The preceding answer to the report of the Committee is offered as one proof that tyranny is at hand. If its arguments are sound, the conclusion would certainly follow, except for the uncertainty as to the meaning of the word "tyranny." Had we possessed a precise definition of this single word, or known exactly how the people of the United States understand it, we should have a test for the arguments already advanced, and for those which are to follow. But as we are without these guides for our enquiries, each of us must form his own idea of tyranny, and apply it to the reasoning advanced or to be advanced. It is therefore necessary for me to express my ideas as to what constitutes tyranny, because their correctness or incorrectness, will either sustain or defeat the arguments by which they are enforced.
Theoretical and actual tyranny generally subsist together, but they are not inseparable. Actual liberty may subsist with theoretical tyranny, and actual tyranny with theoretical liberty. These States when British Provinces, were a proof of the first position, and revolutionary France of the second. Liberty and tyranny are neither of them inevitable consequences of any form of government, as both depend, to a great extent, upon its operations, whatever may be its form. All that man can accomplish, is to adopt a form, most likely to produce liberty, and containing the best precautions against the introduction of tyranny. An absolute monarch may occasionally dispense liberty and prosperity to a nation, and a representative government may occasionally dispense fraud and oppression. Such events under both forms of government, may be rare, but history proves that they are possible. If liberty consists in cutting off heads, the United States are as free as any other countries, but not more free than some; if in not transferring property by unnecessary taxation and exclusive privileges, they are less free than when they were provinces, and have nothing to boast of when compared with some other countries. As provinces, both their heads and their property were safe for nearly two centuries; in revolutionary France, with a popular representation, neither heads nor property were safe for two years.
A passion for carnage, is the tyranny of savages. Ambition and avarice are the passions which produce civilized tyranny. A policy for encouraging the latter passions, is like one for training savage nations to become bloodhounds. If ambition is cultivated by feeding it with excessive power, it extorts from industry the fruits of its labour; if avarice is cultivated by feeding it with excessive wealth, it acquires political power to pillage industry also. Enormous political power invariably accumulates enormous wealth, and enormous wealth invariably accumulates enormous political power. Either constitutes a tyranny, because the acquisitions of both are losses of liberty and property to nations.
Tithes to established churches have had these effects, although they are far less powerful engines for transferring property and power to a separate combined interest, than exclusive privileges, because they are limited in amount. They are also less pernicious in suggesting new abuses, because the establishment of one church, does not beget an endless establishment of churches, each endowed with tithes; and less injurious to national manners, because opinion, as in the case of female chastity, imposes a demeanour on the ministers of religion favorable to virtue. All other modes of transferring and accumulating wealth by law, are perpetually growing, and inculcate frauds. If they do not usually cut off heads, they invariably combine in themselves two of the three worst characters of tyranny. They transfer property and nurture vice.
By our political theory, the people are supposed to be the patrons of the government, and not the government the patron of the people. A theoretical reversal of this principle, is a theoretical advance towards tyranny; and a practical reversal of it, either by an assumption of power by a government, to prescribe constitutional regulations to the people, or to use their property in donations to individuals or combinations, is in my view, both theoretical and actual tyranny.
Having thus endeavoured to establish an idea of tyranny, theoretical or actual, let us proceed to enquire whether we are verging towards it in one or both forms. In its latter aspect the inquiry is most important, but this importance reflects great weight upon the enquiry as to its theoretical aspect, because tyranny in form is the first step towards tyranny in substance; and because great reliance is reposed on the argument "that our good theoretical system of government is a sufficient security against actual tyranny," Admitting that the argument has great weight, it becomes more material to preserve a theory which is good, and to prevent it from sliding into a theory which is bad. The moment this takes place, the argument fails, because its basis is gone. It even recoils upon those who urge it; since, if a good theory is a probable security for a free government, its gradual change into a bad one, will probably introduce tyranny.
The theoretical maxims best established by our political principles, is, that the people by special conventions have a right to make or alter their constitutions or forms of government, and that the government itself can do neither. If the entire government, or any department of it, shall exercise either of these powers, the essential principle of theoretical liberty, and all the securities against tyranny deduced from it, is destroyed. This primary maxim ought therefore to be vindicated, if violated in the slightest degree, because its preservation is indispensable for the preservation of liberty. Nobody asserts that either Congress or the Supreme Court, or both united, can make a constitution for the United States or for any one State. It is also conceded, that they cannot separately or in union, alter constitutions already made. Both prohibitions result from our primary maxim; but both are cyphers, if either can be evaded.
An alteration of the Constitution of the United States by Congress and the Supreme Court, would undoubtedly be an evasion of one prohibition. It is founded (to borrow from a former work) in the distinction between political and civil law. The people enact the former, legislatures the latter, and the judges act upon what legislatures enact. Political law is intended to restrain governments; civil, to restrain individuals. By adhering to this distinction, we are enabled to detect the attempts of governments to destroy the first principle of theoretical liberty, not less subversive of it, than if the people should undertake to make civil laws.
But the difficulty is to distinguish between civil laws and judgments, and political laws and judgments. This difficulty was foreseen and provided for by our system of government, by establishing divisions and limitations of power, as the only means of establishing theoretical liberty. For that purpose the divisions and limitations of power between the Federal and State governments were established. That such a constitutional division has been made, is not denied; but if no means for its preservation have been provided; if one of the departments or copartners has a power to usurp rights allotted to another; it is obvious, that this next most important principle of our theoretical liberty, is wholly nugatory and ineffectual. It would be perfectly evident that no security was obtained for it by divisions and limitations of power, if Congress or the Supreme Court, or both, could exclusively determine, whether their laws or judgments did or did not destroy the two principles of division and limitation. To say that these principles are left to be enforced by the people only, that they alone can keep political departments within their spheres, and that these departments cannot check each other, amounts to an assertion, that our theory for the preservation of liberty is grossly defective; far more so than the English; as not containing any internal means for self preservation. The argument, if sound, defeats all the checks, limitations, and divisions of power, to be found in our theoretical structures for the preservation of liberty. If the State governments should violate the limited theoretical powers, given to the Federal government, or if the Federal government should violate those reserved to the States, the argument asserts that our theory contains no internal provision against either violation, and that there is no remedy save that of going back to the people for a new theory. The consequence of this doctrine is, that no theory could be devised, capable of self-execution; and that every check which could be contrived for the preservation of liberty in current affairs of government, would be useless and inoperative; or only operative in requiring perpetual appeals to the people upon every collision of opinions between political departments. If either the legislative, executive, or judicial departments should usurp powers, one from another, the injured party would possess neither a right, nor the means of self-defence; and in all such cases, this theoretical imperfection would make it necessary to consider society as dissolved, and to go back to the people for a new one. To me however it seems that such collisions have been foreseen and provided for by our constitution, as perfectly as the case would admit of, by its checks and divisions of power. Far from designing to establish an imperfection so glaring, as that of perpetual appeals to the people upon every collision of opinions between departments, it has invested each department or division of power with the means of self-defence. If such was the design of the constitution, in order to secure theoretical liberty—by destroying these means, the theory itself is destroyed; and if the theory established by the people for the preservation of their liberties is destroyed, it can be no longer capable of effecting the intended end.
