Chapter VII (2)

Is it not surprising that under a Constitution so constructed, exhibiting on its face such features, the idea should ever have been advanced that it was to the judicial power of the Government that its framers looked for the preservation of that sacred instrument? So far as it concerns the private rights of citizens and foreigners in questions of _meum and tuum_, growing out of the laws and Constitution of the United States, or controversies regarding the separate and special interests of contending States, or of the United States, and in respect to the rights of foreign ministers and consuls, it was intended to be supreme and so made, nor has its supremacy in all these respects ever been questioned. But it seems very absurd to suppose that it was intended to oblige the President of the United States,--the officer clothed with the whole executive power of the Government; the only officer, except the Vice-President, who is chosen by the whole people of the United States; the champion, designated by the Constitution itself to "preserve, protect, and defend" it in the performance of the executive duties committed to his charge,--duties affecting what Hamilton happily describes as "the general liberty of the people," to distinguish it from affairs of _meum and tuum_,--to keep his eye upon the Supreme Court calendar, and to gather from its decisions in respect to the private rights of parties litigant the measure of his constitutional powers, and to stop or go on in the execution of the important national offices assigned to his department as its judgments may be deemed to authorize or forbid his further proceeding. I can easily understand why a class of men, born with certain dispositions and trained to corresponding opinions, should desire such a construction of the Federal Constitution; but in the face of facts and considerations like these, I can find no explanation of the boldness with which so groundless a pretension has been advanced, other than in the recklessness by which the spirit of political encroachment is and will be characterized as long as it finds facilities for its gratification in the weakness or the passions of mankind. The deeper the subject is looked into, the more apparent to all _bonâ fide_ searchers for truth will become the fallacy of the principle which claims for the Supreme Court a controlling power over the other departments in respect to constitutional questions. Inquirers of this description cannot fail to appreciate the difficulty, nay the impossibility of reconciling Mr. Webster's unreserved admission of the President's "undoubted right in the exercise of his functions, when a bill is presented for his approval, to consider in all cases whether such a bill be compatible with the Constitution, and whether he can approve it, consistently with his oath of office," and to approve, or refuse to approve according to the result, with his severe denunciation of him for regarding an act as unconstitutional, which had been approved by one of his predecessors, but which he, notwithstanding, conscientiously believed to be unconstitutional, and for withholding the power of the executive from the execution of any such act. Everybody knows that an act which is contrary to the Constitution is a nullity, although it may have passed according to the forms of the Constitution. That instrument creates several departments, whose duty it may become to act upon such a bill, in the performance of their respective functions. The theory of the Constitution is that these departments are coördinate and independent of each other, and that when they act in their appropriate spheres they each have a right, and it is the duty of each to judge for themselves in respect to the authority and requirements of the Constitution, without being controlled or interfered with by their co-departments, and are each responsible to the people alone who made them for the manner in which they discharge their respective duties in that regard. It is not therefore to be presumed that that instrument, after making it the President's especial duty to take an oath to preserve and uphold the Constitution and prevent its violation, intended to deny to him the right to withhold his assent from a measure which he might conscientiously believe would have that effect, and to impose upon him the necessity of outraging his conscience, by making himself a party to such a violation. The Constitution, which was framed by great men, the form of which has been so much and so justly admired, is not so imperfect nor subject to such a reproach. The matter does not necessarily end with a refusal on the part of the executive to do an act which he believes Congress had no right, under the Constitution, to require his department to perform. Although the President, representing one of the three great departments of the Government, possesses in this respect a right which neither the citizen nor any other officer or officers of the Government, not having the control of such a department, can exercise, yet if he allows himself to be governed by unworthy motives he is liable to impeachment and expulsion from office. It is in this way, or by his removal by the people, that the wrong he does to the public is redressed. But this is not all. If the act has been passed according to the forms of the Constitution, and is judged to be constitutional by the judicial department of the Federal Government, it is obligatory upon the citizens, binds and controls their private rights and personal interests, and can be carried into effect in respect to those by the judiciary, which also judges for itself regarding the constitutionality of such law. It is the department by which laws, affecting as well the private rights of the citizen as those of the States, which can be made the subjects of litigation, are carried into effect. It has ample power conferred upon it to cause its judgments and decrees to be executed. Officers are appointed whose duty it is made by law to obey its orders, and these officers have the right given to call out the civil power of their respective districts to enable them to execute judicial decrees. Nor do the rights secured to it by the Constitution stop here. If resistance is offered to the execution of a judgment or decree--made by the proper court to which jurisdiction of the matter which such judgment or decree seeks to enforce is given by the Constitution--too great to be overcome by the civil power, it is the duty of the President, upon the request of the officers of the court, to order out the military power to sustain that of the judiciary. It would be no answer on his part to such a call to say that the right which the decree or judgment seeks to enforce arises under a law which he deems unconstitutional. That is, under the circumstances, a matter that he has no right to inquire into. The decision of that question has been delegated to a different department, and has by that department been decided differently. The Constitution requires that the judgments of that department, upon subjects committed to it, should be enforced. It makes that enforcement, in extreme cases, the duty of the military. The President is intrusted with the command of that force and, in such a case, his power in regard to it is ministerial only. It is his duty, in such a case, to sustain the judicial power by the aid of the military, and if he failed in its performance he would subject himself to impeachment and removal from office. Not only is the entire power of the government thus pledged to the maintenance of judicial authority, whilst acting in the line of its duties, but there lies no appeal from its judgments or decrees. They are final and obligatory upon the rights and interests of the parties. They can neither be reversed by any other tribunal, nor is it in the power of the remaining departments of the Government united to set them aside or to treat them as a nullity, however contrary to the Constitution they may be.

