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No. XXI.




It arrived only at its perfect and full deConstitutionality.

velopment within the last few ages, and It is never to be lamented when men stands immoveable, by the accumulated are driven to search into the foundation of strength of all its past existence. It came the commonwealth ; as it is necessary for into perfect being, not by revolution, not the conduct of life that the divine and ab- by a change of principles, but by the nastract principles of virtue should have a tive force of an internal life, which impellconscious existence in the intellect, and ed it to throw off a foreign incumbrance, should be frequently agitated and discuss- and stand free in the vigor of independed; so, if we intend to maintain in their ant youth. It is a government of princioriginal purity and force, those ideas of ples, not of prescription, nor of forms. authority, of right, and of obedience, upon | Its traditional forms are few; it did not which all government is founded, we must come down to us loaded with the corruptoften reflect, and induce others to reflect ions of former ages, to be maintained by upon them, in their simplicity. It is ne

the timid and condemned by the wise, cessary to revive and fortify the spirit of It is a government of necessity; it arose the Constitution by frequent recurrence to from necessity, and exists by necessity ; it the rights and opinions upon which it is therefore not subvertible while its moral rests ; tracing these to their principles, and conditions exist. But the necessity which casting an historic glance upon those con- gave it birth is not that with which the ditions of society—those exigencies of hu- mathematics are conversant, nor the wants manity~from which they took their rise, and desires of the grosser nature of man. and through which they became appa- The necessity with which our laws are in rent ; rights

, in our own case, derived accordance is of a moral nature, and can be from a recognition of the imperious neces- found only in the operation of moral causes. sity of freedom to the full development of

In the course of history, philosophers our nature ; principles, grounded in human observe series of events signifying the exnature

, tested by the experience of all | istence and operation of certain divine and time, and suggested as rules of legislation moral laws, by which the superior destiny from an observation of the evils that arose of man is distinguished above his physical upon their absence. Ours is not an hypo- and

destiny. Governments thetical government ; it was not erected founded like ours upon a recognition of upon an imaginary basis; the first fibres of of justice, of faith, of beneficence, of honits roots can be traced backward into the or, of liberty and of constancy, are imperdarkness of primeval liberty ; its growth ishable governments; and die only with has been gradual through many centuries, the races which gave birth to them,






All other governments are liable to re sense of its own character, and attributes, volution, and to one or both of the and duty, the Supreme Court will declare fruits of revolution, the despotism of a its own incompetency to enact laws or multitude or the despotism of an indi- construct policies. It will say to those vidual.

legislators who attempt to impose their If we fall then into either of these ex own duties upon its shoulders, “You tremes, it must be when the great majority alone are competent to this decision; it is of those who study the wants of the peo- not for us to express the will of the people, and act for them in the business of ple, or to regulate the public economy. legislation, become so far blinded to the Where there is law, either evident or to moral necessities of those whose opinions be liberally or morally constructed, we can they guide and influence, as to substitute point it out or construct it, but we cannot for them scientific theories, the dreams of make it. When the law is clear and the humanitarianism, or the schemes of their application difficult we will aid you; but own ambition. Fortunately for us, the when the law does not exist, you must number of such citizens is so great, and look for its grounds in the genius of the their equality of will so level to the free people and the necessity of the times, and dom of all, there is little danger but not in our precedents. that all things shall long continue as they be appealed to for the construction of con

