"But it is perfectly consistent with the concession of this power to the Supreme Court, in cases falling within the course of its functions, to maintain that the power has not always been rightly exercised. To say nothing of the period, happily a short one, when judges in their seats did not abstain from intemperate and party harangues, equally at variance with their duty and their dignity, there have been occasional decisions from the bench which have incurred serious and extensive disapprobation. Still, it would seem that, with but few exceptions, the course of the judiciary has been hitherto sustained by the prominent sense of the nation.

"Those who have denied or doubted the supremacy of the judicial power of the United States, and denounce at the same time a nullifying power in a State, seem not to have sufficiently adverted to the utter inefficiency of a supremacy in a law of the land, without a supremacy in the exposition and execution of the law; nor to the destruction of all equipoise between the Federal government and the State governments, if, whilst the functionaries of the Federal government are directly or indirectly elected by, and responsible to, the States, and the functionaries of the States are in their appointment and responsibility wholly independent of the United States, no constitutional control of any sort belonged to the United States over the States. Under such an organization, it is evident that it would be in the power of the States, individually, to pass unauthorized laws, and to carry them into complete effect, anything in the Constitution and laws of the United States to the contrary notwithstanding. This would be a nullifying power in its plenary character; and whether it had its final effect through the legislative, executive, or judiciary organ of the State, would be equally fatal to the constituted rolation between the two governments.

"Should the provisions of the Constitution, as here reviewed, be found not to secure the government and rights of the States against usurpations and abuses on the part of the United States, the final resort within the purview of the Constitution lies in an amendment of the Constitution, according to a process applicable by the States.

"And in the event of a failure of every constitutional resort, and an accumulation of usurpations and abuses, rendering passive obedience and non-resistance a greater evil than resistance and revolution, there can remain but one resort, the last of all; an ap peal from the cancelled obligations of the constitutional compact to original rights and the law of self-preservation. This is the ultima ratio under all governments, whether consolidated, confederated, or a compound of both; and it cannot be doubted that a single member of the Union, in the extremity supposed, but in that only, would have a right, as an extra and ultra constitutional right, to make the appeal.

"This brings us to the expedient lately advanced, which claims for a single State a right to appeal against an exercise of power by the government of the United States, decided by the State to be unconstitutional to the parties to the constitutional compact; the decision of the State to have the effect of nullifying the act of the government of the United States, unless the decision of the State bo reversed by three-fourths of the parties.

"The distinguished names and high authorities which appear to have asserted and given a practical scope to this doctrine, entitle it to a respect which it might be difficult otherwise to feel for it.

"If the doctrine were to be understood as requiring the three-fourths of the States to sustain, instead of that proportion to reverse, the decision of the appealing State, the decision to be without effect during the appeal, it would be sufficient to remark that this extra-constitutional course might well give way to that marked out by the Constitution, which authorizes two-thirds of the States to institute, and three-fourths to effectuate, an amendment of the Constitution, establishing a permanent rule of the highest authority in place of an irregular precedent of construction only.

303

"But it is understood that the nullifying doctrine imports that the decision of the State is to be presumed valid, and that it overrules the law of the United States, unless overruled by three-fourths of the States.

“Can more be necessary to demonstrate the inadmissibility of such a doctrine than that it puts it in the power of the smallest fraction over one-fourth of the United States, that is, of seven States out of twenty-four, to give the law, and even the Constitution, to seventeen States, each of the seventeen having, as parties to the Constitution, an equal right with each of the seven to expound it, and to insist on the exposition? That the seven might in particular instances be right, and the seventeen wrong, is more than possible. But to establish a positive and permanent rule, giving such a power to such a minority over such a majority, would overturn the first principle of free government, and in practice necessarily overturn the government itself.

"It is to be recollected that the Constitution was proposed to the people of the States as a whole, and unanimously adopted by the States as a whole, it being a part of the Constitution, that not less than three-fourths of the States should be competent to make any alteration in what had been unanimously agreed to. So great is the caution on this point, that in two cases where peculiar interests were at stake, a proportion even of three-fourths is distrusted, and unanimity required to make an alteration.

"When the Constitution was adopted as a whole, it is certain that there were many parts which, if separately proposed, would have been promptly rejected. It is far from impossible that every part of a constitution might be rejected by a majority, and yet taken together as a whole, be unanimously accepted. Free constitutions will rarely, if ever, be formed without reciprocal concessions, without articles conditioned on and balancing each other. Is there a constitution of a single State out of the twenty-four that would bear the experiment of having its component parts submitted to the people and separately decided on?

"What the fate of the Constitution of the United States would be, if a small proportion of the States could expunge parts of it particularly valued by a large majority, can have but one answer.

"The difficulty is not removed by limiting the doctrine to cases of construction. How many cases of that sort, involving cardinal provisions of the Constitution, have occurred? How many now exist? How many may hereafter spring up? How many might be ingeniously created, if entitled to the privilege of a decision in the mode proposed?

"Is it certain that the principle of that mode would not reach further than is contemplated? If a single State can, of right, require three-fourths of its co-States to overrule its exposition of the Constitution, because that proportion is authorized to amend it, would the plea be less plausible that, as the Constitution was unanimously established, it ought to be unanimously expounded?

"The reply to all such suggestions seems to be unavoidable and irresistible; that the Constitution is a compact; that its text is to be expounded according to the provisions for expounding it, — making a part of the compact; and that none of the parties can rightfully renounce the expounding provision more than any other part. When such a right accrues, as may accrue, it must grow out of abuses of the compact releasing the sufferers from their fealty to it."

CHAPTER V.

RULES OF INTERPRETATION.