We are not without experience upon this point. Our history bears indelible record of the abuse of power in that form during the administration of the elder Adams. The unconstitutionality of the Sedition Law will now be scarcely controverted by any ingenuous mind. The Supreme Court, nevertheless, decided it to be constitutional, tried citizens for having violated its provisions, and caused fines and imprisonment to be inflicted upon them. When a majority of the Senate of the United States, friends of the bank, placed upon its journal an unconstitutional act of condemnation against President Jackson, for the steps he had taken to relieve the country from that institution, the same body, after its political complexion had been sufficiently changed through the influence of an offended public sentiment, not only reversed the sentence but expunged it from the record. This it had a right to do, because both acts were committed by the same branch of the same department. But the executive and legislative departments had no such power over the unconstitutional sentences that were pronounced under the Sedition Law, because they had no right to interfere with the acts of a coördinate department. The President had an express right to pardon such offenses, and the national legislature had a constitutional right to return the money collected from those who committed them, and they did so. But the judgments of the court remained, and will forever remain, unreversed. In England, judicial convictions, attainders, judgments of forfeitures of franchises, etc., may be reversed by act of Parliament, but no such interference by one department of the government with the authorized proceedings of a coördinate department are permitted by our Constitution, simply because the great departments of our Government are by the Constitution made coördinate and independent of each other. Can any reflecting mind, in view of these facts, doubt the sufficiency of the protection which that instrument provides for the personal rights of the citizen and for private interests of every description, or for a moment apprehend the disorganization of society described by Mr. Webster as a consequence of carrying into effect the principles avowed by President Jackson?

The judicial power of the Federal Government, according to the description here given of the binding force, the finality and efficiency of its decisions upon the parties and their rights in all cases which may be brought before it, answers all the purposes of its institution. Was it the intention of the framers of the Constitution that it should be clothed with other powers, and if so, what are they? The duties imposed on the executive and legislative departments are of higher importance than those of the judiciary, in proportion as the interests of the nation are of more consequence than the separate interests of individuals and minor associations. They include the question of peace or of war, and the maintenance of the latter, international obligations in the forms of treaties, their construction and execution, the regulation of foreign commerce and commerce among the States, the regulation of the currency, the establishment of a mint, the assessment and collection of the national revenue, the raising, regulating, and command of an army and navy, the establishment of a general and of particular post-offices, the regulation and protection of the Indian tribes, and many other duties which it is unnecessary to specify. In none of these is it contemplated by the Constitution that the judicial power shall take a part. The powers and duties of the other departments upon these subjects are to some extent specified in the Constitution, and the residue are left to the direction of the legislature which acts, in respect to them, through the Executive as the department especially charged with the execution of the laws. In the performance of their high duties these departments are, at almost every step, met by constitutional questions. The Houses of the legislature, in every law or resolution that they pass, have to consider whether it is authorized by the Constitution to which they have sworn to conform, and the President and Senate, when they make a treaty, are bound to consider and decide the same question. The President, as the sole depositary of the executive power, is under a similar obligation. His first inquiry is, whether the Constitution authorizes him to apply the power of his department to the execution of the business before him, or, if it is one of the numerous functions which the legislature is in the constant habit of calling upon him to perform, has the legislature power under the Constitution to direct the thing to be done, and can he do it consistently with his oath to preserve and uphold that instrument?

