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made to force, the states can put an end to the government by refusing to act. They have only not to elect senators, and it expires without a struggle.
It is very true, that, whenever hostility to the existing system shall become universal, it will be also irresistible. - The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake resides only in the whole body of the people, not in any subdivision of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it.
The acknowledged inability of the government, then, to sustain itself against the public will, and by force, or otherwise, to control the whole nation, is no sound argument in support of its constitutional inability to preserve itself against a section of the nation acting in opposition to the general will.
It is true, that, if all the states, or a majority of them, refuse to elect senators, the legislative powers of the union will be suspended. But if any one state shall refuse to elect them, the senate will not on that account be the less capable of performing all its functions. The argument founded on this fact would seem rather to prove the subordination of the parts to the whole than the complete independence of any one of them.
The framers of the constitution were indeed unable to make any provisions which should protect that instrument against a general combination of the states, or of the people, for its destruction ; and, conscious of this inability, they have not made the attempt. But they were able to provide against the operation of measures adopted in any one state, whose tendency might be to arrest the execution of the laws; and this it was the part of true wisdom to attempt. We think they have attempted it.
It has been also urged, as an additional objection to the jurisdiction of the court, that cases between a state and one of its own citizens do not come within the general scope of the constitution ; and were obviously never intended to be made cognizable in the federal courts. The state tribunals might be suspected of partiality in cases between itself, or its citizens, and aliens, or the citizens of another state, but not in proceedings by a state against its own citizens. That jealousy which might exist in the first case could not exist in the last, and therefore the judicial power is not extended to the last.
This is very true, so far as jurisdiction depends on the character of the parties; and the argument would have great force if urged to prove that this court could not establish the demand of a citizen upon his state, but is not entitled to the same force when urged to prove that this court cannot inquire whether the constitution or laws of the United States protect a citizen from a prosecution instituted against him by a state. If jurisdiction depended entirely on the character of the parties, and was not given where the parties have not an original right to come into court, that part of the second section of the third article, which extends the judicial power to all cases arising under the constitution and laws of the United States, would be mere surplusage. It is to give jurisdiction where the character of the parties would not give it that this very important part of the clause was inserted. It may be true that the partiality of the state tribunals, in ordinary controversies between a state and its citizens, was not apprehended, and therefore the judicial power of the union was not extended to such cases; but this was not the sole nor the greatest object for which this department was created. A more important, a much more interesting object, was the preservation of the constitution and laws of the United States, so far as they can be preserved by judicial authority; and therefore the jurisdiction of the courts of the union was expressly extended to all cases arising under that constitution and those laws. If the constitution or laws may be violated by proceedings instituted by a state against its own citizens, and if that violation may be such as essentially to affect the constitution and the laws, such as to arrest the progress of government in its constitutional course, why should
these cases be excepted from that provision which extends the judicial power of the union to all cases arising under the constitution and laws ?
After bestowing on this subject the most attentive consideration, the court can perceive no reason founded on the character of the parties for introducing an exception which the constitution has not made ; and we think that the judicial power, as originally given, extends to all cases arising under the constitution or a law of the United States, whoever may be the parties. .
It has been also contended that this jurisdiction, if given, is original, and cannot be exercised in the appellate form.
The words of the constitution are, “in all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all the other cases before mentioned the supreme court shall have appellate jurisdiction.”
This distinction between original and appellate jurisdiction excludes, we are told, in all cases, the exercise of the one where the other is given.
The constitution gives the supreme court original jurisdiction in certain enumerated cases, and gives it appellate jurisdiction in all others. Among those in which jurisdiction must be exercised in the appellate form are cases arising under the constitution and laws of the United States. These provisions of the constitution are equally obligatory, and are to be equally respected. If a state be a party, the jurisdiction of this court is original ; if the case arise under a constitution or a law, the jurisdiction is appellate. But a case to which a state is a party may arise under the constitution or a law of the United States. What rule is applicable to such a case ? What, then, becomes the duty of the court ? Certainly, we think, so to construe the constitution as to give effect to both provisions, as far as it is possible to reconcile them, and not to permit their seeming repugnancy to destroy each other. We must endeavor so to construe them as to preserve the true intent and meaning of the instrument.
In one description of cases the jurisdiction of the court is founded entirely on the character of the parties; and the nature of the controversy is not contemplated by the constitution. The character of the parties is everything, the nature of the case nothing. In the other description of cases the jurisdiction is founded entirely on the character of the case, and the parties are not contemplated by the constitution. In these the nature of the case is everything, the character of the parties nothing. When, then, the constitution declares the jurisdiction, in cases where a state shall be a party, to be original, and in all cases arising under the constitution or a law, to be appellate, — the conclusion seems irresistible that its framers designed to include in the first class those cases in which jurisdiction is given because a state is a party; and to include in the second those in which jurisdiction is given because the case arises under the constitution or a law.
This reasonable construction is rendered necessary by other considerations.
That the constitution or a law of the United States is involved in a case, and makes a part of it, may appear in the progress of a cause in which the courts of the union, but for that circumstance, would have no jurisdiction, and which, of consequence, could not originate in the supreme court. In such a case the jurisdiction can be exercised only in its appellate form. To deny its exercise in this form is to deny its existence, and would be to construe a clause, dividing the power of the supreme court, in such manner as, in a considerable degree, to defeat the power itself. All must perceive that this construction can be justified only where it is absolutely necessary. We do not think the article under consideration presents that necessity.
It is observable that in this distributive clause no negative words are introduced. This observation is not made for the purpose of contending that the legislature may “apportion the judicial power between the supreme and inferior courts according to its will.” That would be, as was said by this court in
the case of Marbury v. Madison, to render the distributive clause “mere surplusage,” to make it “ form without substance.” This cannot, therefore, be the true construction of the
But although the absence of negative words will not authorize the legislature to disregard the distribution of the power previously granted, their absence will justify a sound construction of the whole article, so as to give every part its intended effect. It is admitted that “affirmative words are often in their operation negative of other objects than those affirmed ;” and, that, where “a negative or exclusive sense must be given to them, or they have no operation at all,” they must receive that negative or exclusive sense. But where they have full operation without it, where it would destroy some of the most important objects for which the power was created, then, we think, affirmative words ought not to be construed negatively.
The constitution declares that in cases where a state is a party the supreme court shall have original jurisdiction ; but does not say that its appellate jurisdiction shall not be exercised in cases where, from their nature, appellate jurisdiction is given, whether a state be or be not a party. It may be conceded, that, where the case is of such a nature as to admit of its originating in the supreme court, it ought to originate there; but where from its nature it cannot originate in that court, these words ought not to be so construed as to require it. There are many cases in which it would be found extremely difficult, and subversive of the spirit of the constitution, to maintain the construction that appellate jurisdiction cannot be exercised where one of the parties might sue or be sued in this court.
The constitution defines the jurisdiction of the supreme court, but does not define that of the inferior courts. Can it be affirmed that a state might not sue the citizen of another state in a circuit court? Should the circuit court decide for or against its jurisdiction, should it dismiss the suit, or give judgment against the state, might not its decision be revised in the supreme court ? The argument is that it could not; and the