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The Judicial Department, as we have said, expounds, applies, and upholds the laws, in all disputed cases, and checks the other departments; and its decisions, are without appeal. Hence, it has been considered to be the sole depository of the curative means provided by the Constitution for all violations, evasions, and other injuries, to which that instrument might be subjected. This is true, as to all questions under the Constitution, or from its action, and to all cases in which both, or at least one of the parties, are the creatures of the Constitution; or, where this is not the case, to classes of contingencies specifically designated in the text of the instrument. In all such questions and cases, the decisions of the Federal Judiciary are appropriate, supreme, and final. But there are cases, which do not come within the purview of the Constitution,-cases in which one of the parties is paramount, in attributes and authority, to the tribunal, and to the Constitution itself,-cases in which that instrument has been violated, and the government the party incriminated! In such cases, where is the court, and who is the judge ? To go to the Supreme Court, would be absurd; for, besides that the matter lies beyond her cognizance, she, in passing her judicial sanctions on the violatory laws, is one of the parties inculpated. But, we ask again : When the Federal Government, whether from erroneous views of the Constitution, or from any other cause, have infringed and violated their charter; when Congress has assumed dangerous and unwarranted powers, and passed obnoxious laws, which inflict fatal injury on vital interests,interests, the preservation and promotion of which, formed the motives and objects in establishing the government; when the President has affixed his approving signature to them, and the Judiciary legalized them by judicial sanctions, where, in such cases, and at such a crisis, does the remedy lie, and in what does it consist ? We answer,
1st. It does not lie with the Supreme Court; for as has been already said, that organ is one of the parties incriminated : Perhaps, she is the arch offender,-for, to her guardianship was committed the virgin chastity of the Constitution.
2d. It does not lie with the States, that is, the State Governments; for they possess not, either by their own charter, or that of the Union, any lot or share in the government of the Constitution. They revolve, to be sure, in circles concentric with that of the Federal Government, and derive their light and heat from the same central orb; but they move in different planes and different orbits. To the Federal Government, they are wholly foreign and dispartite.
3d. It does not lie with the ballot-box. The duty of citizens, under the Constitution, and the oath of allegiance, is obedience. They are bound, on every principle of order, reason, and good faith, to regard all the laws and measures of the Government as enacted and done in pursuance of the Constitution, so long as those laws and measures are not abrogated by the tribunal specifically established by the Constitution for the guardianship of its provisions. So that, though the Government may have ordained acts which do violate the spirit, and even the very letter, of the Constitution, and frustrate its objects, the people, as citizens, are bound to regard, practically, such acts as constitutional. We say practically,—for they certainly are entitled to their private opinions, and to act on those opinions at the stated periods of election. On these occasions, then, they will effect changes in the legislative and administrative departments of the government in conformity with those opinions. And the new officials, thus elected, will, in their turn, make the required alterations and modifications in the public laws. They will, perhaps, condemn the principles, as well as the conduct, of their predecessors, pursue a course of policy wholly opposite, and do whatsoever in their power lies, to repair the injuries of past infractions and spoliations. But every thing which they can do is superficial and ephemeral.
What one set of official agents does, another set may undo, and a third set do again; and so on ad infinitum. Hence, the elective franchise and the ballot-box, on which so many place their hopes and their faith, as the true and adequate
means for neutralizing the evils of government, and disenthralling the Constitution from the effects of violation and misrule, rest on the uncertain and fluctuating basis of temporary policy and existing expediency. Moreover : citizens cannot, in any other way, traverse, obstruct, or alter the course of government, than on the principle of insurrection and revolution. Hence, citizens, through the elective franchise, can do no more than effect changes in men and measures; and these changes, proceeding, as they do, on the principles of expediency, and incidental policy, though they are capable of causing fundamental principles to be misapplied, abused, and rendered abortive, can never fix, ordain, or re-establish maxims, or institutes, for the regulation of government when once they have been dislocated, shattered, or overthrown.