If the State and Federal governments are political departments, considered theoretically, as important for the preservation of liberty, as the legislative, executive, and judicial departments of these same governments, it cannot be even imagined, that a limb of either was intended to be invested with a power of overturning the entire structure of the other. It would be like telling a stranger, that the chamber of the Supreme Court was the whole Capitol, because the architect had covertly invested that chamber, with a power of swallowing up all the rest. Nor would this new notion in the art of building be much mended, by supposing that architect had, by some magical contrivance, invested the great Capitol at Washington, with a power of swallowing all the little Capitols of the States.
It is said, however, that the political architecture of the Federal constitution, must be considered as having copied such imaginary models, because it is extremely difficult to distinguish between laws and judgments which will change our political theory, and those made in subservience to it; and that it would be also highly inconvenient to be without a tribunal invested with a power of deciding whether laws or judgments were constitutional or not. Both the difficulty and the inconvenience is admitted. This very difficulty of distinguishing between laws and judgments for dispensing justice, or for destroying constitutions and liberty, demonstrated the magnitude of the danger, and the necessity for a remedy able to withstand it; and the inconvenience of having no such remedy was too obvious to be overlooked. It was this very danger and inconvenience which suggested divisions of power and distinct political departments, as independent tribunals for arresting that species of laws and judgments intended to work out a political revolution. As the Senate and House of Representatives are each an independent tribunal to judge of its own constitutional powers, so the State and Federal governments are independent tribunals to judge of their respective constitutional powers. The same principle is applicable to the legislative, executive, and judicial departments, both State and Federal. It never could have been forgotten or disapproved of in the formation of the State and Federal departments. Being an essential principle for preserving theoretical liberty, used by the Federal constitution, it never could have designed to destroy it, by investing five or six men, installed for life, with a power of regulating the constitutional rights of all political departments, or at least of the most important. Suppose the Supreme Court should attempt to settle collisions of opinion between the Senate and the House of Representatives: are not the political rights of all the States as important for the preservation of theoretical liberty, as those of one of these houses? It was foreseen by the framers of the constitution, that the difficulty of distinguishing between political laws and judgments, and those intended for the distribution of civil justice, would not be diminished by the supremacy of a concentrated power, and that it required the acuteness of collateral powers to detect and control it. The remedy provided for this difficulty, is the only remedy hitherto discovered; and has been interwoven in some shape with the texture or forms of all governments, pretending to a construction at all calculated for the preservation of liberty. It consists of a mutual veto. All our checks, balances, and divisions of power, are founded in the difference between a negative and affirmative; and the only practicable mode by which one department of any form of government, can be prevented from usurping the rights of another, is that of investing each with a negative able to stop such usurpations. The great difference between a negative and an affirmative power is, that one can only prohibit, whilst the other can create; and this difference has settled the judgment of the soundest political writers in estimating the inconveniences resulting from a negative power, able only to prevent laws from being enacted or having effect; or from an affirmative power able to enact and enforce laws, contrary to the theory established for the preservation of liberty, without being subjected to any negative check. All such writers have united in the opinion, although these negative checks may produce occasional inconveniences, that an affirmative creating power without them, will produce inconveniences much greater and more lasting. No form of government has ever pretended to any merit, or been allowed to possess any recommendation, except what has been derived from negative checks. The Roman tribunitial veto, however imperfect as a novel experiment, was considered by the people as the best safeguard of their rights; but by a senate installed for life, as highly inconvenient. The veto of the English king is the security for his prerogatives. The mutual negative powers of the two legislative chambers, is the security for their respective rights. An executive negative preserves executive power. And the negative pronounced by the judges on unconstitutional laws, preserves the judicial department as established by the constitution. In all these cases it is well established, and universally admitted, that the rights of a political department cannot be preserved, unless it is invested with a defensive negative power; and theoretical rights, unattended with the only means by which they can be preserved, are considered as equivalent to no rights at all.
Can it then be imagined that the States, when forming a constitution, and reserving a considerable share of political power to themselves, could have intended that this reservation should be merely didactick, and utterly devoid of the only means by which it could be preserved? Such a doctrine amounts to the insertion of the following article in the constitution: "Congress shall have power, with the assent of the Supreme Court, to exercise or usurp, and to prohibit the States from exercising, any or all of the powers reserved to the States, whenever they shall deem it convenient, or for the general welfare." I cannot perceive that a negative, able to prevent such aggressions, which may alter the theory of our government, is less necessary for the preservation of liberty, if the integrity of the State rights is necessary for that purpose, than the tribunitial, regal, executive, senatorial, representative, and judicial negatives. All these negatives are considered as necessary to preserve rights and powers, constituting portions of sundry theories contrived for the purpose of securing civil liberty, and unite to prove, that without this practical mode of defence, theoretical reserved rights and a division of powers, are insufficient for that end. It is equally inconceivable to me, that our State governments will be more corrupt than tribunes, kings, presidents, senates, representatives, and judges, and are therefore less worthy of being entrusted with a negative power for self-preservation. If such was the opinion of the framers of the constitution, why were they entrusted with so much power; but if they were thought trust-worthy, as to the powers given and reserved to them, could they have been considered as unworthy of being trusted also with the same means of preserving these powers, conferred on all other political departments? It might even be contended that they are less likely to corrupt the principles of the constitution than the Federal government itself, and that therefore a negative power in their hands for self-preservation, would cause fewer inconveniences, than an affirmative power in the Federal power to change the constitution, unsubjected to any State check. But whether the State political departments are necessary or unnecessary, convenient or inconvenient, good or bad, they have been established, however erroneously, upon a supposition that they were really very important members of our political theory for the preservation of liberty; and, therefore, whilst they last, we ought to reason upon the supposition that they are so. We must then conclude, that if a power to preserve the rights conferred on them for this end, must attend the rights, or they cannot effect the end, the want of such a power, or whatever may render them dependent on another constituent of the same theory, must be a movement towards theoretical tyranny.
