Imagens das páginas
PDF
ePub

zappiness. But, at the same time, it is equally important o guard against too easy and frequent changes ; to secure due deliberation and caution in making them; and to follow experience, rather than speculation and theory. A government, which is always changing and changeable, is in a perpetual state of internal agitation, and incapable of any steady and permanent operations. It has a constant tendency to confusion and anarchy.

$ 417. In regard to the Constitution of the United States, it is confessedly a new experiment in the history of nations. Its framers were not bold or rash enough to believe, or to pronounce, it to be perfect. They made use of the best lights, which they possessed, to form and adjust its parts, and mould its materials. But they knew, that time might develope many defects in its arrangements, and many deficiencies in its powers. They desired, that it might be open to improvement ; and, under the guidance of the sober judgement and enlightened skill of the country, to be perpetually approaching nearer and nearer to perfection. It was obvious, too, that the means of amendment might avert, or at least have a tendency to avert, the most. serious perils, to which confederated republics are liable, and by which all have hitherto been shipwrecked. They knew, that the besetting sin of republics is a restlessness of temperament, and a spirit of discontent at slight evils. They knew the pride and "ealousy of state power in confederacies ; and they wished to disarm them of their potency, by providing a safe means to break the force, if not whelly to ward off the blows, which would, from time to time, under the garb of patriotism, or a love of the people, be aimed at the Constitution. They believed, that the power of amendment was, if one may so say, the safety-valve to let off all temporary effervescences and excitements; and the real effective instrument to control and adjust the movements of the machinery, when out of order, or in danger of self-destruction.

§ 418. Upon the propriety of the power, in some form, there will probably be little controversy. The only question is, whether it is so arranged, as to accon

plish its objects in the safest mode ; safest for the sta bility of the Government ; and safest for the rights and liberties of the people.

$ 419. The Constitution has adopted a middle course. It has provided for amendments being made ; the mode is easy ; and at the same time, it secures due deliberation, and caution. Congress may propose amendments, or a convention of the States. But, in any amendment proposed by Congress, two thirds of both Houses must concur ; and no convention can be called, except upon the application of two thirds of the States. When amendments are proposed in either way, the assent of three fourths of all the States is necessary to their ratification. And, certainly, it may be said with confidence, that if three fourths of the States are not satisfied with the necessity of any particular amendment, the evils, which it proposes to remedy, cannot be of any general or pressing nature. That the power of amendment is not, in its present form, impracticable, is proved by the fact, that twelve amendments have been already proposed and ratified.

§ 420. The proviso excludes the power of amendment, until the year 1808, of the clauses in the Constitution, which respects the importation and migration of slaves, and the apportionment of direct taxes. And as the equality of the Representation of the States in the Senate might be destroyed by an amendment, it is ex pressly declared, that no amendment shall deprive any State, without its consent, of its equal suffrage in that body.

CHAPTER XXXV.

Public Debt.Supremacy of the Constitution, and Laws

$ 421. The first clause of the sixth article is, “AL debts contracted, and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States, under this Constitution, as under the

Confederation.” This can scarcely be deemed more than a solemn declaration of what the public law of nations recognizes as a moral obligation, binding on all nations, notwithstanding any changes in their forms of Government. It was important, however, to clear away all possible doubts, and to satisfy and quiet the public creditors, who might fear, that their just claims upon the Confederation might be disregarded or denied.

§ 422. The next clause is, “ This Constitution, and the Laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land. And the judges in every State shall be bound thereby, any thing in the Constitution, or laws of any State, to the contrary notwithstanding." The propriety of this power results from the very nature of the Constitution. To establish a National Gova ernment, and to affirm, that it shall have certain powers ; and yet, that in the exercise of those powers it shall not be supreme, but controllable by any State in the Union, would be a solecism, so mischievous, and so indefensible, that the scheme could never be attributed to the framers of the Constitution, without manifestly impeaching their wisdom, as well as their good faith. The want of such an effective practical supremacy was a vital defect in the

abolishing it. It would be an idle mockery, to give pow. ers to Congress, and yet at the same time to declare, that those powers might be suspended or annihilated, at the will of a single State ; that the will of twenty-five States should be surrendered to the will of one. A government of such a nature would be as unworthy of public confidence, as it would be incapable of affording public frotection, or private happiness.