How are they to act in the decision of these questions? By what considerations are they to be controlled? They know that they are responsible to the people, under whose commission they act, for all they do. The Constitution does not give to one department the right to decide such questions for another, either in terms or by necessary implication, nor subject them to any other responsibility, nor place before them any guide for the government of their decisions other than their own discretion and their own consciences, and has caused to be placed upon their consciences an oath that they will, in no event, act contrary to that instrument. Under such circumstances, I ask, what are they to do? What can they do, consistently with the duty they owe to God, to their country, and to themselves, other than to decide such questions for themselves, following the dictates of their own judgment? Can it be believed that those who framed and adopted the Constitution intended to place these high functionaries,--the only representatives of the people, in the great departments of the government, over whose continuance in office the people possess control--to place them, in respect to their official acts, about which a constitutional question can be raised, under the guidance of a department over which the people possess no such control, to be regulated by its decisions in private actions, to which such functionaries are not parties, and of which decisions they are, notwithstanding, to take notice at their peril. If a system so anti-republican could have been designed by those who made the Constitution, is it to be supposed that they would have omitted to declare, on the face of the instrument, that such was their intention, leaving those functionaries to grope their way to its discovery. Such a question--one in which the character of our political institutions is so much involved, and upon a right understanding of which their ultimate safety may depend--should be stripped of every uncertainty. The claim set up for the Supreme Court must be good throughout, or it is not good at all. The principle, that the final decision of constitutional questions belongs exclusively to the supreme judicial tribunal, set up in Mr. Webster's speech, must be true throughout, or it cannot be true to any extent. It amounts to this: the incumbents of the legislative and executive departments, in respect to questions of constitutional power, are _ministerial officers only_. Constitutional questions are points in respect to which they have no right to exercise their own discretion, but are bound, at every important step, to look to the judiciary for guidance, and if they omit to adopt its decisions, if it has made any, they do so at their peril:--the former department at the hazard of having its laws, if the Supreme Court regard them as unconstitutional, treated as a nullity, not only when they are relied upon "in cases in law and equity," but in all cases, and everywhere. From the nature of their action, members of Congress do not subject themselves to personal responsibility, except when they act corruptly. But the situation of the incumbent of the executive department is less favorable. Deprived of all discretion, and bound to thus understand his position, he encounters personal responsibility, in certain cases, whichever way he may act. If he find a law upon the statute book, approved by one of his predecessors--and to relieve the country from which has perhaps been one of the reasons for the removal of the latter from office--a law which he deems unauthorized by the Constitution, but which the Supreme Court holds to be constitutional, he must either violate his oath of office and execute it, or refuse to do so and expose himself to impeachment for a failure in the discharge of his official duties. If he persists in the observance of a law which the Supreme Court has, in a private suit, held to be unconstitutional, he incurs a similar responsibility; and if he omits its observance, he does violence to his own conscience by failing to perform his official duties according to his oath. Let me illustrate this view of the subject by particular and possible cases. Take that referred to by General Hamilton in his papers written in defense of President Washington's proclamation of neutrality, over the signature of "Pacificus."

The President has power, by and with the advice of the Senate, to make treaties with foreign governments. Private rights, subject to judicial investigation, often grow out of public treaties. The interpretation and enforcement of these rights belong exclusively to the judiciary, and in the execution of its power it may hold the treaty, under which the claim arises, unconstitutional for any of the reasons for which laws may be so regarded. Its decision is binding and final upon the parties and their interests.