The answers to this reasoning which I recollect, are, first, that an express power is given to the legislative and executive departments to control each other, but not to the Federal and State governments. The reply seems easy and conclusive. The mutual negatives between our two legislative chambers, and that given to the President, are expressed, because they do not result, exclusively, from the inherent right of self-preservation common to all collateral political departments, but from an intention to organize the legislative formulary, to prevent the passage of inexpedient laws. But no form in passing them was intended to make unconstitutional laws obligatory, and no reason existed, for declaring that these negatives were given to arrest such laws, because they would be as void after they were passed as before. Such a declaration would have admitted, that if neither house of Congress, nor the President, stopped a law or bill by a veto, it was to be considered as constitutional. No express negative upon unconstitutional laws is given to judges; yet they claim and exercise a negative over them. Of the same nature is the negative power of the States. Being at least as much political departments as the courts of justice, they derive from that character the same power to reject unconstitutional laws, as the judges do from theirs. So far this right of rejection is equal, but in other views, that of the States is infinitely the strongest. As contracting parties to the Union, this right is an appendage of that character. If they are not to be so considered, it goes to them as representatives of the people, because it is an appendage of the political powers with which they are invested by the people. It is absurd to allow that they were entrusted by the constitution with these powers, and yet prohibited from looking themselves into the constitution, that they might exercise them faithfully. The States possessed political powers antecedent to the constitution, as is acknowledged by their reservation. These State political powers previously possessed, never surrendered and expressly retained, inherently comprised a moral right of self-defence against every species of aggression; and the constitution, instead of saying that they may be taken away by the Federal government, expressly declares that they shall not; that they are without the compass of that instrument, and not embraced by it at all. Here then is a positive constitutional veto, clearly precluding both Congress and the federal court from touching the reserved State rights. Is this veto to be considered as a mere didactick lecture, or was the moral right of defending the powers, reserved with the powers themselves, so as to convey positively to the States the right of resisting unconstitutional laws for their own preservation? Thus the State political departments appear to have a much sounder right to disobey and resist unconstitutional laws, than even the judicial department. That State reserved political powers exist, is not denied, but it is contended that their moral right of self-defence is constructively taken away because it is inconvenient to the Federal government that it should exist, against which the reservation was directed. If that government may suppress one part of the constitution, because it is inconvenient, it may apply the same reason to any part it pleases. The Roman consuls and senators, when committed to prison by the tribunes, for resisting their right of veto, doubtless thought it very inconvenient that these tribunes should use the means necessary to sustain the right. When the inherent moral right of self-defence as to the reserved powers, is invaded, and the States are told that it will be inconvenient if they resist the invasion, they have undoubtedly to elect between the alleged inconvenience and the loss of the right. The State governments are in fact tribunes of the people, entrusted with rights bestowed for the preservation of their liberty, and if they surrender these rights, by surrendering the power of defending them, they will be as faithful to the people, as the Roman tribunes would have been had they surrendered their veto to the consuls and senate, or to the praetors. But what will be said to the silence of the constitution, as to any right in the Federal government to resist unconstitutional State laws? Certainly, that the donation of federal powers by the people, carried with it the indissoluble moral appendage of a right to resist aggressions upon those powers. Another donation of powers was made to the State governments by the same donors. How came these to be deprived of the same appendage? The people gave to each of these governments a fine horse to parade on: but it is said that the tail of the horse given to the State governments did not pass, and that the Federal government, as representing the people, have therefore a right to cut it off. If so, the State governments will soon be ashamed of their horse.
But it is answered, secondly, that an inherent right of self-defence, is an appendage neither of the Federal, nor of State governments, and that the Federal court is the guardian of the rights of both governments, with a power to cut off the tails of both their horses; that is, that the people divided certain powers between these governments, but withheld from both a right to defend its own allotment, and invested the Federal court with a power of making new divisions from time to time. This tremendous power is not expressly given to the court by the constitution, and is claimed by a string of inferences. If they can be made to reach such a power as this, it is surely time to enquire where they will stop. I have never heard before so novel a political doctrine, as that courts of justice are instituted to dispense political law to political departments. It is to be found in no writer; it has never been a component part of any government; and it is highly probable when the constitution was made, that not a single person in the United States contemplated the idea, of its having empowered the Federal Supreme Court to divide political powers between the Federal and State governments, just as it does money between plaintiff and defendant. Why should truth be suppressed? There is probably not a man in Congress who would subscribe to this doctrine, and who would not indignantly resist the least effort of the court to transfer Federal powers to State governments. Is it the power of impeachment which causes Congress so patiently to receive State powers through the same channel? The question is, whether the general idea attached to judicial power is, that its office is to distribute justice between individuals; or, whether it has been considered as extending to a right of distributing powers between political departments. It is contended that the great latter power, never before thought of by any political theory, has been tacitly conveyed by the constitution to the Supreme Court without any provision against its abuse. The novelty of the doctrine, the silence of the constitution, and the absence of any effectual check upon a power so enormous, are strong proofs, that the rights of both Federal and State governments, were not intended to be surrendered to six men, so as to make them administrators of powers to political departments, and guardians of the guardians of liberty; as well as of justice to individuals. Had the constitution considered the Supreme Court, as a political supervisor of departments entrusted with the preservation of liberty, it would have devised some security for enabling them to discharge a trust so important, in case the court should have interrupted their efforts for effecting the great end of society. None was devised, because the universal idea of judicial power confined its operation to individuals, and had never extended it to political departments. The inherent right of self-preservation was considered as attached to the State and Federal departments, and of course there was no reason for prescribing the mode by which it should be defended against judicial aggression, especially as no power was given to the court to aggress at all. There is no difficulty in distinguishing the power of the court to disobey unconstitutional laws, from a power to govern political departments. It is comprised in the difference between civil and political law, and the difficulty is gotten over, if it is the office of the court to dispense justice to individuals, and not to dispense powers to political departments. Whenever the constitution operates upon collisions between individuals, it is to be construed by the court, but when it operates upon collisions between political departments, it is not to be construed by the court, because the court has a power to settle the collisions of individuals, but no power to settle those of political departments. Suppose a collision of opinion to happen between the Senate and House of Representatives, or between Congress and the treaty-making power; could the court settle these collisions, or must they be settled by these departments themselves? Suppose Congress by a law should dissolve the State governments, or consolidate two States into one, and enforce the law by an army: could the court settle these collisions? An utter incompetency in the court to settle a multitude of collisions between political departments, is a proof that they were not empowered to settle any. The argument of inconvenience is as strong in those cases of collision which they cannot reach, as in those which they can; and had their supervisorship been contemplated as a remedy for such collisions, a mode of applying it to all would have been devised. Can the State governments defend themselves against a usurpation of those rights by the federal court, which the federal court is unable to preserve, but not against a gradual absorption of them, which the court is able to accelerate? If they may constitutionally defend themselves in the first catalogue of cases, it must be in virtue of an inherent right of self preservation. Where is the distinction to be found by which they are entitled to apply this right to cases of the first character, but not to those of the second? Good theories for the preservation of liberty are most liable to be destroyed by piecemeal; bad ones, by a single blow, and therefore as ours is exposed to most danger from the detail mode of destruction, it is more important to the States to possess the right of self-preservation against the insidious enemy, than against one which dares not even show his face.
Let us apply the right of mutual veto to some of the constitutional questions which have occurred, in order to estimate the inconveniences attending its existence or abolition. In the bank case, which is most detrimental to our theory for the preservation of liberty—that a State should negative the establishment of an exclusive privilege within its territory, or that Congress should acquire an affirmative power of abolishing the State right of taxation? The State veto only prevents the introduction of a new political machine; the affirmative power impairs, and is a precedent for destroying a right given to the States, without which they cannot exist. In the lottery case, the State veto only prohibits an immoral practice; but the extension of an absolute power over ten miles square, to the whole United States, abolishes the distinction between limitation and reservation. On which side do the inconveniences in these cases preponderate? In both, affirmative federal powers are conferred by the court, containing political innovations radically assailing the powers reserved to the States, considered as essential for the preservation of liberty whereas their prohibition by the State veto, leaves our political theory unaltered. These two cases themselves prove, that there is no danger in a mutual State and Federal veto. Would our liberty be lost by suppressing banks and lotteries, and are the States to be considered as dangerous usurpers for resisting either? The cases, indeed, discover a difference of opinion between departments as to the regimen necessary for its preservation, but surely the States are not so egregiously in the wrong, that they ought to be deprived of their constitutional right of self-defence.
