Certain it is, that popular, constitutional liberty, as we enjoy it, appears, in the present state of the world, as sure and stable a basis for government to rest upon, as any government of enlightened states can find, or does find. Certain it is, that, in these times of so much popular knowledge, and so much popular activity, those governments which do not admit the people to partake in their administration, but keep them under and beneath, sit on materials for an explosion, which may take place at any moment, and blow them into a thousand atoms.
Gentlemen, let any man who would degrade and enfeeble the national Constitution, let any man who would nullify its laws, stand forth and tell us what he would wish. What does he propose? Whatever he may be, and whatever substitute he may hold forth, I am sure the people of this country will decline his kind interference, and hold on by the Constitution which they possess. Any one who would willingly destroy it, I rejoice to know, would be looked upon with abhorrence. It is deeply intrenched in the regards of the people. Doubtless it may be undermined by artful and long-continued hostility; it may be imperceptibly weakened by secret attack; it may be insidiously shorn of its powers by slow degrees; the public vigilance may be lulled, and when it awakes, it may find the Constitution frittered away. In these modes, or some of them, it is possible that the union of the States may be dissolved.
But if the general attention of the people be kept alive, if they see the intended mischief before it is effected, they will prevent it by their own sovereign power. They will interpose themselves between the meditated blow and the object of their regard and attachment. Next to the controlling authority of the people themselves, the preservation of the government is mainly committed to those who administer it. If conducted in wisdom, it cannot but stand strong. Its genuine, original spirit is a patriotic, liberal, and generous spirit; a spirit of conciliation, of moderation, of candor, and charity; a spirit of friendship, and not a spirit of hostility toward the States; a spirit careful not to exceed, and equally careful not to relinquish, its just powers. While no interest can or ought to feel itself shut out from the benefits of the Constitution, none should consider those benefits as exclusively its own. The interests of all must be consulted, and reconciled, and provided for, as far as possible, that all may perceive the benefits of a united government.
Among other things, we are to remember that new States have arisen, possessing already an immense population, spreading and thickening over vast regions which were a wilderness when the Constitution was adopted. Those States are not, like New York, directly connected with maritime commerce. They are entirely agricultural, and need markets for consumption; and they need, too, access to those markets. It is the duty of the government to bring the interests of these new States into 208 the Union, and incorporate them closely in the family compact. Gentlemen, it is not impracticable to reconcile these various interests, and so to administer the government as to make it useful to all. It was never easier to administer the government than it is now. We are beset with none, or with few, of its original difficulties; and it is a time of great general prosperity and happiness. Shall we admit ourselves incompetent to carry on the government, so as to be satisfactory to the whole country? Shall we admit that there has so little descended to us of the wisdom and prudence of our fathers? If the government could be administered in Washington’s time, when it was yet new, when the country was heavily in debt, when foreign relations were in a threatening condition, and when Indian wars pressed on the frontiers, can it not be administered now? Let us not acknowledge ourselves so unequal to our duties.
Gentlemen, on the occasion referred to by the chair, it became necessary to consider the judicial power, and its proper functions under the Constitution. In every free and balanced government, this is a most essential and important power. Indeed, I think it is a remark of Mr. Hume, that the administration of justice seems to be the leading object of institutions of government; that legislatures assemble, that armies are embodied, that both war and peace are made, with a sort of ultimate reference to the proper administration of laws, and the judicial protection of private rights. The judicial power comes home to every man. If the legislature passes incorrect or unjust general laws, its members bear the evil as well as others. But judicature acts on individuals. It touches every private right, every private interest, and almost every private feeling. What we possess is hardly fit to be called our own, unless we feel secure in its possession; and this security, this feeling of perfect safety, cannot exist under a wicked, or even under a weak and ignorant, administration of the laws. There is no happiness, there is no liberty, there is no enjoyment of life, unless a man can say when he rises in the morning, I shall be subject to the decision of no unjust judge to-day.
