund," etc.
What of the future of United States troops ?
When all the Territories are States, this arm of force, borrowed from Europe, should cease. There should always be a navy, but not a regular army.
How often is “the Union” and “this Union" mentioned ?
“The Union," twice. “This Union, three times. The foregoing quoted words are definitions of the purpose of the framers of the Constitution. The States united or formed into "this Union" of sovereigns shall guarantee to every sovereign member of “the Union " what ? A “republican form of government." Mr. Randolph's
“national government" and Hamilton's monarchical ideas were carefully avoided.
How can the Constitution be amended ?
Two-thirds of both houses of Congress can propose amendments, or, on the application of the legislatures of two-thirds of the several States, Congress shall call a convention for proposing amendments. Such amendments must be ratified between three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by Congress. States amend, not individuals ; and for that reason Rhode Island, Delaware, and Nevada are equal to the more populous States of New York, Pennsylvania, and Ohio in the ratification or non-ratification of a proposed amendment.
Men vote as corporators; States vote as sovereign and perpetually living corporations. States severally count the votes of men ; the United States count the votes of the several States.
Why three-fourths of the States ?
Because three-fourths are a working quorum of the United States. Ratification is an act of State legislation. It is the highest exercise of supervising sovereignty.
What can the small States do?
Rhode Island or Delaware can amend the Constitution of the United States as parts of the three-fourths, but the United States have no power to amend the Constitutions of these small States of the Union. The smallest State can vote to unseat a President, but the United States cannot unseat the Governor of the smallest of the States. The reason is that the States are principals.
What of the Bill of Rights ?
The first ten “ Amendments," as they are called, constitute a Bill of Rights, and were passed by the new Congress begun and held at the city of New York on Wednesday, the fourth day of March, 1789. They were ratified between the constitutional number of States, 1791.
The preamble to the joint resolution of Congress says: “The conventions of a number of States having, at the time of the adoption of the Constitution, expressed a desire, in order to prevent misconstruction and abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the government will best insure the beneficent ends of its institution : Resolved," (here follows the joint resolution proposing the
“Amendments" to the legislatures of the several States). The articles so ratified have special application to the reserved or ungranted powers of the States. The Supreme Court of the United States have so decided.
The Eleventh Amendment was proposed at the first session of the third Congress, and ratified between the States in 1798. The Twelfth Amendment was proposed at the eighth Congress, and ratified in 1804.
What are declaratory, and what are restrictive ?
Article 1.—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This, while restricting Congress, is declaratory of the conclusion of Article VI., unamended Constitution, that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”
Congress is also prohibited from “ abridging the freedom of speech or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
What of the Louisiana Lottery decision ?
In the habeas corpus cases of George W. Dupre, of the Daily States of New Orleans, and John