Then comes the execution of that treaty between the governments that are parties to it. This, on our part, belongs exclusively to the legislative and executive departments. The duty of the former is to pass the laws necessary to its execution, and that of the latter to see to their enforcement, and to do such other acts as he may do, under the Constitution, without a law.

A foreign government calls for the interference of these departments to redeem the national faith, pledged through executive instrumentality, and for the redemption of which the executive, and the legislature, where necessary, are the agents designated by the Constitution. They see and feel their duty, but have been rendered powerless. The Supreme Court has decided the treaty to be unconstitutional. No matter how obscure the parties by whom its interference was asked, no matter how unimportant the interest in respect to which the decision was made, from the moment it is promulgated, it becomes a rule of action for every department of the government, and every public functionary as well as every citizen. If the national legislature passes a law to carry into effect the void treaty its law becomes a nullity. If the executive issues an order for its execution, or toward the performance of the treaty in any way to his subordinates, they are not bound to obey it, and the Supreme Court will sustain them in their contumacy. If he take measures to enforce his authority, he makes himself amenable to that tribunal. Acting in such a matter as a ministerial officer only, without a right to employ his own discretion, he subjects himself to impeachment if he persists.

Alexander Hamilton--who, if he was not the one who suggested the latitudinarian doctrine of "implied powers," was certainly its most effective supporter, and through life its watchful guardian--in No. 1 of Pacificus, has said that though the judiciary department is charged with the interpretation of treaties, "it exercises this function only where contending parties bring before it a specific controversy;" that "it has no concern with pronouncing upon the external political relation of treaties between government and government;" that "this proposition is too plain to need being insisted upon;" that "it belongs to the executive department to exercise the function in question, when a proper case for it occurs," "as the _interpreter_ of the national treaties, in those cases in which the judiciary is not competent,--that is, between government and government; as the _power_ which is charged with the execution of the laws, of which treaties form a part; as that which is charged with the command and disposition of the public force."

James Madison, in conjunction with Hamilton and Jay, in the numbers of the "Federalist," avows doctrines at war with this assumption of power in the Supreme Court. Thomas Jefferson, whose anxious patriotism was always alive to such subjects, and the political thoughts and studies of whose life were exclusively directed toward the protection of human rights through the instrumentality of free governments, opposed the doctrine vehemently, from first to last, and long after his retirement from public life, its passions and excitements, expressed himself in regard to it, on different occasions, in terms which follow. In 1815, in answer to the direct question put to him by a citizen of Georgia, he says:--"The second question, whether the judges are invested with exclusive authority to decide on the constitutionality of a law, has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the executive or legislative branches. Questions of property, of character, and of crime, being ascribed to the judges, through a definite course of legal proceeding,--laws, involving such questions, belong, of course, to them, and as they decide on them ultimately and without appeal, they, of course, decide _for themselves_. The constitutional validity of the law, or laws, again prescribing executive action, and to be administered by that branch ultimately and without appeal, the executive must decide for _themselves_, also, whether, under the Constitution, they are valid or not. So, also, as to laws governing the proceedings of the legislature; that body must judge _for itself_ the constitutionality of the law, and, equally, without appeal or control from its coördinate branches. And, in general, that branch which is to act ultimately, and without appeal, on any law, is the rightful expositor of the validity of the law, uncontrolled by the opinions of the other coördinate authorities." Again, so late as 1819, in a very interesting letter to Judge Spencer Roane, he says:--"My construction of the Constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal.... But you intimate a wish that my opinion should be known on this subject. No, dear Sir, I withdraw from all contests of opinion and resign every thing cheerfully to the generation now in place. They are wiser than we were, and their successors will be wiser than they, from the progressive advance of science. Tranquillity is the _summum bonum_ of age. I wish, therefore, to offend no man's opinion, nor to draw disquieting animadversions on my own. While duty required it, I met opposition with a firm and fearless step. But loving mankind in my individual relations with them, I pray to be permitted to depart in their peace, and, like the superannuated soldier, '_quadragenis stipendiis emeritis_,' to hang my arms on the post."

