In
my last, I shewed, that the judicial power of the United States under the first clause
of the second section of article eight, would be authorized to explain the constitution,
not only according to its letter, but according to its spirit and intention; and having this
power, they would strongly incline to give it such a construction as to extend the powers
of the general government, as much as possible, to the diminution, and finally to the destruction,
of that of the respective states.
I shall now proceed to shew how this power will operate in its exercise to effect these
purposes.
In order to perceive the extent of its influence, I shall consider,
First.
How it will tend to extend the legislative authority.
Second.
In what manner it will increase the jurisdiction of the courts, and
Third.
The way in which it will diminish, and destroy, both the legislative and judicial authority
of the United States.
First.
Let us enquire how the judicial power will effect an extension of the legislative authority.
Perhaps the judicial power will not be able, by direct and positive decrees, ever to direct
the legislature, because it is not easy to conceive how a question can be brought before
them in a course of legal discussion, in which they can give a decision, declaring, that
the legislature have certain powers which they have not exercised, and which, in consequence
of the determination of the judges, they will be bound to exercise.
But it is easy to see, that in their adjudications they may establish certain principles, which
being received by the legislature, will enlarge the sphere of their power beyond all bounds.
It is to be observed, that the supreme court has the power, in the last resort, to determine
all questions that may arise in the course of legal discussion, on the meaning and construction
of the constitution.
This power they will hold under the constitution, and independent of the legislature.
The latter can no more deprive the former of this right, than either of them, or both
of them together, can take from the president, with the advice of the senate, the power of
making treaties, or appointing ambassadors.
In determining these questions, the court must and will assume certain principles, from
which they will reason, in forming their decisions.
These principles, whatever they may be, when they become fixed, by a course of decisions,
will be adopted by the legislature, and will be the rule by which they will explain their
own powers.
This appears evident from this consideration, that if the legislature pass laws, which,
in the judgment of the court, they are not authorised to do by the constitution, the
court will not take notice of them; for it will not be denied, that the constitution
is the highest or supreme law.
And the courts are vested with the supreme and uncontroulable power, to determine, in
all cases that come before them, what the constitution means; they cannot, therefore,
execute a law, which, in their judgment, opposes the constitution, unless we can suppose they
can make a superior law give way to an inferior.
The legislature, therefore, will not go over the limits by which the courts may adjudge
they are confined.
And there is little room to doubt but that they will come up to those bounds, as often
as occasion and opportunity may offer, and they may judge it proper to do it.
For as on the one hand, they will not readily pass laws which they know the courts will
not execute, so on the other, we may be sure they will not scruple to pass such as they
know they will give effect, as often as they may judge it proper.
From these observations it appears, that the judgment of the judicial, on the constitution,
will become the rule to guide the legislature in their construction of their powers.
What the principles are, which the courts will adopt, it is impossible for us to say;
but taking up the powers as I have explained them in my last number, which they will possess
under this clause, it is not difficult to see, that they may, and probably will, be
very liberal ones.
We have seen, that they will be authorized to give the constitution a construction according
to its spirit and reason, and not to confine themselves to its letter.
To discover the spirit of the constitution, it is of the first importance to attend to
the principal ends and designs it has in view.
These are expressed in the preamble, in the following words, viz.
"We, the people of the United States, in order to form a more perfect union, establish
justice, insure domestic tranquility, provide for the common defence, promote the general
welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain
and establish this constitution," &c.
If the end of the government is to be learned from these words, which are clearly designed
to declare it, it is obvious it has in view every object which is embraced by any government.
The preservation of internal peace — the due administration of justice — and to provide
for the defence of the community, seems to include all the objects of government; but
if they do not, they are certainly comprehended in the words, "to provide for the general
welfare."
If it be further considered, that this constitution, if it is ratified, will not be a compact entered
into by states, in their corporate capacities, but an agreement of the people of the United
States, as one great body politic, no doubt can remain, but that the great end of the
constitution, if it is to be collected from the preamble, in which its end is declared,
is to constitute a overnment which is to extend to every case for which any government is
instituted, whether external or internal.
The courts, therefore, will establish this as a principle in expounding the constitution,
and will give every part of it such an explanation, as will give latitude to every department
under it, to take cognizance of every matter, not only that affects the general and national
concerns of the union, but also of such as relate to the administration of private justice,
and to regulating the internal and local affairs of the different parts.
Such a rule of exposition is not only consistent with the general spirit of the preamble, but
it will stand confirmed by considering more minutely the different clauses of it.
The first object declared to be in view is, "To form a perfect union."
It is to be observed, it is not an union of states or bodies corporate; had this been
the case the existence of the state governments, might have been secured.
But it is a union of the people of the United States considered as one body, who are to
ratify this constitution, if it is adopted.
Now to make a union of this kind perfect, it is necessary to abolish all inferior governments,
and to give the general one compleat legislative, executive and judicial powers to every purpose.
The courts therefore will establish it as a rule in explaining the constitution to give
it such a construction as will best tend to perfect the union or take from the state governments
every power of either making or executing laws.
The second object is "to establish justice."
This must include not only the idea of instituting the rule of justice, or of making laws which
shall be the measure or rule of right, but also of providing for the application of this
rule or of administering justice under it.
And under this the courts will in their decisions extend the power of the government to all
cases they possibly can, or otherwise they will be restricted in doing what appears to
be the intent of the constitution they should do, to wit, pass laws and provide for the
execution of them, for the general distribution of justice between man and man.
Another end declared is "to insure domestic tranquility."
This comprehends a provision against all private breaches of the peace, as well as against
all public commotions or general insurrections; and to attain the object of this clause fully,
the government must exercise the power of passing laws on these subjects, as well as
of appointing magistrates with authority to execute them.