A State attempt to destroy a Federal tax, is equivalent to a Federal attempt to destroy a State tax. A mutual veto can defeat both attempts. The Federal tax law may be executed by the Federal courts, and the State tax law by the State courts. As the Federal courts would disregard the interposition of the State courts, to prevent the exercise of a right conferred upon the Federal political department to tax, so the State courts ought to disregard the interposition of the Federal court to prevent the exercise of the right to tax reserved to the State departments; both courts acting upon the same principle of self-preservation, because the constitution has not extended it to one department and withheld it from the other. There is no uninferred Federal power that I recollect, except one, capable of being interrupted by the State resistance to Federal laws, upon the ground of unconstitutionality; because the Federal government possesses internally a power to execute all laws founded upon powers expressed. If a State can prevent by exerting any of its reserved powers, the execution of a Federal law, it is a presumptive proof that it is unconstitutional. The power of exercising expressed Federal rights, is a security for the Federal government; but a veto against unconstitutional Federal laws impeding the exercise of State rights, must belong to the State governments, or the exercise of State rights must depend on the will of the Federal government. A correspondent power of exercising their respective rights must be mutual to the two governments, because if either should exclusively possess such a power, it will swallow up the other.
But may not the States pass unconstitutional laws? In answer to this question, I shall select the chief case of their having done so. The stay-laws as they are called, are admitted to be of this character, and they serve to illustrate the provision made by the constitution, against State unconstitutional laws. The first and chief provision, is the internal capacity of the Federal government to carry into execution all the Federal powers expressed. The second consists in its jurisdiction between citizens of different States, given for the purpose of preserving union between the States. But the expression of this jurisdiction excludes a jurisdiction over the internal operation of local laws between citizens of the same State, and therefore these stay-laws do not in that case fall under the jurisdiction of the Federal courts. How much stronger is the case of a State tax law? The third provision against unconstitutional State laws is the oath taken by State judges to observe the Federal constitution, by which they are entitled to determine upon the constitutionality of State laws. A fourth provision is, that a State government cannot pass unconstitutional laws, which will operate externally, but the Federal government can pass unconstitutional laws operating upon all the States, or upon a single State; and if there exists no remedy against them but an appeal to the joint supremacy by which they are made and executed, a consolidated government is their inevitable effect. The excepted case is that of the Massachusetts militia during the late war. This case I suppose to have been an executive act. As checks upon this violation of the constitution, if the Federal power over the militia is insufficient to meet it, which I do not admit, the Federal government can both refuse to pay misemployed militia, and also raise armies. But this is a case which demonstrates the incapacity of the Supreme Court to supervise the unconstitutional acts of either the Federal or State governments. They could not make the militia march. And an incapacity to restrain the unconstitutional acts of these departments, which might be carried to a great extent, was, therefore never thought of as the guardian of the constitution.
The mutual veto of the Federal and State governments, or the mutual inherent rights of self-preservation, is rendered infinitely more safe, and less inconvenient or dangerous, than the exclusive veto claimed by the court, by the check of election. This is a powerful control upon unconstitutional laws passed by either, and may be applied against an improper resistance by the people of a State, without dissolving society and appealing to a convention; whereas no such control exists to prevent the Supreme Court from altering the constitutional division of political power. Can there be the least difficulty in deciding between the safety, inconvenience, and danger, attached to the mutual vetos of the State and Federal governments, when both are frequently exposed to the restraint of public opinion; or to the judicial veto, exposed to no such restraint? The Roman tribunitial veto was exposed to the same popular control, and thus only rendered useful towards preserving the liberty of the people. The veto of the English king is liable to no such control, and therefore it is used, not to advance liberty, but to gain and preserve power. The veto upon State laws assumed by the Court, is of the latter character. It is under no responsibility to foster and defend liberty, and may, without control, disorder and subvert the primary division of power, established to preserve it. Departments for its preservation, over which they retained a control, were confided in by the people; but the Court step into the place of the people, substitute themselves as controllers of these departments, and make them responsible to a tribunal by which they are not elected. It was somewhat erroneous to say, that the assumed judicial veto was of the same character with the regal. It is in fact infinitely more dangerous, because judgments are affirmative as well as negative. They can make as well as abrogate laws. Their capacity to do both displays forcibly the difference between civil and political laws, and discriminates very clearly one from the other in the hands of a few men not responsible to the people. If the Supreme Court should misconstrue a civil law, or make a new one, the legislative power is able to correct the error; but if they make or misconstrue a political or constitutional law, the injured legislature has no power of correction. Hence arises the necessity of a mutual veto in the State and Federal governments, since otherwise the Supreme Court would be able to alter both State and Federal constitutions, transfer the allegiance of representatives from their constituents to themselves, and deprive the people of the most valuable jewel attached to election, namely, its power to preserve their constitutions.
The only argument urged to prove that a veto in the Supreme Court, is better than a mutual right of self-preservation in the Federal and State governments, responsible to the people for its proper exercise, is the liability of the judges to be impeached by the House of Representatives, and removed by the Senate of the United States. The State departments can neither impeach the judges, nor bring them even to trial, for any violations of State rights, however flagrant; whilst the Federal department can do both, and also dismiss them for any violations of Federal rights, however trifling. These two are the chief classes of powers which can come into collision, and these judges are said to be safer guardians of them, or more impartial arbitrators, than a mutual right of self-preservation under the control of the people. I deny that there is a single man in the world, who can possibly believe this to be true, or who would risk his tooth-picker upon such jurisprudence. Let us make a case of it. A and B are at law with each other. A has six men employed by great salaries to do his business, whom he can accuse himself, try himself, condemn himself, and dismiss himself. He proposes to B these very men as arbitrators between them. There is not a B in the whole world who would not laugh at the proposal. Gentlemen lawyers, is there one of you who would advise a client to listen for a moment to it? The check of impeachment, as it is called, is a threat to impartiality, and an admonition against justice, in deciding Federal and States collisions. It is oftener used as a party instrument, than to secure judicial independence, even in cases where neither the accusers nor triers are parties in the controversy; and is oftener an engine of persecution, than an encouragement of integrity. What then is its security to one rival for power, when wielded by his adversary? If not a single man in his senses, not a single B can be found, who would submit his property to such arbitrators, can we make out even a possible case to sustain this doctrine, by supposing whole States to be Bs, so utterly ignorant of man and his passions, and so infatuated by the word "impeachment,"as to have created A's officers for arbitrators of collisions foreseen and feared with this same A? Would they not have retained some choice in the appointment, the accusation, or the trial of arbitrators, able to deprive them of their whole estate? Would they not have secured for themselves at least a trial per medietatem lingua? Could Massachusetts have forgotten that she had rejected as an insult upon her understanding, the idea of confiding in judges paid by the king; and all the other States, their concurrence in the same opinion? Considering the extreme jealousy of the States lest the Federal Government should encroach upon the reserved rights, they certainly never meant to say, by not saying "let Congress and the Federal Court cut and carve among these rights at their pleasure." We must either charge them with an absurdity so egregious, or believe that they meant to retain an inherent power of self-preservation. If this was their opinion when they established the constitution, no verbal inferences, however plausible, can accord with its intention; and any construction at enmity with the intention of the contract, is unexceptionably erroneous. If it was not the intention of the States, or of the people, to invest the Supreme Court with a power to deprive the former of their powers, and the latter of their elective influence; in fact, to model society according to its own pleasure, without being under responsibility to the people or to the States, the question is decided; and, unless this was not their intention, we must conclude, that language is unable to express the design of contracts.
