What, sir, is the cure for this great evil? Nothing, but to enable the National Government to operate on individuals in the same manner as those of the States do.” Now, it is clear that in every country in which order is to reign there must be some tribunal, than which there is no higher, or the will of every man will be a law unto himself. If the Constitution was to be the "supreme law of the land,” who was authoritatively to interpret its provisions and decide their application? To this important question, therefore, the Constitutional Convention directed its earnest attention, and to its consideration Madison brought the results of very mature study. We find in a letter to Washington, some months before, an opinion thus expressed: "The National supremacy ought also to be extended, as I conceive, to the judiciary departments. If those who are to expound and apply the laws are connected by their interests and their oaths with the par -- 1 Eloquence of the United States, i. 26. Mr. Spence has used the former part of this quotation as if it had referred to the state of affairs as they exist under the Constitution. ticular States wholly, and not with the Union, the participation of the Union in the making of the laws may be possibly rendered unavailing. It seems, at least, necessary, that the oaths of the judges should include a fidelity to the general as well as local constitution, and that an appeal should lie to some National tribunals in all cases to which foreigners or inhabitants of other States may be parties." One of the first resolutions which the Convention adopted, in conformity with the recommendation of Congress, was,-"That a National Government ought to be established, consisting of a supreme Legislature, Executive, and Judiciary." But it was only after long and earnest discussion that the Judiciary was invested with the power to interpret the Constitution. At one time they had decided it should be placed with the National Legislature, with whom they declared ought to vest a power to "negative all laws passed by the several States contravening, in the opinion of the National Legislature, the Articles of Union, or any treaties made under the authority of 1 Life of Washington, ix. 518. 2 Hist. of the Const., CURTIS, ii. 22. 1 the Union." To this principle Madison at first assented. In the letter last quoted he had "proposed that the Federal Government should be armed with complete authority for for all cases requiring uniformity of taxation and the regulations of trade;" and he went still further:-" Over and above this positive power, a negative in all cases whatsoever on legislative acts of the States, as heretofore exercised by the kingly prerogative, appears to me absolutely necessary." Without this, he feared there would be invasion of the National jurisdiction, and discord among the States;2 and he afterwards, in Convention, suggested that such a power might be vested in the Senate. But he seems to have given up this idea for one equally effective, and likely to be more acceptable to the States. Curtis tells us that it was "at his suggestion a clause in Governor Randolph's plan, authorizing the use of force against a delinquent member of the Confederacy, was laid aside, in order that a 3 1 Idem, ii. 51. ELLIOTT, v. 139. 2 Life of WASHINGTON, ix. 517. Italics sic. system might be framed which would render it unnecessary. "This was the National Judiciary department.2 It is the third power in the Constitution, and exercises the same authority, within the limits of the Constitution, over the people of the United States, as the State Judiciary does over State subjects. It was thus intended to be the last appeal. All cases arising under the Constitution, in law or equity, may be referred to it. It cannot, indeed, exercise a veto upon a State law, even when in violation of the Constitution; but it can produce the 1 Hist. of the Constitution, CURTIS, ii. 62. 2 "It is a remarkable circumstance, that this provision was originally proposed by a very earnest advocate of the rights of the States, Luther Martin. His design, however, was to supply a substitute for a power over State legislation, which had been embraced in the Virginia plan, and which was to be exercised through a negative by the National Legislature upon all laws of the States contravening, in their opinion, the Articles of Union, or the treaties subsisting under the authority of the Union. The purpose of the substitute was to change a legislative into a judicial power, by transferring from the National Legislature to the Judiciary the right of determining whether a State law, supposed to be in conflict with the constitution, laws, or treaties of the Union, should be imperative or valid. By extending the obligation to regard the requirements of the national constitution and laws to the judges of the State tribunals, their supremacy in all the judicatures of the country was secured."-Hist. of the Constitution, CURTIS, ii. 374. same effect indirectly, inasmuch as a case arising under that law may be decided by it. The dignity of a State is therefore preserved, while its subordinate character is recognized. Nor was this negation of sovereignty any innovation on pre-existing arrangements. Under the Confederation, the separate States had entirely and for ever divested themselves of the right of deciding upon vexed questions arising out of its articles; and so complete was this surrender, that it was made irrevocable without the consent of the Legislature of every State.1 In like manner, it was provided that all disputes arising between. two or more States, from any cause whatever, must, as a last resort, be submitted to Congress, who were to appoint a special court for the purpose, whose "sentence or judgment was to be final and decisive." The more closely we compare the old Articles and the new Constitution, we shall find that in this, as in most other respects, the difference arises, not so much in any new powers granted to Congress, as in making the old powers effectual, 1 Vide Articles of Confederation 9 and 13, Appendix A. |