Nor can the authority of the Executive It is necessary to resort to the original stitutional law. In cases where neither grounds of our government, not only when law nor precedent can serve as guides, the we propose any alteration in its frame- Executive must indeed consult the spirit work, but whenever the lawfulness of of the nation; but should that system be new measures is contested, upon the argu- pursued—into which of late we have too ment that they are not specifically sanc much fallen—the electing of a president tioned by the language of the Constitu- for the declared purpose of enforcing contion. A measure once contested upon tested constructions of the Constitution, that argument will be always contested, the day must come when all law shall lie and will remain undecided ; majorities at the mercy of executive construction ; cannot decide upon the sense of the Con- and the executive of to-day must become stitution ; since neither principles nor fun- in that event the source of all power, undamental laws are established by majori- til, after a period of four years, its authorties. New measures, therefore, not clearly ity is annihilated by another executive. unconstitutional, and of which the consti- By allowing the opinion of an executive tutionality or its contrary, remain in per- to have any weight beside that which petual uncertainty and agitation, even in the character of worth and wisdom may courts of law, must be adopted or rejected bring with it, we admit the existence of by the representatives of the people, by a new legislative power, not recognized mere majorities; not by forced construc- by the Constitution ; a legislative power tion, since that is met by counter con which lessens with its increase the efficacy struction; nor, except for the clear con of regular legislation, and which must, struction of a law, or the showing of the eventually, absorb everything to itself. spirit of a law, can such questions be re True it is, the Executive has been entrustferred to the supreme judiciary of the na ed with a power of forbidding a hasty and tion. Judgment is of no party, and makes clearly unconstitutional legislation ; but no laws; nor does it impose measures or this power was given to the Executive, not recommend policies. Neither laws, nor as a law-making, but only as a regulative forced construetions of laws, establishing function. Legislative bodies may move principles of national economy or policy, precipitately, and illegally, since even their can ever emanate from tribunals appointed existence and conduct is limited by the by the Executive. Under the weight of supreme law of the land ; nor are they such responsibilities the highest court of free themselves from an ambition which justice would lose its character, and be leads them continually to encroach upon come an instrument of faction or of ex the functions of other members of the sysecutive usurpation. Inspired by a right | tem. It is necessary that every member

of a constitutional government should be be inevitably referred for a decision to the armed with a power of resistence suffi- well-ascertained opinion of the day. cient for its own preservation; nor do

For the formation of our own opinions, those

powers which have been granted by we must go back to first principles, as we the Constitution to each member of the may suppose them to have lain in the government, exceed what is necessary to minds of our founders; and deduce, as their independent existence. There could they deduced, opinions of the propriety hardly, nevertheless, be observed a more or impropriety of what is proposed. Let fatal symptom, either in the conduct of a this be done by each succeeding generagovernment or of a party, than a disposi- tion, and there will arise in time, out of the tion manifested by them to allow the en united arguments and experience of many croachment of executive upon judicial or succeeding generations, a system of polity legislative power. As it would be impos- filling out the original design of our sible to over-estimate the dangers which founders, extending the power of the might follow upon an absorption of the Constitution where it is inoperative, interpower of the government by the legisla- preting its silence, and, in fine, executing tive body, aiming at its own aggrandize its intention in its own peculiar spirit. ment and the diminution of executive and Had the fathers inserted in that instrujudicial responsibility, so it would be ment any clause that might confer upon equally impossible to overrate the perils, the general government, the power of not only to State liberties, but even to in- engaging in works of prospective imdividual rights, from the repeated election provement, it would have exceeded its of a president, chosen, not for the admin intention, and have incurred the danger istration of the laws, but for enforcing of violation by encroaching upon the new and partial constructions of those laws. changeable sphere of opinion.