The impeachment of Judge Chase demonstrated the inefficacy of that mode for preventing unconstitutional Federal laws, by which State rights are invaded. The opinion, that the sedition law was unconstitutional was so general, as to effect a revolution of political parties. Having changed the majority in the House of Representatives, it is highly probable that the new majority concurred in opinion with the people, when it impeached Judge Chase; but a love of power was too strong even for party spirit; and therefore his having executed an unconstitutional law and fined and imprisoned men without law (for it is admitted that unconstitutional laws are not laws) was not even made an article of his impeachment. This omission was a tacit acknowledgment that the sedition law was constitutional, and will be quoted to prove it, whenever a party may have occasion for another. Thus the event has already confirmed what the States must have foreseen, namely, that no Federal judge would ever be impeached, much less removed, for executing an unconstitutional Federal law; and experience justifies what the theory plainly predicts, that impeachments of Federal judges, far from being a check upon such laws, are the most effectual means for sustaining them. It is therefore impossible to imagine that the States ever intended to surrender their inherent right of self-defence, for the sake of holding their powers by tenure of the impeaching power, exclusively given to Congress. The fact has already fully disclosed the nature of such a tenure. The court has nearly established the doctrine, that it is almost impossible for Congress to pass an unconstitutional law; and positively asserted, that no law of a State, which contravenes a law of Congress, can be constitutional.
We may obtain a correct idea of the piecemeal mode of destroying theoretical liberty, by supposing that the first Congress under the present constitution, had published a declaration in the following words:
Congress has power to assume the State debts; to confer on bankers a vast annual income by a monopoly of currency, to endow capitalists with an equal bounty by a monopoly of manufacturers; to pass alien and sedition laws; to prohibit negro slavery; to make roads and canals; to prohibit the importation of all foreign commodities; to provide for the poor by pensions; to try all individual claims for public money; to give public money gratuitously, and as a sinecure, to whomsoever it pleases, without limitation; to model State constitutions; to give away the public lands; and to legislate internally without restriction, in virtue of its power to legislate for ten miles square. No State can pass any law which shall contravene a law of Congress. No State possesses a right of self-defence against encroachments of the Federal government. The supreme Federal court can abrogate any State law, and reverse any State judgments. It can regulate and alter the division of powers between the State and Federal governments: and it can constitutionally execute unconstitutional Federal laws by which State rights are infringed.
How would such a declaration of power have been received, when the principles which had dictated our theoretical system for the preservation of liberty, were fresh? Should we not have heard the universal cry of "consolidation and tyranny." Because it is safer to pull down a fortress by piecemeal than to blow it up once, lest the fragments of the explosion should knock in the head some of the engineers, it does not follow that the fortress will not be destroyed by the first mode. Had all these successive blows been thus condensed into one, would it not have been considered as an attempt to blow up at once, our theoretical fortress for the preservation of liberty, and have produced a general and animated resistance; or should we have submissively petitioned the Supreme Court to protect us against the threatened calamity? Yet all these blows have been successively given to our theory; proving that the gradual and piecemeal mode of destroying it, and for substituting a tyranny in its place, is the most dangerous because it is the least alarming.
It is not expressly asserted, that the Federal court may constitutionally execute unconstitutional Federal laws, by which State rights are infringed and only that should it do so, the States have no remedy, and must surrender their rights. But is not the latter power perfectly equivalent to the other? Would not the court act unconstitutionally, by executing an unconstitutional law of Congress? Have the States no remedy in such a case, whatever of their rights such a law might take away; and must these political departments, or sovereign States, or whatever may be their title, tamely surrender the powers confided to them by the people for the benefit of the people, and submissively betray the sacred trust? Even the individual right of suffrage, being a political right, is not left to be extended or contracted by the civil law courts; but as a subject too high for their jurisdiction, is exclusively entrusted to popular representatives. How then can it be possible to suppose, that the same system, so wary in withholding this political right of an individual from the jurisdiction of the Supreme Court, could have intended to have invested it with a jurisdiction over all the political rights of the States, and incidentally to weaken extremely the right of election itself?
The insufficiency of the constructive judicial power to regulate political departments, may be further demonstrated, by considering to what extent it can operate upon the Federal department. Were the powers of this department made subservient to the jurisdiction of these six men? If not, the check would be insufficient. Are some of the Federal powers subservient to this jurisdiction and others not? Then the unsubservient may be used by the Federal department to invade the powers of the State department. Suppose the Federal department should use its military power against the State department; it is obvious that the Supreme Court could not prevent the aggression. Such would be the case also, if the State department should assail the rights of the Federal department by its military power. In both cases, the judicial power would be unable to preserve the rights of the department attacked. Whence does this imbecility arise? From its civil nature; from its action having been limited to private cases; from its incapacity to govern these political departments. Could the constitution have relied upon this imbecility for their preservation? Why has it divided military power between them, except to confer on both the means for exercising the mutual right of self-preservation? In establishing this mutual check, it recognizes the existence of the right. Powers must be equivalent, to be able to check each other. If the judicial power is unable to govern these two political departments; or if it can govern one and not the other; it could not have been contemplated as the means for preserving the powers of both. The constitution, when it bestowed these powers, must have contemplated some better means for their preservation. What these can be, except the mutual rights of self-preservation and self-defence, is not discernible. If one of them does not possess these rights, neither can the other; and by establishing their political subordination to the court, we should exhibit to the world the political phenomenon of two governments, neither possessing a right of self-preservation, and both subjected to six men, not elected by the people, but nominated by one man. Had the Supreme Court consisted of one man, he would have been a very powerful monarch, invested with the right of making, or which nearly amounts to the same thing, of modeling constitutions, claimed and exercised by a few of the monarchs of Europe. The court therefore resembles a holy alliance of six monarchs.