Mr. Jefferson, in these letters, speaks of his uniform opposition to the opposite doctrine, and refers to the inconvenience that may at times arise from conflicting decisions. But that, he thought, might be safely dealt with through the prudence of public functionaries, and he names instances when they were so treated: one in England, where an instance of difference occurred, in the time of Lord Holt, between the judges of England and the House of Commons; and another in this country, when a difference of opinion was found to exist between the Federal Judiciary and the House of Representatives. The Supreme Court decided, in a case of _meum and tuum_, that William Duane was not a citizen, and the House of Representatives, upon a question of membership, decided that William Smith, whose character of citizenship stood on precisely the same ground, was a citizen. These decisions were made in high party times, whilst the Federalists were in power. Duane was an Irishman, who had married into the family of Dr. Franklin, and was editor of the "Aurora," the most prominent Republican newspaper. Smith was an ardent Federalist from South Carolina, a man of good talents himself, but who delivered speeches in the House prepared by Hamilton in his closet, as was charged by Jefferson at the time, and has now been fully proved by the publication of Hamilton's private papers.

But the establishment of the constitutional rule sustained by Jefferson would not have saved the country from practical inconveniences, which he did not notice because he knew them to be unavoidable. A concession to the other great departments of the right to decide for themselves constitutional questions applicable to, and that necessarily arise in the discharge of, their official functions, still leaves them, to a serious extent, dependent upon the judicial power. Whilst it would exempt the incumbents from the penalty of impeachment when they act in good faith, they and their subordinates remain liable whenever their acts may be construed into an injurious interference with the property or personal rights of individuals, to be called before the judicial tribunal, to be there subjected to a different interpretation of the Constitution from that which they, or their superiors in authority, have placed upon it, and to be melted in damages for their public acts, however pure their motives may have been.

In a government, constructed like ours in some degree of conflicting parts, it is ever difficult, if not at times impossible, to prevent such a discrepancy, and those who framed ours, upon the whole, were wise in not attempting to do so. As a tribute to the personal rights of man and the security of private property, existing provisions go far to atone for whatever of individual injustice they may occasion. The legislative department has the power to indemnify those who suffer in this way and invariably does so when they have acted in good faith. The losses thus incurred by individuals, in the first instance, are in the end transferred to the whole community, which is abundantly remunerated by the benefits it derives from the system as a whole. Should a federal organization ever obtain which shall attempt, through an abuse of its power, to exert a dangerous influence over the Government, to an extent and in a way to arrest the attention of the people, they will neither be at a loss for a remedy nor fail in its adoption.

But to extend the control of the judiciary, through their decisions "in cases in law and equity," over the action of the other departments in the discharge of the duties assigned to them, for the extent and gravity of which we have only to look to the Constitution, and which, for the most part, steer entirely clear of private and separate interests, would be a measure of a very different character. It was upon these public functionaries that the entire political power of the Federal Government was intended to be conferred, and to the limited tenure by which they held their offices and to their direct responsibility to the people that the latter have always looked for the means to control their action. It is upon this swift and certain responsibility they have hitherto relied for their ability to bring the government back, without great delay, to the republican track designed for it by the Constitution, whenever it might be made to depart from it through, the infidelity of their representatives. Truly says Mr. Jefferson, in one of his letters last referred to, "when the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power."

Nor have the people been slow to exert their powers to reform abuses which they honestly, whether erroneously or not, believed to exist, by displacing representatives whom they considered unfaithful, whenever the occasion has seemed to them of sufficient magnitude to call for its exercise. The commencement of the nineteenth century was made forever memorable in our political annals by a display of this power, and it was again exerted in 1828, in 1840, in 1844, and in 1852. The result of the election of 1848 was altogether occasioned by divisions in the Democratic party, and I feel that I venture nothing in attributing that of 1840 mainly to a mistake in the public mind, which it has since magnanimously acknowledged, and with that atonement I am more than satisfied.