But, Gentlemen, the judicial department, under the Constitution of the United States, possesses still higher duties. It is true, that it may be called on, and is occasionally called on, to decide questions which are, in one sense, of a political nature. 209 The general and State governments, both established by the people, are established for different purposes, and with different powers. Between those powers questions may arise; and who shall decide them? Some provision for this end is absolutely necessary. What shall it be? This was the question before the Convention; and various schemes were suggested. It was foreseen that the States might inadvertently pass laws inconsistent with the Constitution of the United States, or with acts of Congress. At least, laws might be passed which would be charged with such inconsistency. How should these questions be disposed of? Where shall the power of judging, in cases of alleged interference, be lodged? One suggestion in the Convention was, to make it an executive power, and to lodge it in the hands of the President, by requiring all State laws to be submitted to him, that he might negative such as he thought appeared repugnant to the general Constitution. This idea, perhaps, may have been borrowed from the power exercised by the crown over the laws of the Colonies. It would evidently have been, not only an inconvenient and troublesome proceeding, but dangerous also to the powers of the States. It was not pressed. It was thought wiser and safer, on the whole, to require State legislatures and State judges to take an oath to support the Constitution of the United States, and then leave the States at liberty to pass whatever laws they pleased, and if interference, in point of fact, should arise, to refer the question to judicial decision. To this end, the judicial power, under the Constitution of the United States, was made coextensive with the legislative power. It was extended to all cases arising under the Constitution and the laws of Congress. The judiciary became thus possessed of the authority of deciding, in the last resort, in all cases of alleged interference, between State laws and the Constitution and laws of Congress.
Gentlemen, this is the actual Constitution, this is the law of the land. There may be those who think it unnecessary, or who would prefer a different mode of deciding such questions. But this is the established mode, and, till it be altered, the courts can no more decline their duty on these occasions than on other occasions. But can any reasonable man doubt the expediency of this provision, or suggest a better? Is it not absolutely essential to the peace of the country that this power should exist 210 somewhere? Where can it exist, better than where it now does exist? The national judiciary is the common tribunal of the whole country. It is organized by the common authority, and its places filled by the common agent. This is a plain and practical provision. It was framed by no bunglers, nor by any wild theorists. And who can say that it has failed? Who can find substantial fault with its operation or its results? The great question is, whether we shall provide for the peaceable decision of cases of collision. Shall they be decided by law, or by force? Shall the decisions be decisions of peace, or decisions of war?
On the occasion which has given rise to this meeting, the proposition contended for in opposition to the doctrine just stated was, that every State, under certain supposed exigencies, and in certain supposed cases, might decide for itself, and act for itself, and oppose its own force to the execution of the laws. By what argument, do you imagine, Gentlemen, was such a proposition maintained? I should call it metaphysical and subtle; but these terms would imply at least ingenuity, and some degree of plausibility; whereas the argument appears to me plain assumption, mere perverse construction of plain language in the body of the Constitution itself. As I understand it, when put forth in its revised and most authentic shape, it is this: that the Constitution provides that any amendments may be made to it which shall be agreed to by three fourths of the States; there is, therefore, to be nothing in the Constitution to which three fourths of the States have not agreed. All this is true; but then comes this inference, namely, that, when one State denies the constitutionality of any law of Congress, she may arrest its execution as to herself; and keep it arrested, till the States can all be consulted by their conventions, and three fourths of them shall have decided that the law is constitutional. Indeed, the inference is still stranger than this; for State conventions have no authority to construe the Constitution, though they have authority to amend it; therefore the argument must prove, if it prove any thing, that, when any one State denies that any particular power is included in the Constitution, it is to be considered as not included, and cannot be found there till three fourths of the States agree to insert it. In short, the result of the whole is, that, though it requires three fourths of the 211 States to insert any thing in the Constitution, yet any one State can strike any thing out of it. For the power to strike out, and the power of deciding, without appeal, upon the construction of what is already in, are substantially and practically the same.
And, Gentlemen, what a spectacle should we have exhibited under the actual operation of notions like these! At the very moment when our government was quoted, praised, and commended all over the world, when the friends of republican liberty everywhere were gazing at it with delight, and were in perfect admiration at the harmony of its movements, one State steps forth, and, by the power of nullification, breaks up the whole system, and scatters the bright chain of the Union into as many sundered links as there are separate States!