The Amphictyonick council of Greece, created by a union of seven states, was instituted for the purpose of preserving peace, and providing for the general defence; and not to model the internal governments of the States forming the Union, or to meddle with their local laws. It never claimed a right to do either, because it was composed of representatives from these United States. If it had been made subordinate to the Areopagus of Athens, one of the united and rival states, we should have had a precedent for that species of security for state rights, now contended for. This supervising tribunal constituted by one rival state, would have been equivalent to our six judges, appointed and removable by a rival department; except that an Amphictyonick council would have been selected from all the confederated states, whereas our supreme judges may be selected from one, and must be selected from a minority of the United States. Their removal by the Athenian department, would have rendered them subservient to the ambition of that department, when directed against its rivals. Such a Grecian-federal theory, for the preservation of the liberty of the confederates, would have been sufficiently unpromising, but we are endeavoring to make ours more so. It is said that our federal theory bestows supreme power on six men, not one of whom are appointed by, or representatives of any of the confederates. Congress are our Amphictyonick council; but this doctrine places over it a superior council, constituted as the Grecian council would have been, had it been appointed and removable by the Athenians alone, able, it is said, to govern both the confederates themselves, and their representatives. The Grecian Amphictyonick council however, strongly resembled our judicial political council, in being unable to prevent, though it could easily excite wars between the confederated States.
The tribunitial veto at Rome was sometimes entrusted to six men; but this precedent does not sustain our novel doctrine, because the tribunes were annually elected by the people. Had the senate indeed appointed and removed these tribunes to prevent senatorial aggressions upon the rights and liberties of the people, and had such a theory prevented the senate from committing them, it would have forcibly supported the project of preventing the Federal political department from trespassing on the State political department, by the newly invented veto of judicial tribunes, appointed by, and responsible to, the Federal department.
We may, however, very nearly find a precedent for our judicial negative, in the imperial theoretical system discovered by Bonaparte for the preservation of liberty.
By reserving to himself the exclusive right of proposing laws, he obtained a previous veto upon every effort by the representatives of the people, for the good of the people. But his veto was not quite as objectionable as the judicial. He could prevent, but not create unconstitutional laws; the court can establish or even create them by construction. His was only a negative, theirs is a power affirmative as well as negative. Bonaparte's legislative power had a negative upon the laws proposed by him: Neither the State legislatures nor State courts are supposed to have any negative upon unconstitutional laws established or created by the court. Bonaparte prohibited debates; the Supreme Court only render the deliberations of the State legislatures and courts, idle and useless. The veto of the English king can strangle usurpations in their birth: the veto of the court cannot prevent their conception and delivery, but it can give them life and power. The vetoes of Bonaparte, the English king, and the Supreme Court, are alike in being exercised by characters, neither representing, nor responsible to the people. But they are unlike in a very material future. Bonaparte was not the creature of the French senate and tribunate. Instead of his being their instrument, they were his instruments. They could neither appoint, impeach, nor remove an emperor, who should oppose their love of power. The English king, in like manner, is independent of the lords and commons, and these imperial or monarchical vetoes being both free, might dare to do right. The Supreme Court under the influence of the Federal government, is neither independent nor free; and it cannot dare to do right for any length of time, or it will display a degree of boldness and disinterestedness, never yet practised by any body of men exposed to an equal influence. It will therefore be easier for the Federal government to use it as a sham court for advancing its power, than it was for Bonaparte to use his senate and tribunes as a sham legislature for feeding his ambition.
The enormities of the French revolution planted a diffidence in republican theories, which has spread its branches to the United States, and is causing us gradually to cheat ourselves of our own principles. It having been imbibed by many honest, wise, and good men, frauds joyfully unite themselves with the prejudices it inspires, in order to make use of virtue and talents to gratify vices. Thus it has happened that the political provision, called a negative or veto, has been perverted from the original purpose of preserving, to that of destroying, liberty. Tyranny is wonderfully acute in transferring to itself, the weapons of liberty. It has converted charters invented for her use, into pick-pockets for robbing her. It has used even representation to lash her. And we are now sharpening a new instrument, which can only be described by contradictions, namely, an affirmative negative, to stab her outright. Bonaparte first discovered that his previous veto, united with a subservient legislature, was a good instrument for this purpose; and we have discovered that an affirmative negative power, united with a subservient court, is a better. There is something in human nature, wonderfully fond of new inventions, and extremely desirous of improving them, if they bring us either power or money.
The political principle, called a veto or negative, has hitherto been applied to collateral political departments, and wherever it has been given to one, it has been balanced or checked by the same responsive or equivalent power, bestowed on another. In England, the king's veto upon laws is balanced by that of the lords and commons. At Rome, neither the senate nor tribunes could pass a law, against the consent of the other political department; but the judges had no veto restricting the powers of the senate, the tribunes, the tribes, or the centuries, because they did not possess the character of a collateral political department. Both in the Federal and State governments the veto is responsive between departments necessary to concur in legislation. But I recollect no case of investing any man, or body of men, whose concurrence to an act is not necessary, with a veto against that act. The concurrence of the Supreme Court is not necessary either to Federal or State legislation; and therefore, they are not susceptible of the equivalence and reciprocity attached to the political principle of a veto, and of course cannot exercise it, for want of the essential principle, by which it is constituted. The concurrence of the Federal government in making Federal laws, and of the State governments in making State laws, being necessary; the principle of vetos is applicable to both, lest one department should make laws for the other; it is equivalent, reciprocal, and necessary for the preservation of their respective rights: whereas the Supreme Court being no party to the legislative acts of either, have no rights to defend, and no equivalence or reciprocity of restraint, to bestow on either of these governments, to balance an usurped veto upon the political acts of either.
There was, indeed, a time in England, whilst the judges were removable by the king, when he used them so effectually to circumscribe the rights of the other political departments, and enlarge his own, as to produce a long and bloody civil war. Our ancestors, taught by severe experience, that it was a very sufficient mode for introducing tyranny, suppressed it. Are we destined to make the same discovery at the same expense? Their experience plainly informs us, that a judicial power in the hands of one political department, may be effectually used to destroy its rivals, expunge checks, consolidate political powers, and introduce tyranny. It completely exhibits the difference between fairly balanced reciprocal vetoes, and enlisting under the banner of one, a subservient judicial power, so as to destroy the balance. The balanced vetoes keep out usurpations; a destruction of the balance by the judicial ally, is the very mode for letting them in. The first sustains the rights of both the political departments; the second destroys those of one. The first prevents; the second excites civil wars. The king, lords, and commons, now very easily adjust their political powers by equivalent and reciprocal vetoes, and if they cannot agree, the measure dies in peace; but when the judges could act affirmatively on the side of the king, being dependent upon him, they of course fostered usurpations, which could only be killed by the sword. The consequences of a fair, or a foul pair of vetoes; of a veto in one political department, but not in its collateral department instituted also to preserve political liberty or of an active affirmative power exercised under the pretext of an uncreating veto; are the items of inconveniences to be computed, in order to ascertain which will be most unfriendly to liberty. On the one hand, we must contemplate a negative power in the States, incapable of making a new constitution; on the other, a power in Congress and the Court, to change the constitution, like the king and his dependent judges. A mutual check between powerful political departments, to be exercised by a reciprocal veto, seems to be the best theoretical principle hitherto discovered for securing liberty, and the only mode by which one can be prevented from swallowing up another; and its absence seems to destroy all constitutions, balances, limitations, and divisions of power, which can be devised.
