with such powers only as equally affected the members of the community called the Union and to leave to the States all remaining powers. The greater part of the powers delegated to the general government relate directly or indirectly to two great divisions of authority; the one pertaining to the foreign relations of the country, the other of an internal character; the purposes for which the Constitution was formed being power, security and respectability without, and peace, tranquility and harmony within. Mr. Calhoun, in early political life, stated clearly our dual system. The American Union is a democratic federal republic—a political system compounded of the separate governments of the several States and of one common government of all the States, called the government of the United States. The powers of each are sovereign, and neither derives its powers from the other. In their respective spheres neither is subordinate to the other, but co-ordinate; and, being co-ordinate, each has the right of protecting its own powers from the encroachments of the other, the two combined forming one entire and separate government The line of demarcation between the delegated powers to the Federal government and the powers reserved to the States is plain, inasmuch as all the powers delegated to the general government are expressly laid down, and those not delegated are reserved to the States unless specially prohibited.
Much is said and written in praise of the British constitution, but, in large degree, it is intangible and indefinable. It exists in no exact form, except as contained in Magna Charta, Petition of Right and some other muniments of liberty. Elsewhere it is to be searched for in usage, tradition, precedent and public opinion, and chiefly consists in direct parliamentary control of the responsible heads of the great departments of state. Knowing how illusory and deceptive were constitutional guarantees, which existed only in repeatable statutes or the varying will of parliament, our ancestors preferred to repose on fixed definitions and asserted rights, embodied in organic law, having more dignity, permanence and sacredness than a mere municipal or statutory regulation. In proportion as power was liable to be abused, it was thought wise to impose and strengthen checks and restraints. If the judgment of the governing body be the only limit to its powers, then there is nothing to control that judgment or to correct its errors. The minority is relegated to the uncertain remedy of rebellion or revolution. Restrictions, however clear and ascertainable, if there be no right or power to enforce, will end in legislative omnipotence which makes useless a written constitution. True liberty demands severe restraints to prevent degeneracy into license and needs a discipline to be compelled by some exterior authority. It is absurd to make one's rights contingent upon the conscience or reason of another. There is but one safe rule to be adopted by those entrusted with ecclesiastical or civil power—if you do not wish to hurt me, put it out of your power to do so. If a government, or a department of a government, can interpret finally its own powers, or take without hindrance what powers it pleases, then it may as well have had originally all powers, without the mockery of a verbal limitation. Mr. Jefferson deprecated ‘usurpation of the powers retained by the States, interpolations into the compact, and direct infractions of it,’ and as late as 1825, solemnly asserted that though a dissolution of the Union would be a great calamity, submission to a government of unlimited powers would be a greater. Under our written Constitution, the powers of the government were distributed among several co-ordinate departments and instead of being left to be scrambled for were defined with such precision that generally each may ascertain its own, unless blinded by ambition or partisanship or selfishness. The jurisdiction of each is limited to certain enumerated objects, and this division, with checks and balances, was to prevent the evils Jefferson deplored, and which have always attended irresponsible and ill-defined authority.
As the written Constitution, with all its superiority to unwritten usage, is not self-executory, the practical and vital question continually arises, who is to guard and enforce its limitations and who is the ultimate arbiter in case of dangerous infractions? The famous Kentucky resolutions of 1798, drawn by Jefferson, affirm that the States composing the Union are not united on the principle of unlimited submission to their general government; that each State, while delegating certain definite powers to that government, reserved the residuary mass of right to their own self-government, and that the government created by the compact to which each State acceded as a State and is an integral party, was not made the exclusive or final judge of the powers delegated to itself, since that would have made its discretion and not the Constitution the measure of its powers. In 1799 he reaffirmed the declaration and added that the principle that the general government was the exclusive judge of the powers delegated to it stopped nothing short of despotism.
The favorite allegation of consolidationists is that the Constitution and the laws made in pursuance thereof are the supreme law of the land. No one questions that statement, but what is the Constitution, what laws are in pursuance thereof? The consequent assumption is that the Supreme court is the safe referee and the final judge. In all questions of a judicial nature of which the court has lawful cognizance, it is the final judge and interpreter, and there is no power in the government to which the court belongs to reverse its decisions or resist its authority, but the jurisdiction of the Federal courts is limited and the Federal judiciary is only a department of the government whose acts are called in question. Numerous instances of usurped powers might occur which the form of the Constitution could never draw within the control of the judicial department. The Supreme court might assume jurisdiction over subjects not allowed by the Constitution and there is no power in the general government to gainsay it. Charles Sumner, associated in the Northern mind with John Brown, as a semi-inspired apostle, spoke in 1854 in lofty scorn of according to the Supreme court the ‘power of fastening such interpretation as they see fit upon any part of the Constitution—adding to it, or subtracting from it, or positively varying its requirements—actually making and unmaking the Constitution; and to their work all good citizens must bow as of equal authority with the original instrument.’ Sometimes the court is divided, the dissenting judges possessing by universal concession the greater wisdom, more legal learning and ability; sometimes, not bound by its own judgment, the court reverses its decisions and stands on both sides of a question. ‘If the court itself be not constrained by its own precedents how can co-ordinate branches under oath to support the Constitution,’ and the creating States, ‘like the court itself, called incidentally to interpret the Constitution, be constrained by them?’ Sometimes to procure a reversal it is held that the court by action of Congress may hereafter be constituted differently, and we have a memorable precedent of the enlargement of the court and of the appointment of additional justices, whose opinions were well known in advance, in order to secure a reversal of the legal tender decision. Jefferson, in 1820, saw how by the silent and potential influence of judicial interpretation, the government was in great danger, and he wrote to Thomas Ritchie: ‘The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated fabric * * * a judiciary independent of a king or executive alone is a good thing, but independence of the will of the nation is a solecism, at least in a republican government.’ The powers reserved in the tenth amendment are not only reserved against the Federal government in whole, but against each department, the judicial as well as the legislative and executive. Otherwise the Federal sphere is supreme and the spheres of the States are subordinate. It cannot be tolerated for a moment that the Supreme court has the right to modify every power inhering in the State governments, or undelegated by the people, so as to exempt its own action from their influence. That would be to concentrate absolute sovereignty in the court. If the Federal government, in its entirety, has no authority in the last resort to judge of the extent of its own powers, how can a single department, even the Supreme court, have this authority? What folly for the States to reserve powers against the Federal government, if that government, in whole or in part, has the ultimate decision as to what was reserved! To the Supreme court all the jurisdiction which properly belongs is cheerfully yielded, but in it no more than in the other departments can be safely reposed the trust of ascertaining, defining or limiting the undelegated powers of the States.
History is said to be constantly repeating itself. This assumption of the Federal government, through all or either of the departments, to decide, ultimately and authoritatively, upon the character and extent of the grants and limitations of the Constitution, upon the powers it possesses, is a claim of absolute sovereignty and is not distinguishable from the unrepublican theory of the Divine Right, as expounded by Filmer and other such writers. Reduced to its real significance, it is practically