And the courts will adopt these ideas in their expositions.
I might proceed to the other clause, in the preamble, and it would appear by a consideration
of all of them separately, as it does by taking them together, that if the spirit of this
system is to be known from its declared end and design in the preamble, its spirit is
to subvert and abolish all the powers of the state government, and to embrace every object
to which any government extends.
As it sets out in the preamble with this declared intention, so it proceeds in the different
parts with the same idea.
Any person, who will peruse the 8th section with attention, in which most of the powers
are enumerated, will perceive that they either expressly or by implication extend to almost
every thing about which any legislative power can be employed.
But if this equitable mode of construction is applied to this part of the constitution;
nothing can stand before it.
This will certainly give the first clause in that article a construction which I confess
I think the most natural and grammatical one, to authorise the Congress to do any thing
which in their judgment will tend to provide for the general welfare, and this amounts
to the same thing as general and unlimited powers of legislation in all cases.
This same manner of explaining the constitution, will fix a meaning, and a very important one
too, to the 12th [18th?] clause of the same section, which authorises the Congress to
make all laws which shall be proper and necessary for carrying into effect the foregoing powers,
&c.
A voluminous writer in favor of this system, has taken great pains to convince the public,
that this clause means nothing: for that the same powers expressed in this, are implied
in other parts of the constitution.
Perhaps it is so, but still this will undoubtedly be an excellent auxilliary to assist the courts
to discover the spirit and reason of the constitution, and when applied to any and every of the other
clauses granting power, will operate powerfully in extracting the spirit from them.
I might instance a number of clauses in the constitution, which, if explained in an equitable
manner, would extend the powers of the government to every case, and reduce the state legislatures
to nothing; but, I should draw out my remarks to an undue length, and I presume enough has
been said to shew, that the courts have sufficient ground in the exercise of this power, to determine,
that the legislature have no bounds set to them by this constitution, by any supposed
right the legislatures of the respective states may have, to regulate any of their local concerns.
I proceed, 2d, To inquire, in what manner this power will increase the jurisdiction
of the courts.
I would here observe, that the judicial power extends, expressly, to all civil cases that
may arise save such as arise between citizens of the same state, with this exception to
those of that description, that the judicial of the United States have cognizance of cases
between citizens of the same state, claiming lands under grants of different states.
Nothing more, therefore, is necessary to give the courts of law, under this constitution,
complete jurisdiction of all civil causes, but to comprehend cases between citizens of
the same state not included in the foregoing exception.
I presume there will be no difficulty in accomplishing this.
Nothing more is necessary than to set forth, in the process, that the party who brings
the suit is a citizen of a different state from the one against whom the suit is brought,
and there can be little doubt but that the court will take cognizance of the matter,
and if they do, who is to restrain them?"
Indeed, I will freely confess, that it is my decided opinion, that the courts ought
to take cognizance of such causes, under the powers of the constitution.
For one of the great ends of the constitution is, "to establish justice."
This supposes that this cannot be done under the existing governments of the states; and
there is certainly as good reason why individuals, living in the same state, should have justice,
as those who live in different states.
Moreover, the constitution expressly declares, that "the citizens of each state shall be
entitled to all the privileges and immunities of citizens in the several states."
It will therefore be no fiction, for a citizen of one state to set forth, in a suit, that
he is a citizen of another; for he that is entitled to all the privileges and immunities
of a country, is a citizen of that country.
And in truth, the citizen of one state will, under this constitution, be a citizen of every
state.
But supposing that the party, who alledges that he is a citizen of another state, has
recourse to fiction in bringing in his suit, it is well known, that the courts have high
authority to plead, to justify them in suffering actions to be brought before them by such
fictions.
In my last number I stated, that the court of exchequer tried all causes in virtue of
such a fiction.
The court of king's bench, in England, extended their jurisdiction in the same way.
Originally, this court held pleas, in civil cases, only of trespasses and other injuries
alledged to be committed vi et armis.
They might likewise, says Blackstone, upon the division of the aula regia, have originally
held pleas of any other civil action whatsoever (except in real actions which are now very
seldom in use) provided the defendant was an officer of the court, or in the custody
of the marshall or prison–keeper of this court, for breach of the peace, &c.
In process of time, by a fiction, this court began to hold pleas of any personal action
whatsoever; it being surmised, that the defendant has been arrested for a supposed trespass
that "he has never committed, and being thus in the custody of the marshall of the
court, the plaintiff is at liberty to proceed against him, for any other personal injury:
which surmise of being in the marshall's custody, the defendant is not at liberty to
dispute."
By a much less fiction, may the pleas of the courts of the United States extend to cases
between citizens of the same state.
I shall add no more on this head, but proceed briefly to remark, in what way this power
will diminish and destroy both the legislative and judicial authority of the states.
It is obvious that these courts will have authority to decide upon the validity of the
laws of any of the states, in all cases where they come in question before them.
Where the constitution gives the general government exclusive jurisdiction, they will adjudge
all laws made by the states, in such cases, void ab initio.
Where the constitution gives them concurrent jurisdiction, the laws of the United States
must prevail, because they are the supreme law.
In such cases, therefore, the laws of the state legislatures must be repealed, restricted,
or so construed, as to give full effect to the laws of the union on the same subject.
From these remarks it is easy to see, that in proportion as the general government acquires
power and jurisdiction, by the liberal construction which the judges may give the constitution,
will those of the states lose its rights, until they become so trifling and unimportant,
as not to be worth having.
I am much mistaken, if this system will not operate to effect this with as much celerity,
as those who have the administration of it will think prudent to suffer it.
The remaining objections to the judicial power shall be considered in a future paper.
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