When, therefore, we are called upon to If a class of powers had been given by examine the merits of new measures, it, under the general head of progress and either of public economy or of national improvement, authorizing Congress to apenterprise, we must withdraw ourselves propriate funds for scientific expeditions, from the atmosphere of interest; we must for the planting of colonies, for the conendeavor to place ourselves in sympathy struction of telegraphs, for the establishwith the genius and spirit of the nation. ment of colleges and schools of science, If the Constitution is silent or obscure for architectural outlay, for national roads, upon a point of authority or competency, for the protection of commerce ; if a and we are pressed for a decision, there clause had been inserted in the Constiremains no other course but to go back to tution providing for works intended to our origin, and from that to trace the rise increase the value of public lands, by of our polity; to observe what courses railroads opening the western territories, have led to aggrandizement, to peace, and by the construction of harbors for the augprosperity, regarding always the fundamentation of trade, by naval expeditions mental laws as barriers and limits within to extend our commerce in the southern which we are free to act, in all cases, as and eastern seas; had these powers been it may seem best for the nation. The directly conferred, together with an inConstitution does not provide for nor junction upon congress to protect our establish a system of political economy; agriculture and our manufactures by tarit neither sustains nor forbids a tariff or a iffs, to collect the dues of government in free trade, a bank or a sub-treasury, the silver and gold, and to establish some annexation of a State, or the extension of particular form of bank or treasury, it public aid to national enterprises. It would not have the force, encumbered does not forbid the establishment of with such details, that it now has, as a slavery in new territories, nor does it body of fundamental law, fixing the command such an establishment. All framework merely, and unchangeable questions of this nature creating parties, powers of the government; leaving to the whose majorities change from year to majority of the nation to determine for year, and whose opinions vary, as passion itself, from time to time, what works it will and enthusiasm and interest compel

, must engage in, and what economy it will use.

We conceive that the great error of our extend aid to every species of enterprise politics has thus far lain in a continual that seemed likely to increase the wealth reference to the Constitution for decisions of the nation. We should, therefore, be in cases of mere expediency and policy, the last to advise any alteration or not contemplated by that instrument. amendment of the fundamental law; we Fundamental laws cannot be established, would not, with President Monroe, reor rather, will not stand, if they are made commend that a general sanction of the to specify what shall, or shall not be done, policy of internal improvements be incorin the detail of national economy. They porated in the Constitution, since that do not point out the aims, they do not would be to make law the slave, instead of designate the purposes, the objects, but the guide and master of opinion ; and show only the right and wrong, the rules, would be a step toward alteration and and fixed forms of public conduct. I am decline. It must be reckoned among the not assisted by the moral law in resolving dangers to which the State is always whether to engage in commerce or in liable, engaging too far, or in too great manufacture; nor can the laws of the a number of enterprises. We prefer to land determine whether the people shall draw all arguments for expenditure from become farmers or artisans. That is a bar- its evident necessity and propriety, and barous and unrefined minuteness in a State not from any amendments which ourselves constitution, which regulates the method have procured to the Constitution. of its treasury, the extent of its territory, We do not wish to tamper with that or the shape or extent of its taxation. It venerable instrument.

It would be a preis, perhaps, the most striking instance of cedent full of danger and ill omen. human wisdom upon record, that our found If there be a point of policy upon

which ers carefully abstained from even nam Considerate men of all parties will agree, ing what is transient in government, and it is on this of the inviolability of the Conthat they introduced into that instrument stitution. such things only as must always be ob- Ours is not yet a prescriptive Constiserved while the nation continues to be a tution, “whose sole authority is, that it republic.

has existed time out of mind.” At a In another view, and for other reasons, moment of our history when the equal we are to rejoice that we have a Constitu- necessity of an union of all the citizens, tion so liberal and so reserved. IIad any and the preservation of State liberties beparticular line of policy been recom came intensely apparent, it sprang into mended as beneficial by the fathers, and life (almost perfect in its form) from the the recommendation clothed in the solemn brain of wisdom—a wisdom wbich, takand authoritative language of law, it ing into view all the circumstances of would have given an unnatural force in the time, and being itself personally, a that direction; it would have given one part of those circumstances, took the midparty too great an advantage over its dle results of all—a method which left opposite. Had it been a recommendation everything incomplete in the detail, and to engage in enterprises of improvement, gave only the forms and generalities; not our strong overruling tendency toward pretending to recommend particular poli

