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ment. Is it to be supposed that charter, the right of the States to the States could ever have de- interpose, was as full and comsigned to leave to a court to be plete as before the Constitution created by the Federal Govern
was formed. It was plenary then, ment the right to decide on the and of course
must be plenary extent of its powers. Such a now. course would have been suici
This collision of opinion bedal and destructive to their in- tween the two Governments did dependence.
not necessarily produce war. It After illustrating the positions, was the common case of differMr H. proceeded to show that ence of opinion between soveCongress could not be the proper reigns as to the true construction judge of its own constitutional of a compact. In all such cases powers, and that the Constitution some mode must be devised to was framed chiefly with the de- settle the difficulty, and happily sign of confining the majority for us, the mode is clearly indicatwithin definite limits. Mr Hayne ed by the Constitution itself, and inferred from these premises that results from the form and structhe right of a State to judge of ture of the Government. The infractions of the Constitution on creating power is three fourths of the part of the Federal Govern- the States. By their decision the ment, resulted from the nature of parties to the compact have agreed the compact, and that such a pow- to be bound, even to the extent er is neither expressedly nor im- of changing the entire form of pliedly reserved exclusively to the Government, and it follows of the Federal Government, nor to necessity, that in cases of delibany of its departments.
erate and settled difference of He also contended, that the opinion between the parties to the power in question might be fairly compact, as to the extent of the considered as reserved to the powers of either, resorts must be States, by that clause of the Con- had to their common superiorstitution, providing that all powers (that power which may give any not delegated to the United States character it pleases to the Constiare reserved to the States respec- tution) viz., three fourths of the tively or to the people. Before States. the States entered into the com- This was Mr Jefferson's opinpact, (he said) they possessed to ion, and conforms to the doctrines the fullest extent, the right of de- of the famous Virginia resolutions termining the limits of their own and report of '98, and the Kenpowers.
tucky resolutions of 1799. Mr They had never parted with H. then contended that when a that right, nor agreed to limit or State had declared a law of Conrestrict it. They had agreed that gress to be unconstitutional, it certain specific powers should be could not go into effect until it exercised by the Federal Gov- had been sanctioned by three ernment; but the moment that fourths of the States. Government stepped beyond its If the nullifying State were
compelled to appeal to the three as safely entrusted to a State. fourth votes, in order to arrest She would always feel the necesthe law, she would be compelled sity of consulting public opinion 10 submit to the exercise of an both at home and abroad before unconstitutional power and it would she would venture to resort to be absurd to suppose that any such a measure, and as it was redress could be obtained upon only an extreme case that would such an appeal, even if a Siate justify the interposition, there were at liberty to make ii. would be no danger of any abuse
A majority of both Houses of of the power. Congress must sanction the law In reply to the call to show the before it could be passed, and practical effects of his doctrine, there was no probability of its Mr Hayne said that the right of being declared unconstitutional by a State being established, the ihree fourths of the States. À General Government, as a matter proposition too, to amend the Con- of course, was bound to acquiesce stitution, can only come from two in a solemn decision of the State thirds of the two Houses of Con- acting in its sovereign capacity, gress or from the legislatures of two until the people by an amendment tbirds of the States. A minority of the Constitution had decided therefore has no other mode of to the contrary. Until this obtaining redress. There is no solemn decision is thus reversed, danger of weakening the Union the Federal Government is bound in this manner. The Government not to resort to any means of is one of checks and balances, coercion against the citizens of and it is in the true spirit of the the dissenting States. All colsystem, that the States should have lision is thus prevented. But if the power to check the Federal a law unconstitutional in the opinGovernment, so far as to preserve ion of the citizens of any one the Constitution from gross, pal- State, should be carried into effect pable, and deliberate violations,' even with the concurrence of all and to compel an appeal to the the branches of the Federal Govamending power in cases of real ernment, collision must ensue. doubt and difficulty.
The juries in the dissenting State This check is by far the safest would not give effect to the unand least liable to abuse, of any constitutional law, and unless they provided by the Constitution. À could be coerced by the bayonet, quorum of the Supreme Court, the law would be in effect nullican, by a bare majority, consisting fied. The difference between only of three judges, declare å the Senator from Massachusetts law to be unconstitutional. and himself respecting a clear
Mr H. said that without mean- violation of the Constitution which ing to detract from that high tri- ought to be resisted, was, that he bunal, for whose decisions when advocated upon the principles of confined to their appropriate revolution and he (Mr Hayne) sphere (questions in law equity') upon those of constitutional rehe had great respect, he thought sistance. He would make force that that delicate power might be the only arbiter in cases of colli
sion between the Federal and Constitution on the basis of a State Governments, while he compact, the gentleman considers (Mr Hayne) would resort to a the States as parties to that compeaceful remedy, the interposition pact; but as soon as his compact of the States to arrest the pro- is made, then he chooses to congress of the evil, until a conven- sider the General Government, tion called according to the Con- which is the offspring of that comstitution should determine the dis- pact, not its offspring, but one of pute.
its parties; and so, being a party, In reply to this argument Mr has not the power of judging on Webster said, that the argument the terms of the compact. In of Mr H. consisted of two pro- what school is such reasoning as positions, and an inference. His this taught? propositions are
Jf the whole of the gentleman's 1. That the Constitution is a main proposition were conceded compact between the States. to him, that is to say — that the
2. That a compact between Constitution is a compact between two, with authority reserved to one States, the inferences, which he to interpret its terms, would be a draws from that proposition, are surrender to that one of all power warranted by no just reason. Bewhatever.
cause, if the Constitution be a 3. Therefore, (such is his in- compact between States, still, that ference) the General Government Constitution, or that compact, has does not possess the authority to established a government, with construe its own powers.