But if the incumbents of the legislative and executive departments have no right to decide for themselves constitutional questions that arise in the performance of their official functions; if it be indeed true that the National Legislature, in discharging the important duties of laying and collecting taxes, duties, imposts, and excises; in borrowing money on the credit of the United States; in regulating commerce with foreign nations, and among the several States, and with the Indian tribes; in establishing uniform rules of naturalization and on the subject of bankruptcies; in coining money and regulating the value thereof, and of foreign coins, and fixing the standard of weights and measures; in providing punishment for counterfeiting the securities and current coin of the United States; in establishing post-offices and post-roads; in promoting science and useful arts; in constituting tribunals inferior to the Supreme Court; in defining and punishing piracies and felonies committed on the high seas and offences against the law of nations; in declaring war; granting letters of marque and reprisal, and making rules concerning captures on land and water; in raising and supporting armies; in providing and maintaining a navy; in making rules for the government and regulation of the land and naval forces; in providing for calling forth the militia to execute the laws of the Union, suppress insurrection and repel invasion; in providing for organizing armies and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States; in the exercise of exclusive jurisdiction in all cases whatsoever in the ten-mile-square and in the forts of the United States; and in making necessary and proper laws for carrying into execution the foregoing powers and all other powers vested by the Constitution in the Government of the United States, or in _any department_ or officer thereof: and that the President, in assuming command of the army or navy of the United States and of the militia of the several States, when called into their service; in making treaties by and with the advice of the Senate; and in the appointment of all the officers of the United States, with limited and specific exceptions, and in filling up all vacancies that may arise during the recess of the Senate; in receiving ambassadors and other public ministers; and in taking care that the laws be faithfully executed,--are both bound to look to the decisions, of the Supreme Court, "in cases of law and equity" that are brought before them, for the character and extent of their powers under the Constitution, and to be governed by them, what becomes of the distinguishing feature of Republican Government--the responsibility of the representative to the people for the faithful performance of his duties? A people so intelligent, and withal so just as ours, would surely never think of dismissing one branch of their public servants for acts in respect to which they had placed them under the absolute guidance of another branch. To single out one department from the rest by placing its incumbent under a special oath to protect and preserve the Constitution, and then to make it his duty to obey the directions of another in that very function, absolutely and unconditionally, would, I cannot but think, be going quite as far in that direction as the character of any people for justice and wisdom could bear.

To whom are the members of the Federal Judiciary responsible for the truthfulness of their constitutional expositions and for the wisdom of the steps they take to make them effectual? To no human being. They can only be displaced by impeachment and criminal conviction. That mere error of judgment, without positive proof of corruption, can never be made the basis of such a proceeding, is known to all. Is it not, then, most apparent that to place the fidelity to the Federal Constitution of the representatives of the people and of the States and of most of the effective officers employed in the conduct of public affairs, save only those that are of a judicial character, under the supervision of that department, is nothing less than to divest the Government of its republican features and to substitute in its place the control of an irresponsible judicial oligarchy--to make the Constitution a lie, and turn to mockery its most formal provisions, designed to secure to the people a control over the action of the Government under its authority? Is it not remarkable that a doctrine, so clearly anti-republican in its character and tendencies, should have been so long kept on foot under a system so truly republican as ours, and may we not trace its origin to the same inexhaustible fountain from whence have proceeded the most tenacious of our party divisions--an inextinguishable distrust, on the part of numerous and powerful classes, of the capacities and dispositions of the great body of their fellow-citizens?

The want of a proper respect for the people, as has been often said, was Hamilton's great misfortune. If he could have felt otherwise, he would have been a Republican. This distrust of the capacity and disposition of the masses, which had been the bane of his life, retained its hold upon his strong mind and ardent feelings when he bequeathed it to his political disciples, and it has been the shibboleth of their tribe ever since. In a large degree wealthy and proud of their social position, their fear of the popular will, and desire to escape from popular control, instead of being lessened, is increased by the advance of the people in education and knowledge. Under no authority do they feel their interests to be safer than under that which is subject to the judicial power, and in no way could their policy be more effectually promoted than by taking power from those departments of the Government over which the people have full control, and accumulating it in that over which they may fairly be said to have none.