and splendid achievements would cies, but providing against the influence of have swept us like a torrent to our ruin. any one bias, interest or policy, whose exWith the Constitution clearly for us, that cess might weaken the system of the tendency would have been irresistible. whole. This form, impressed upon the We have seen how far we may be led government, and upon the nation at its toward ruin by a misstep in negotiation; birth, when a vigorous life presided in it, and, from this single instance, we may cannot, without great danger, be altered judge into what excesses we may yet be or disturbed, as its provisions were the plunged by a legislature acting under results of a deliberation, not upon any arbitrary constructions of the Constitu- transient circumstances and necessities, but tion; and if forced construction, even, upon those which are fixed and lasting ; have this power, what might we not have it can be altered and amended only by a to fear from a general precept, advising to wisdom, equal to that which constructed


it, in a position of equal dignity, and with priation of public moneys to the improvean equal moderation, calmness, and unan ment of national harbors, to the removal imity. But in discussing the system of of snags from rivers, to the construction our national economy, on the other hand, of telegraphs or national railroads, we are we have to consider the exigency of the not, therefore, to conclude, that these time only—the wants, desires and aspira- measures are unconstitutional, nor are we to tions of the age—the particular benefit or ask, with President Monroe, for an amendinjury balanced against the general inter- ment to the Constitution authorizing such est. All this we have to consider in the appropriations. We are to inquire only light of that system of polity which has whether the government was established been established by the experience of our with full powers to do all that is required predecessors.

for the common good of all, and for the It was not possible, in the nature of common weal; and next, are we to satisfy things, for the fathers to have specified all ourselves that the measures proposed and every power of the general govern are enterprises of national benefit, and ment, to the exclusion of all others not of a magnitude exceeding the power of named by them, but nevertheless neces any individual, or of a State, to accomplish. sary to the existence and prosperity of the

Nor will it be a sufficient objection to nation. It might become proper, in a any such measure, that its benefits will moment of extreme necessity, for the peo- not be immediately felt, in an equal deple, acting through their representatives, gree, over all parts of the Union. A railto invest the President with a dictatorial road connecting New Mexico with the power. It might become necessary for Southern States might indeed, be esteemed the same body, as the immediate agents an enterprise of much greater benefit to and defenders of private liberty, to assume

the southern than to the northern memfor themselves a certain executive authori-bers of the Union. ty. It might become necessary for the A series of harbors along the northern general government to suffer for a while frontier might increase the trade of the unlawful encroachments upon its own au North and West, while it conferred only a thority. It might be deemed expedient partial and remote advantage upon the to allow that clause of the Constitution South. Appropriations for improvements which "guaranties a republican govern- must be equitably distributed with a proment” to every State of this Union, or, in per regard to the commerce, the agriculother words, to every citizen of this nation; ture, and the defense of every part of the to rest unapplied, where it seemed proper Union. The farmer cannot, at once, and for the peace of all concerned, that cer- by one vast outlay, bring every acre of tain men, or bodies of men, should exclude his farm to that high perfection which themselves from the privileges of free- it will attain in time, after many years men. Many cases will arise where a para- of a divided and distributed care. Nor mount necessity will supercede that in can he, by a thin and feeble manuring of ferior necessity which gives its ordinary the whole, through successive seasons, form and power to the government; nor produce that desired fertility which he could the fathers have foreseen and pro- may communicate by confining his outlay vided for that vast increase of territory and his labor for a time to separate porwhich has raised the Union to the rank of an tions. imperial power, and has given us a dominion, and may yet farther extend that do

The Senate. minion over nations incapable of free institutions.

The house represents the people; in Still less could they have foreseen by number, and in aggregate as individuals, what courses, in particular ages, the wealth and as a nation. Certain persons are perof the nation might be increased. mitted by law, under certain restrictions,

When, therefore, we have examined the to select the members of the House. powers of the general government, and These persons so permitted, and under have not been able to discover among such restrictions, (i. e. voters,) represent them any clauses authorizing the appro- the interests of families, individuals, busi


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