§ 423. In regard to treaties, there is equal reason, why they should be held, when made, to be the supreme law of the land. It is to be considered, that treaties constitute solemn compacts of binding obligation among nations ; and unless they are scrupulously obeyed, and enforced, no foreign nation would consent to negotiate with us; or if it did, any want of strict fidelity, on our part, in the discharge of the treaty stipulations, would be visited by reprisals, or by war. It is, therefore, indispensable, that they should have the obligation and force of a law, that they may be executed by the judicial power, and be obeyed like other laws. This will not prevent them from being cancelled, or abrogated, by the nation, upon grave and suitable occasions ; for it will not be disputed, that they are subject to the legislative power, and may be repealed, like other laws, at its pleasure ; or they may be varied by new treaties. Still, while they do subsist, they ought to have a positive binding efficacy, as laws, upon all the States, and all the citizens of the States. The peace of the nation, and its good faith, and moral dignity, indispensably require, that all State laws should be subjected to their supremacy. The difference between considering them as laws, and considering them as executory, or executed contracts, is exceedingly important in the actual administration of public justice. If they are supreine laws, courts of justice will enforce them directly in all cases, to which they can be judicially applied, in opposition to all State laws, as we all know was done in the case of the British debts, secured by the treaty of 1783, after the Constitution was adopted. If they are deemed but solemn compacts, promissory in their nature and obligation, courts of justice may be embarrassed in enforcing them, and may be compelled to leave the redress to be administered through other departments of the Government. It is notorious, that treaty stipulations (especially those of the treaty of peace of 1783) were grossly disregarded by the States under the Confederation. They were deemed by the States, not as laws, but like requisitions, of a mere moral obligation, and dependent upon the good will of the States for their execution. Congress, indeed, remonstrated against this construction, as unfounded in principle and justice. But their voice was not heard. Power and right were separthe argument was all on one side ; but the

[ocr errors]

power was on the other. It was probably to obviate this very difficulty, that this clause was inserted in the Constitution :

ated ;

would redound to the immortal honor of its authors, if it wvd done no more, than thus to bring treaties within the sanctuary of justice, as laws of supreme obligatior. There are, indeed, still cases, in which courts of justice can administer no effectual redress; for, when the terms of a stipulation import a contract, or when either of the parties engages to perform a particular act, the treaty addresses itself to the political, and not to the judicial, department; and the legislature must execute the contract, before it can become a rule for the courts.

$ 424. From this supremacy of the Constitution, and laws, and treaties, of the United States, within their constitutional scope, arises the duty of courts of justice to declare any unconstitutional law passed by Congress, or by a State legislature, void. So, in like manner, the same duty arises, whenever any other department of the National or State governments exceeds its constitutional functions. But the Judiciary of the United States has no general jurisdiction to declare acts of the several States void, unless they are repugnant to the Constitution of the United States, notwithstanding they are repugnant to the State Constitution. Such a power belongs to it only, wher it sits to administer the local law of a State, and acts sxactly, as a State tribunal is bound to act. But upon this subject it seems unnecessary to dwell, since the right of all courts, State as well as National, to declare unconstitutional laws void, seems settled beyond the reach of judicial controversy.

CHAPTER XXXVI.

Oath of Office.--Religious Test.--Ratification of the

Constitution.

§ 425 The next clause is, “The Senators and Representatives before mentioned, (that is, in Congress,) and the members of the several State Legislatures, and all executive and judicial officers, both of the United States

« AnteriorContinuar »