It is again admitted that, according to our political theory, the judges are invested with a species of political power, not for the purpose of destroying or altering constitutions, nor to disarrange the powers of political departments, but for that of securing the rights of individuals. Constitutions and their divisions were designed for the same end, and it was not intended that one precaution should destroy the other. Both State and Federal judges in the trial of private suits, are obliged to say what is law, and what is not law. And, as unconstitutional laws are not laws, they could not render justice to an individual, by leaving him to suffer without, or against law. If Congress, or the State legislatures, pass unconstitutional laws, it would be no more obligatory than a law passed by a mob, calling itself a Congress or a legislature. Could the Supreme Court force the States to obey the law of a mob? And why not? Only because the States possess an inherent right of self-preservation. The two supposed laws being of equal validity, are equally liable to be met by this right, or it could meet neither. There is no difficulty in reconciling the right of self-preservation mutually possessed by political departments, with the right of dispensing justice, attached to judicial power. Both the rights subsist in England, and one does not invade the other. One ends where the other begins. The rights of political departments are of a different order to those of individuals, and were bestowed as safeguards for these individual rights; but if the rights of political departments are destroyed, they cannot fulfil the intention of preserving individual rights; the purpose for which they were constituted. It is therefore an obvious error to suppose that a judicial power, created as an additional security for the rights of individuals, can destroy or impair the rights of political departments, created also for the preservation of individual rights. The people have confided the custody of their political rights; divided, as they conceived, in the best mode for their security, to the Federal and State departments, prohibiting both from exercising powers intrusted to the other, and no power is given to the judges to compel one department to submit to the encroachments of the other; they have only to leave collisions to be settled by the mutual veto attached to the mutual right of self-preservation, as is done in all other countries by judicial power, and as it does here in all cases of collision between the two legislative departments.
Nothing can be more subversive of acknowledged principles than a habit of inferring from one security for individual liberty, a power to overturn others. Constitutions, so far as they comprise a previous negative for its preservation, are a recent, and have been considered as a happy, discovery; but if they have tacitly blundered into the still newer idea of exalting judicial above political power, and investing it with an irresponsible right of modeling political departments, they have obliterated their chief principles for the preservation of individual liberty, and tacitly expunged what they have expressly enacted. They proceeded upon the principle thoroughly established by experience; that independent, collateral, political departments, mutually able to control the usurpations of each other, were indispensably necessary for the preservation of individual liberty: and to these securities ours have added the new one of a limitation of legislative power, within the sphere prescribed for it by constitutions. But a judicial power in society was also necessary, and out of the constitutional limitation of legislative power, the Supreme Court has very ingeniously extracted for itself, a power to defeat the constitutional limitation of legislative power, by asserting, that their assent to a law, though unconstitutional, will make it obligatory. The liberty of individuals would be infinitely more secure, if independent, collateral, political departments, are safeguards of it, under the conjoined doctrines, that the State and Federal departments should both retain their inherent right of self-defence against their mutual usurpations, and that the judges should have no right to disobey unconstitutional laws; than by uniting in the Supreme Court a right to enforce unconstitutional laws, with a power of destroying or disordering the division of powers between the Federal and State departments. The first policy, however objectionable, would leave to individuals the securities arising both from representation and a division of powers; the second weakens both these securities to a great extent, and also exposes them to the calamities of a civil war.
The four essential principles of our theory for the preservation of liberty, are, that State constitutions ought to be the act of the people; that the Federal constitution ought to be the act of the people and the States, and should not be altered without the concurrence of three-fourths of the State governments; that a definite and permanent division of power should subsist between the State and Federal governments; and that each should possess a right of taxation, which the other cannot take away. The first has been violated by the exercise of a power in Congress, to dictate an article for a State constitution, enforced by the penalty of being excluded from the Union. The second, by the exercise of a joint power, said to reside in Congress and the Supreme Court exclusively to construe the constitution. The third, by the consequent exercise of a power to usurp or control State rights, and to alter the division of power between the State and Federal departments. And the fourth, by restricting the State right of taxation, as is attempted to be done in the bank case. It is unnecessary to recite minor infractions of our theoretical system for the preservation of liberty, because, sooner or later, a multitude of them must inevitably follow those of a vital nature, if they establish themselves. When the States have lost the right of making for themselves such constitutions as they please; when the right of altering the Federal constitution is transferred from the people and the States to Congress and the Court; when the Federal department have acquired the right of usurping powers confided to the States, and the latter have lost the right of self-defence; and when the State right of taxation is restricted by the comprehensive maxim, that they can pass no law which may obstruct the success of a law passed by Congress, will not all the vital principles of our theory be effectually destroyed? Whether this absolute power in Congress and its Court, was intended to be vested by the constitution, is the first question; if not, then the claim to it is a visible deviation from our political theory, and a visible advance towards tyranny, if that theory is better calculated for the preservation of liberty, than the proposed substitute. This doubt has, however, suggested a second question, which has an illicit influence upon the first to a great extent, namely, whether an absolute power in Congress would not be a better political theory, than that established by the people and the States, with the State and Federal ingredients. I shall presently enter into the consideration of this second question, trusting that the reader will perceive the difference between cheating the people into a new form of government, and openly proposing it for their consideration. The permission of a furtive interpolation, even if good in itself, brings with it the great defect of changing political theories without the concurrence of the people; exposes the new theory to the same artifices used to destroy its predecessor; and renders it impossible to maintain a permanent form of government.
The second point however to be considered, will shed some light upon the opinion, that an absolute power in Congress, will more effectually promote social liberty and happiness, than a mutual check between the Federal and State departments. Congress and the court seem to believe that it will, and the States and the people have been inattentive to the subject. It is not quite impossible, that such an absolute power may produce practical liberty, because absolute monarchies have occasionally done so: and therefore it is contended that a representative Congress may do the same. But the experiment of a consolidated republic, over a territory so extensive as the United States, is at least awful, when we can recollect no case in which it has been successful. If the people had believed it practicable, it would have been preferred to our system of division and union; and even if it had been adopted, from a confidence in the efficacy of representation to sustain a consolidated republic, the reasons against endowing six men with a political power co-extensive with the consolidated territory, would have been still stronger, because it would, to a great extent, have relinquished representation, the only principle relied upon, for sustaining so large a republican empire.