certain powers; and whether it Now, sir, who does not see, be one of those powers, that it without the aid of exposition or shall construe and interpret for itdetection, the utter confusion of self, the terms of the compact, in ideas, involved in this, so elaborate doubtful cases, can only be deand systematic argument.
cided by looking to the compact, The Constitution, it is said, is a and inquiring what provisions it compact between States ; the contains on this point. Without States, then, and the States only, any inconsistency with natural reaare parties to the compact. How son, the Government, even thus comes the General Government created, might be trusted with this itself a party? Upon the bonora- power of construction. The exble gentleman's hypothesis, the tent of its powers, therefore, must General Government is the result still be sought for in the instruof the compact, the creature of ment itself. the compact, not one of the par- If the old Confederation had ties to it. Yet the argument, as contained a clause, declaring that. the gentleman has now stated it, resolutions of the Congress should makes the Government itself one be the supreme law of the land, of its own creators.
It makes it a any State law or constitution to party to that compact, to which it the contrary notwithstanding, and swes its own existence.
that a committee of Congress, or For the purpose of erecting the any other body created by it,
should possess Judicial powers, tion to be a compact, yet here are extending to all cases arising un- its terms, and how does the gender resolutions of Congress, then tleman get rid of them? He canthe power of ultimate decision not argue the seal of the bond, would have been vested in Con- nor the words out of the instrugress, under the Confederation, ment.
Here they are - what although that Confederation was
answer does he give to them? a compact between States. And None in the world, sir, except, that for this plain reason : that it would the effect of this would be to have been competent to the states, place the States in a condition of who alone were parties to the inferiority; and because it results, compact, to agree, who should from the very nature of things, decide in cases of dispute arising there being no superior, that the on the construction of the com- parties must be their own judges ! pact.
Thus closely and cogently does For the same reason, sir, if I the honorable gentleman reason were now to concede to the gen- on the words of the Constitution. tleman his principal propositions, The gentleman says, if there be viz. that the Constitution is a com- such a power of final decision in pact between States, the question the General Government, he asks would still be, what provision is for the grant of that power. made, in this compact, to settle Well, sir, I show him the grant points of disputed construction, or I turn him to the very words - I
-1 contested power,
that shall come show him that the laws of Coninto controversy ? and this ques- gress are made supreme; and tion would still be answered, and that the Judicial power extends, conclusively answered, by the by express words, to the interpreConstitution itself. While the tation of these laws. Instead of gentleman is contending against answering this, he retreats into the construction, he himself is setting general reflection, that it must reup the most loose and dangerous sult from the nature of things, construction. The Constitutio that the States, being parties, must declares, that the laws of Con- judge for themselves. gress shall be the supreme law of I have admitted, that if the the land. No construction is Constitution were to be considered necessary here. It declares, also, as the creature of the State Govwith equal plainness and precision, ernments, it might be modified, that the Judicial power of interpreted, or construed, accordUnited States shall extend to every ing to their pleasure. But even case arising under the laws of in that case, it would be necessary Congress. This needs no con- that they should agree. One, struction. Here is a law, then, alone, could not interpret itc onwhich is declared to be supreme: clusively ; one, alone, could not and here is a power established, construe it; one, alone, could which is to interpret that law. not modify it. Yet the gentleNow, sir, now has the gentleman man's doctrine is, that Carolina, met this ? Suppose the Constitu- alone, may construe and interpret
that compact, which equally binds it is as all the People of the all, and gives equal rights to all. United States, that they establish
So then, sir, even supposing the ed the Constitution. So they deConstitution to be a compact be- clare ; and words cannot be tween the States, the gentleman's plainer than the words used. doctrine, nevertheless, is not main- When the gentleman says the tainable; because, first, the Gen- Constitution is a compact between
; eral Government is not a party to the States, he uses language exthat compact, but a Government actly applicable to the old Conestablished by it, and vested by federation. He speaks as if he it with the powers of trying and were in Congress before 1789. deciding doubtful questions; and, He describes fully that old state secondly because, if the Consti- of things then existing. The tution be regarded as a compact, Confederation was, in strictness, not one State only, but all the
a compact: the States, as States, States, are parties to that com- were parties to it. We had no pact and one can have no right other General Government. But to fix upon it her own peculiar that was found insufficient, and construction.
inadequate to the public exigenSo much, sir, for the argument, cies. The People were not satiseven if the premises of the gen-fied with it, and undertook to tleman were granted, or could be establish a better. They underproved. But, sir, the gentleman took 10 form a General Governhas failed to maintain his leading ment, which should stand on a proposition. He has not shown, new basis — not a confederacy, it cannot be shown, that the Con- not a league, not a compact bestitution is a compact between tween States, but a Constitution ; State Governments. The Con- a Popular Government, founded stitution itself in its very front, in popular election, directly rerefutes that : it declares that it is sponsible to the People themordained and established by the selves, and divided into branches, People of the United States. with prescribed limits of power, So far from saying that it is estab- and prescribed duties. They orlished by the Governments of the dained such a Government; they several States, it does not even gave it the name of a Constitusay that it is established by the lion, and therein they established People of the several States; a distribution of powers between but it pronounces that it is estab- this their General Government, lished by the people of the Uni- and their several State Governted States, in the aggregate. The ments. When they shall become gentleman says it must mean no dissatisfied with this distribution, more than the People of the sev- they can alter it. Their own eral States. Doubtless, the Peo- power over their own insirument ple of the several States, taken remains. But until they shall alter collectively, constitute the Peo- it, it must stand as their will, and ple of the United States; but it is equally binding on the General is in this, their collective capacity, Government and on the States.