But, the Constitution having been violated, and its meaning robbed of its fixidity and identity ; and having been rendered susceptible of any construction, which the agents who were appointed to carry out its stipulations, and to be governed by its dictations, may be pleased to give it ;having thus lost its polarity, and thereby left the vessel of state, to be driven about at pleasure, by the varying winds of legislative discretion, and of party interests ;—and being no longer a palladium for public liberty, or a fixed immutable basis for a steady and definite government ;-and there being no competency in the Judiciary, the State Güvernments, or the Elective Franchise, adequate to its rescue and repair, it must seek an asylum in the hands of the same omnipotent power which created it. Hence, the remedy lies 4th. with the people in their character of ultimate sovereigns. When the Legislature in enacting,— the Executive in approving,—the Judiciary in legalizing,— unnecessary and improper laws, or in assuming undelegated powers, or in any way setting at nought the Constitution, the question, from that moment, transcends the cognizance of all secondary and derivative tribunals. A government has, in such a case, violated and falsified its trusts,—has forfeited its charter. A questio reipublicæ,—a casus faderis, in consequence, arises ; all subordinate and supervenient tribunals become paralyzed and quiescent,--while the matter mounts, by its own ascension, to the Supreme Tribunal whence laws and governments take their origin. Hence, 5th. The remedy consists in the interposition of a State or States, annulling, or setting aside, the obnoxious law. In this way alone, next to that of tearing down the edifice of Government, can the sovereign power act. This great principle, the safest, the surest, the most authoritative corrigent of the evils of usurpation and misrule, is the unalienable attribute of sovereignty,-of State sovereignty. It is the great recuperative faculty, the vis medicatrix of the Constitution. And the whole of our political system is
based upon it, as its most certain guaranty,—for it proceeds on the principle, that the power which was able to call the Constitution into existence, is also able to superintend and uphold its conservation.
Whenever, therefore, the government has unsettled the meaning of the Constitution, in any of its parts,-or has assumed powers and enacted laws not sanctioned by its letter and spirit,--any one, or more, of the sovereign parties, has the power, is warranted, and, we may say, is in duty bound, to assist the Government in its career, by. assembling, in Convention, and annulling the obnoxious laws. This act, thus performed by the sovereign power, is paramount and final, within the limits of the State or States so annulling; and ought to be suspensory, at least within the limits of the other States, till such time as a general Convention of all the States shall meet, to take the matter into their consideration. When one or more of the State sovereignties shall have thus rectified the aberrations of the General Government, it is the bounden duty of the latter, in consonance with the principles which form the life and essence of our peculiar polity, immediately to rescind the obnoxious laws, and to consider this act of the annulling State or States, as forever settling the meaning of the Constitution, in that point of its text on which the Government had grounded the legitimacy of the doctrines and laws which have been abrogated. If, however, the Government should have strong and just reasons for believing that their course is upheld by the other sovereign States, or most of them, then, it will be their duty, not to take the monstrous, the revolting, the paricidal step, of assuming arms against parental and supreme authority, but to appeal to the coStates. The result of this will be, a general Convention of all the States, and thus, the matter arrives at the supreme source from which the Constitution issued.
We will suppose, that the government has passed obnoxious laws; that a State, in its sovereignty, has annulled them; that Congress has appealed to the other sovereign States ; and that a general Convention, in consequence, en
We will not attempt an exposé of what would be the probable course of deliberation pursued by this august body. Of its action, the result will be either,
1st. A general concurrence of the assembled States, as
to the unconstitutionality of the laws in question, consequently, the total extinction of them, as measures of the Government,--and this further, and more essential consequence, viz. : a perpetual estoppel, or prohibition, to the Government, ever hereafter, to put such a construction on the meaning of the Constitution, as was considered by them to authorize their action in the present premises : or,
2dly. A division in the Convention, as to the constitutionality of the said laws. In this latter event, it will then come to pass, that the sovereign parties had formed for themselves the basis of a general government, without that thorough and perfect, mutual understanding, as to what should be the duties, and powers of the latter, which is absolutely essential to its existence, its duration, and its wholesome action. To settle this point will, then, be the grand topic of deliberation. At the same time, the whole Constitution will be reconsidered ; the present, and the past action of the government, be compared with it; and a final decision be pronounced, as to what is, and what is not, its meaning, on hitherto disputed, and still unsettled points; as to what are, and what are not, the sphere of the duties, and the limits of the discretion, of the government; and, as to what are, and what are not, the sovereign powers which are to come within its province, under any and all contingencies.
But, we have supposed that a division takes place in the Convention, as to the constitutionality of the abrogated laws. In this event, if a majority of the States sustain the Government, and the minority see fit subsequently to concur, then, the laws are revived, and again in force. But, if a majority condemn the laws, and the minority see fit to concur, then the said laws are finally disposed of, as null and void. In either case, the meaning of the Constitution is forever settled on that particular point. But, if this harmony and concurrence do not take place, and the dissentient States do not form some plan of compromise and settlement, then the Union and Government, as they now exist, are at an end ; and, it will remain for the minority States, at least to say what will be their future course.
But, we will not anticipate so lamentable an issue; we will not suppose that a dissolution of the Union will, or can be, the result. On the contrary, the Constitution will be
VOL. I.-NO. I.