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a CONSTITUTION of government; and we are to reject all other appellations and definitions of it, such as that it is a compact, especially as they may mislead us into false constructions and glosses, and can have no tendency to instruct us in its real objects. (a)

(a) For the contrary view see further, A. P. Upshur (Petersburg, Va., 1840), Construction Construed and Constitutions Professor Henry St. George Tucker's LecVindicated, by John Taylor (1820), New tures on Constitutional Law (Richmond, Views of the Constitution of the United 1843), and the Constitutional View of the States, by the same writer (1823), the War between the States, by Alexander H. Review of these Commentaries Judge Stephens, 1867–70.

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CHAPTER IV.

WHO IS FINAL JUDGE OR INTERPRETER IN CONSTITUTIONAL

CONTROVERSIES.

$ 373. The consideration of the question whether the Constitution has mado provision for any common arbiter to construe its powers and obligations would properly find a place in the analy: sis of the different clauses of that instrument. But, as it is immediately connected with the subject before us, it seems expedient in this place to give it a deliberate attention.1

$ 374. In order to clear the question of all minor points, which might embarrass us in the discussion, it is necessary to suggest a few preliminary remarks. The Constitution, contemplating the grant of limited powers, and distributing them among various functionaries, — and the State governments, with their functionaries, being also clothed with limited powers, subordinate

1 The point was very strongly argued, and much considered, in the case of Cohens 0. Virginia, in the Supreme Court in 1821 (6 Wheat. R. 264). The whole argument, as well as the judgment, deserves an attentive reading. The result to which the argument agninst the existence of a common arbiter leads is presented in a very forcible manner by Mr. Chief Justice Marshall, in pages 376, 377.

“The questions presented to the court by the two first points mado at the bar are of great magnitude, and may be truly said vitally to affect the Union. They exclude the inquiry whether the Constitution and laws of the United States have been violated by the judgment, which the plaintiffs in error seek to review; and maintain that, admitting such violation, it is not in the power of the government to apply a corrective. They maintnin that the nation does not possess a department capablo of restraining penconlly, nnd by nuthority of lnw, any nttempts which inny bo mindo by a part agninst the legitimate powers of the wholo; and that the goverument is reduced to the alternative of submitting to such attempts or of resisting them by force. They maintain that the Constitution of the United States has provided no tribunal for tho final construction of itself, or of the laws or treaties of the nation ; but that this power may be exercised in the last resort by the courts of every State in the Union. That the Constitution, laws, and treaties may receive as many constructions as there are States ; and that this is not a mischief, or, if a mischief, is irremediable. These abstract propositions are to be determined ; for he who demands decision without permitting inquiry aflirms that the decision he asks does not depend on inquiry.

“If such be the Constitution, it is the duty of this court to bow with respectful submission to its provisions. If such be not the Constitution, it is equally the duty of this court to say so; and to perform that task which the American people have assigned to the judicial department."

VOL. I. -- 18

to those granted to the general government, — whenever any question arises as to the exercise of any power by any of these functionaries under the state or federal government, it is of necessity that such functionaries must, in the first instance, decide upon the constitutionality of the exercise of such power. 1 It may arise in the course of the discharge of the functions of any one, or of all, of the great departments of government, the executive, the legislative, and the judicial. The officers of each of these departments are equally bound by their oaths of office to support the Constitution of the United States, and are therefore conscientiously bound to abstain from all acts which are inconsistent with it. Whenever, therefore, they are required to act in a case not hitherto settled by any proper authority, these functionaries must, in the first instance, decide each for himself, whether, consistently with the Constitution, the act can be done. If, for instance, the President is required to do any act, he is not only authorized but required to decide for himself, whether, consistently with his constitutional duties, he can do the act.2 So,

1 See the Federalist, No. 33.

? Mr. Jefferson carrios his doctrino much furthor, and holds that ench departinont of government has an exclusive right, independent of the judiciary, to decide for itself as to the true construction of the Constitution. “My construction," says he, “is very different from that you quote. It is, that each department of the government is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the laws submitted to its action, and especially when it is to act ultimately and without appeal.” And he proceeds to give examples in which he disregarded, when President, the decisions of the judiciary, and refers to the alien and sedition laws, and the case of Marbury v. Madison (1 Cranch, 137). 4 Jefferson's Correspondence, 316, 317. See also 4 Jefferson's Corresp. 27; Id. 75 ; Id. 372, 374. (a)