It must yet be admitted, that but little practical tyranny or oppression is to be feared from judicial power. Too feeble to be the source of tyranny itself, in acting oppressively it has been, and must for ever be, the instrument of some stronger power, because it neither wields the sword nor commands the treasury. If judicial power must be subservient to a stronger power, it would be a very imperfect mode of disclosing the origin of oppression, by hiding it under an odium against the Supreme Court. No, let not the tyrant hug himself in his supposed elevation beyond the reach of censure, by leaving crimination to exhaust itself upon his ministers, whilst he is furnishing them with materials, and reaping the fruits of their labours. What can this court do, except as the instrument for enforcing the laws and usurpations of Congress? In this body therefore, and not in the court, lies the source of all the mischiefs of which we complain. By supposing that the court can shield the States against the usurpations of Congress, we should concede to it the power of arranging, preserving, or defeating the division of political powers between the Federal and State departments, and surrender the question of right in the complaints of partiality. Congress forges the weapons, with which the court hack and hew principles, and the court is liable to be punished by Congress if it does not use them. We ought therefore to turn our attention from the judicial to the legislative power; as the latter is the real engineer by whom the pillars of our political system can be undermined or battered to pieces. Congress passed the sedition law, the bank law, the lottery law, and most other laws, which have generated constitutional questions. Perhaps it would have been requiring too much of the Federal court, to expect of it a steady disobedience to all the unconstitutional acts of Congress; even our Presidents, though elected by the people, have but rarely arrested them; or perhaps it conscientiously concurs with Congress, in the opinion, that Congress, as well as itself, possesses a supremacy over the States and the Constitution; a supremacy resulting from an exclusive right of construction; or perhaps it may at least believe that they ought to obtain it. From one of these causes, it has probably happened, that the instances of a bold opposition to unconstitutional laws by State judges, have been so much more frequent than similar proofs of independence on the part of Federal judges. But these considerations do not obliterate truth. It must be admitted that legislative power is the source of nearly all the violations of our political theory. Is it not more magnanimous to assail the principal than his agent? Is it necessary seriously to observe that the English precedent of impeaching the minister for the crimes of the king, is not sufficient to screen Congress by censuring the court? There is a sort of fashionable judicial etiquette, a kind of family pride, which sanctifies precedents, often sustains errors, and deserves the respect to which too long a consistency is sometimes entitled. But legislative bodies never regard this species of decorum, except as an affectation when it accords with their designs, or countenances their encroachments. The argument of consistency is with them as strong as a rock to defend, and as brittle as glass to defeat, acquisitions of wealth and power. As they never entangle themselves in a web of precedents, are quite familiarized to revocation, and are the real sources of our retrocession towards tyranny, both theoretical and practical, it is from them and them only, that redress can be required or obtained.
This remedy is by no means so rare as to be hopeless. From the many instances of its efficacy, I shall select one, which seems particularly applicable to our case. The declaration of rights proclaimed by the English lords and commons, upon the expulsion of James the second, contained a renunciation of pernicious powers, and destroyed several abuses, legislative, executive, and judicial, though sustained by precedents of long standing. Whigs and tories united in recovering the principles of the government. Are they better patriots than federalists and republicans? Is it not possible that a patriotick Congress may also appear, which will, by a similar declaration proclaim the constitutional rights of the States in which they live, and of the people to whom they must return? Will a vanishing power for ever inspire a spirit which causes one Congress to adhere to the errors of another? It would be the best imaginable compromise, for the people to agree to forgive all those of an existing Congress, if it would correct those of its predecessors. Congress can both forbear to pass unconstitutional laws, and also prevent the judges from giving laws an unconstitutional construction, either by provisions in the laws themselves, or by subsequent laws. Thus the bank law might have contained a provision that it should not be construed to impair the State right of taxation; the lottery law, that it should not be construed to extend beyond the ten miles square; and the court law might have forborne to invest the Supreme Court with an unconstitutional jurisdiction. These laws may yet be chastened by Congress of any construction which it condemns. In all cases wherein the Supreme Court has been or may be charged with extending a law of Congress by construction to any unconstitutional object, Congress has the remedy in its own hands; and its silence is therefore a recognition and a confirmation of the court's opinion, of which, advantage will be made for multiplying such constructions. As Congress is both the maker of the law, and the justifier of the court's construction, it is in vain to expect that the court will ever renounce precedents so powerfully sustained; or that they can be defeated, except by a patriotick Congress, or the State right of self-preservation.
That no effort has ever been made by Congress to defend State rights against judicial construction; and that we should be losing sight of its responsibility, by pursuing the pompous, but metaphysical judicial phantom, is an instance of fatuity, which would, without some solution, be inconceivable. It must either be the effect of a conviction in Congress, that the States possess a power to preserve their own rights, and therefore, that there is no reason, and perhaps an impropriety, that Congress should interfere between them and the Supreme Court; or, of the party spirit begotten and fostered by ambition and avarice. The nation has successively attached itself to two parties, called Federal and Republican. How can a majority bear to censure the legislature it has chosen? Is not opposition to any measures of a reigning party considered as an enlistment under the banner of the rival party? Yet no opposition can be of any practical use, but to the measures of a reigning party. Nations are always enslaved by the ingenuity of creating a blind confidence with party prejudices. A reigning party never censures itself, and the people have been tutored to vote under two senseless standards, gaudily painted over with the two words "Federalist and Republican," repeated, and repeated, without having any meaning, or conveying any information. One party passed the alien and sedition laws; the other, the bank and lottery laws; and both, many other laws, theoretically unconstitutional, and practically oppressive; but neither has overturned unconstitutional precedents, though they have often charged each other with creating them, and both have waved the ensigns of a party majority before our eyes, which we have followed to a state of national distress. If a man had successively married two wives, one called Lucretia, and the other Penelope; and should believe in their chastity, after having seen both in bed with several gallants of the worst characters, should we call him a blind cully, or an acute observer?
But there remains a mode of getting over these difficulties. The Supreme Court cannot be considered as the republican party, and therefore, we shall not wound our attachments by resisting its violations of Republican principles. If Congress has foreborne to restrain it from an opinion that the States are able to defend their rights, it only stands aloof and views the combat as an unconcerned spectator, because it knows that the States can bring into the field the competent forces confided to them by the people for their own preservation, to secure a victory. Should Congress condescend to become a partisan for the court, the title of republican party must be surrendered, because the court are not that party; and then we shall no longer be prevented by party prejudices, from considering whether the doctrines of the court tend towards the destruction of a federal, and the introduction of a consolidated republic. Congress may not be incorrect in believing that its interference between the States and the court would be unconstitutional, as implying that State rights were subjected to its protection, and that the States had not a power of self-defence.
In considering whether we are acquiring actual tyranny, our theoretical innovations needed not to have been proved; because as actual tyranny inflicts actual misery, it is unimportant to the oppressed under what theory they suffer. A subversion of the tyranny in fact, and not a war of constructions, is the only effectual remedy. But if a deviation from the principles of our constitutional theory for the preservation of liberty has been proved, and we shall now discover that actual evils have also multiplied, it will demonstrate the connection between bad principles and bad consequences.
To discover whether actual tyranny is coming or has arrived, let us endeavour to establish some unequivocal evidence, by which tyranny may be known; some characteristick, as obvious to the senses as the difference of colours; and as clear to the understanding, as that two and two make four. The plain good sense of mankind has long since escaped from the intricacy of metaphysical reasoning and discovered an infinitely more certain mode of ascertaining the existence of tyranny; but the artifices of ambition and avarice have constantly laboured to extinguish a light too luminous for their designs, and to perplex evidence too strong to be denied. When nations are induced, by the dexterities of ambition and avarice, to sear their senses against the plainest of all truths, their situation becomes hopeless, and their subjection to actual tyranny certain. The conviction of the truth of that which I am about to advance, is so universal, that abuses never venture to deny it; but use all their ingenuity to evade its force, by urging that present evils will produce future good. They either endeavour to hide actual tyranny by some eulogized theory, or to draw off the public attention from it, to some distant prospect embellished by the imagination, or to win confidence by ample promises. There is no resource for defeating such artifices, but that of clinging to the universal conviction of mankind.
Continue reading: Section 3, Part 2.
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