§ 397. IN our future commentaries upon the Constitution we shall treat it, then, as it is denominated in the instrument itself, as a CONSTITUTION of government, ordained and established by the people of the United States for themselves and their posterity. They have declared it the supreme law of the land. They have made it a limited government. They have defined its authority. They have restrained it to the exercise of certain powers, and reserved all others to the States or to the people. It is a popular government. Those who administer it are responsible to the people. It is as popular, and just as much emanating from the people, as the State governments. It is created for one purpose, the State governments for another. It may be altered and amended and abolished at the will of the people. In short, it was made by the people, made for the people, and is responsible to the people.2

§ 398. In this view of the matter, let us now proceed to consider the rules by which it ought to be interpreted; for if these rules are correctly laid down it will save us from many embarrassments in examining and defining its powers. Much of the difficulty which has arisen in all the public discussions on this subject has had its origin in the want of some uniform rules of interpretation expressly or tacitly agreed on by the disputants. Very different doctrines on this point have been adopted by differ

1 "The government of the Union," says Mr. Chief Justice Marshall, in delivering the opinion of the court in McCulloch v. Maryland, 4 Wheat. 316, "is emphatically and truly a government of the people. It emanates from them; its powers aro granted by them, and are to be exercised directly on them and for their benefit." Id. 404, 405; see also Cohens v. Virginia, 6 Wheat. R. 264, 413, 414.

"The government of the United States was erected," says Mr. Chancellor Kent, with equal force and accuracy, "by the free voice and the joint will of the people of America for their common defence and general welfare." 1 Kent's Comm. Lect. 10, p. 189.

2 I have used the expressive words of Mr. Webster, deeming them as exact as any that could be used. See Webster's Speeches, pp. 410, 418, 419; 4 Elliot's Debates, 338, 343.

ent commentators; and not unfrequently very different language held by the same parties at different periods. In short the rules of interpretation have often been shifted to suit the emergency; and the passions and prejudices of the day or the favor and odium of a particular measure have not unfrequently furnished a mode of argument which would on the one hand leave the Constitution crippled and inanimate, or, on the other hand, give it an extent and elasticity subversive of all rational boundaries.

§ 399. Let us, then, endeavor to ascertain what are the true rules of interpretation applicable to the Constitution; so that we may have some fixed standard by which to measure its powers, and limit its prohibitions, and guard its obligations, and enforce its securities of our rights and liberties.

§ 400. I. The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms and the intention of the parties. Mr. Justice Blackstone has remarked that the intention of a law is to be gathered from the words, the context, the subject-matter, the effects and consequence, or the reason and spirit of the law. He goes on to justify the remark by stating, that words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar as their general and popular use; that if words happen to be dubious, their meaning may be established by the context, or by comparing them with other words and sentences in the same instrument; that illustrations may be further derived from the subject-matter with reference to which the expressions are used; that the effect and consequence of a particular construction is to be examined, because, if a literal meaning would involve a manifest absurdity, it ought not to be adopted; and that the reason and spirit of the law, or the causes which led to its enactment, are often the best exponents of the words, and limit their application.2

11 Black. Comm. 59, 60. See also Ayliffe's Pandects, B. 1, tit. 4, p. 25, &c. ; 1 Domat, Prelim. Book, p. 9; Id. Treaties on Laws, ch. 12, p. 74.

2 Id. See also Woodes. Elem. of Jurisp. p. 36. Rules of a similar nature will be found laid down in Vattel, B. 2, ch. 17, from § 262 to § 310, with more ample illustrations and more various qualifications. But not a few of his rules appear to me to want accuracy and soundness. Bacon's Abridg. title, Statute I. contains an excellent sum. mary of the rules for construing statutes. Domat, also, contains many valuable rules in respect to interpretation. See his treatise on Laws, ch. 12, p. 74, &c., and Prelim. inary Discourse, tit. 1, § 2, p. 6 to p. 16.

VOL. I.20

§ 401. Where the words are plain and clear, and the sense distinct and perfect arising on them, there is generally no necessity to have recourse to other means of interpretation. (a) It is only when there is some ambiguity or doubt arising from other sources that interpretation has its proper office. There may be obscurity as to the meaning, from the doubtful character of the words used, from other clauses in the same instrument, or from an incongruity or repugnancy between the words and the apparent intention derived from the whole structure of the instrument or its avowed object. In all such cases interpretation becomes indispensable.

§ 402. Rutherforth has divided interpretation into three kinds, literal, rational, and mixed. The first is, where we collect the intention of the party from his words only, as they lie before us. The second is, where his words do not express that intention perfectly, but exceed it, or fall short of it, and we are to collect it from probable or rational conjectures only. The third is, where the words, though they do express the intention, when they are rightly understood, are themselves of doubtful meaning, and we are bound to have recourse to the like conjectures to find out in what sense they are used. In literal interpretation the rule observed is, to follow that sense in respect both of the words and of the construction of them which is agreeable to common use, without attending to etymological fancies or grammatical refinements. In mixed interpretation, which supposes the words to admit of two or more senses, each of which is agreeable to common usage, we are obliged to collect the sense partly from the words and partly from conjecture of the intention. The rules then adopted are, to construe the words according to the subject-matter, in such a sense as to produce a reasonable effect, and with reference to the circumstances of the particular transaction. Light may also be obtained in such cases from contemporary facts or expositions; from antecedent mischiefs; from known habits, manners, and institutions; and 1 Book 2, ch. 7, § 3.

(a) In such cases the words are to be taken in the sense which they naturally bear on their face. Lake v. Rollins, 130 U. S. 662; Doggett v. Florida R. Co., 99 U. S. 72. Hence legislation operates prospectively unless a different intention is

perfectly manifest; and the same is true of constitutions. Shreveport v. Cole, 129 U. S. 36. Further, see Tennessee v. Whitworth, 117 U. S. 129; Henderson v. Wickham, 92 U. S. 259.