(a) In Attorney-General v. Barstow, 4 ity of that court to consider and decide Wis. 587, tho view of Mr. Jefferson was upon the title to the offico. His position, pressed still farther. The facts were that as stated by his counsel, was as follows: Barstow, the governor of the State, was “1. The three departments of the defeated by the pooplo in a canvass for Stato govornment, the legislativo, the exre-election. Certain spurious election ro. ccutive, and judicial, aro equul, co-orili. turns were, nevertheless, placed on file nate, and independent of each other; and with the State Board of Canvassers, which, that each department must be and is the together with the genuine returns, gave ultimate judge of the election and qualihim an apparent majority over the oppos fication of its own member or members, ing candidate. Thereupon he declined to subject only to impeachment and appeal surrender the office at the end of the

to the people. term, and on quo warranto against him “2. That this court must take judicial in the Supreme Court denied the author notice of who is governor of the State,

if a proposition be before Congress, every member of the legislative body is bound to examine and decide for himself whether the bill or resolution is within the constitutional reach of the legislative powers consided to Congress. And in many cases the decisions of the executive and legislative departments, thus made, become final and conclusive, being from their very nature and character incapable of revision. Thus, in measures exclusively of a political, legislative, or executive character, it is plain that as the supreme authority, as to these questions, belongs to the legislativo and executivo departments, they cannot be re-examined elsewhere. Thus, Congress having the power to declare war, to levy taxes, to appropriate money, to regulate intercourse and commerce with foreign nations, their mode of executing these powers can never become the subject of re-examination in any other tribunal. So the power to make treaties being confided to the President and Senate, when a treaty is properly ratified it becomes the law of the land, and no other tribunal can gainsay its stipulations. Yet cases may readily be imagined in which a tax may be laid or a treaty made, upon motives and grounds wholly beside the intention of the Constitution. The remedy, however, in such cascs is solely by an appeal to the people at the elections, or by the salutary power of amendment provided by the Constitution itself.2

§ 375. But where the question is of a different nature, and capable of judicial inquiry and decision, there it admits of a very

1 See 4 Elliot's Debates, 315 to 320.

3 The Federalist, No. 44. Mr. Madison, in the Virginia Report of January, 1800, has gone into a consideration of this point, and very properly suggested that there may be infractions of the Constitution not within the reach of the judicial power, or cnpable of remedial redress through the instrumentality of courts of law. But we cannot agree with him, that in such cases each State may take the construction of the Constitution into its own hands, and decide for itself in the last resort ; much less that in a case of juclicial cognizanco tho decision is not biniling on the States. See Report, pr. 6, 7, 8, 9. when he was inaugurated, the genuineness government ; that that power rests with of his signature, &c.; and therefore can the people, to be exercised by them when not hear argument or evidence upon the they think the exigency requires it." subject. That who is rightfully entitled The startling doctrine so broadly stated to tho office of governor can in no case received so little countenance from the becoino a judicial question, and

court to which it was addressed as “3. That the Constitution provides scarcely to be treated with the courtesy of no means for ousting a successful usurper a discussion. of either of the three departments of the

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different consideration. The decision then made, whether in favor or against the constitutionality of the act, by the State or by the national authority, by the legislature or by the executive, being capable, in its own nature, of being brought to the test of the Constitution, is subject to judicial revision. It is in such cases, as we conceive, that there is a final and common arbiter provided by the Constitution itself, to whose decisions all others are subordinate; and that arbiter is the supreme judicial authority of the courts of the Union." (a)

1 Dane

App. $$ 44, 45, pp. 52 to 59. It affords me very sincere gratification to quote the following passage from the learned Commentaries of Mr. Chancellor Kent, than whom very few judges in our country are more profoundly versed in constitutional law. After enumerating the judicial powers in the Constitutiou, lic proceeds to observe : "The propriety and fitness of these judicial powers seem to result, as a necessary consequence, from the union of these States in one national government, and they may be considered as requisite to its existence. The judicial power in every government must be coextensive with the power of legislation. Were there no power to interprct, pronounce, and execute the law, the government would either perish through its own imbecility, as was the case with the old confederation, or other powers must be assuined by the legislative body to the destruction of liberty." 1 Kent's Comm. (2d ed. p. 296), Lect. 14, 277.

(a) The author speaks here of a de of the legislative function, and therefore cision for or against the constitutionality to re-enact the law, though in their own of a particular act. Upon such a ques. view it may be a clear and dangerous intion, as he truly remarks, the final arbiter fraction of the Constitution ? This is a is “the supreme judicial authority of the question quite aside from that here discourts of the Union.” The final decision cussed by our author. of that authority is binding upon all the As illustrating this question a noted people, all the States, and all the depart. instance may be referred to. Previous to ments of the general government.

1832 the Supreme Court of the United But as between these several depart States had in a deliberate decision dements, there are and must be bounds to clared that Congress had the power to this conclusiveness of adjudication. The charter a Bank of the United States. question that is judicial to-day may be po But in 1832 the question of re-charter litical to-inorrow. Judicial questions the arising, and a bill having passed the two courts decide; political are addressed to the houses for the purpose, President Jackson wisdom of the legislaturo. To-Iny tho votocd it. In the course of his voto ines. question may be whether an existing act is sago he says: constitutional. That is purely judicial. “It is maintained by the advocates of To-morrow the act may have expired, and the bank, that its constitutionality, in all the question may be whether it should be its features, ought to be considered as re-enacted. That question is political. settled hy precedent and by the decision Suppose there be no other objection to its of the Supreme Court. To this conclure-enactment than doubts of its constitu sion I cannot assent. Mere precedent is tionality, are legislators bound to defer to a dangerous source of authority, and the judgment of the court in the exercise should not be regarded as deciding ques

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