By these measures the Executive and the Legislature recorded their decision in regard to the powers of government over national territory. The Judiciary was not then consulted; but twenty-five years afterward, in the year 1828, Chief-Justice Marshall was in his turn required to give an opinion, and he added the final authority of the Supreme Court to the precedent. With characteristic wisdom he claimed for the government both the constitutional and the extra-constitutional powers in question. The case concerned the rights of inhabitants of Florida, who he said—
“Do not participate in political power; they do not share in the government till Florida shall become a State. In the mean time Florida continues to be a territory of the United States, governed by virtue of that clause in the Constitution which empowers Congress ‘to make all needful rules and regulations respecting the territory or other property belonging to the United States.’ Perhaps the power of governing a territory belonging to the United States which has not, by becoming a State, acquired the means of self-government, may result necessarily from the fact that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned.”[85]
The effect of such a precedent on constitutional principles was certain to be great. A government competent to interpret its own powers so liberally in one instance, could hardly resist any strong temptation to do so in others. The doctrines of “strict construction” could not be considered as the doctrines of the government after they had been abandoned in this leading case by a government controlled by strict constructionists. The time came at last when the opponents of centralization were obliged to review their acts and to discover the source of their mistakes. In 1856 the Supreme Court was again required to pronounce an opinion, and found itself confronted by the legislation of 1803–1804 and the decision of Chief-Justice Marshall in 1828. Chief-Justice Taney and his associates, in the case of Dred Scott, then reviewed the acts of Jefferson and his friends in 1803–1804, and pronounced upon them the final judgment of the State-rights school.
Chief-Justice Taney affirmed the right of the government to buy Louisiana and to govern it, but not to govern it as a part of the old territory over which the Constitution gave Congress unlimited power. Louisiana was governed, according to Marshall’s dictum, by a power which was “the inevitable consequence of the right to acquire territory,”—a power limited by the general purposes of the Constitution, and therefore not extending to a colonial system like that of Europe. Territory might thus be acquired; but it was acquired in order to become a State, and not to be held as a colony and governed by Congress with absolute authority; citizens who migrated to it “cannot be ruled as mere colonists dependent upon the will of the general government, and to be governed by any laws it may think proper to impose.” The chief-justice dwelt on this point at much length; the federal government, he said, “cannot, when it enters a territory of the United States, put off its character and assume discretionary or despotic powers which the Constitution has denied it.”
Even this emphatic opinion, which implied that all the Louisiana legislation was unconstitutional, did not satisfy Justice Campbell, a Georgian, who represented the ultimate convictions of the strict constructionists. Campbell reviewed the national history in search of evidence “that a consolidated power had been inaugurated, whose subject comprehended an empire, and which had no restriction but the discretion of Congress.” He held that the Constitution had been plainly and repeatedly violated; “and in reference to the precedent of 1804, the wisest statesmen protested against it, and the President more than doubted its policy and the power of the government.” The Court, he said, could not undertake to conquer their scruples as the President and Congress had done. “They acknowledge that our peculiar security is in the possession of a written Constitution, and they cannot make it blank paper by construction.”
This sneer at President Jefferson was almost the last official expression of strict-constructionist principles. Of its propriety the Court itself was the best judge, but its historical interest could not be denied.
If Justice Campbell and Chief-Justice Taney were right, according to the tenets of their school the legislation of 1803–1804 was plainly unconstitutional. In that case, by stronger reasoning the treaty itself was unconstitutional and void from the beginning; for not only did Jefferson’s doubts to which Campbell alluded refer to the treaty and not to the legislation, but the treaty was at least equally responsible with the laws for making, in 1803, a situation which required what Campbell denounced,—“the supreme and irresistible power which is now claimed for Congress over boundless territories, the use of which cannot fail to react upon the political system of the States to its subversion.”
With the law the story need not concern itself, but the view of American history thus suggested was peculiarly interesting. If the chief-justice and his associate expressed correctly the opinions of the strict-constructionist school, the government had at some time been converted from a government of delegated powers into a sovereignty. Such was the belief of Campbell’s political friends. Four years after the Dred Scott decision was declared, the State of South Carolina, in Convention, issued an “Address to the People of the Slave-holding States,” justifying its act of secession from the Union.
“The one great evil,” it declared, “from which all other evils have flowed, is the overthrow of the Constitution of the United States. The government of the United States is no longer the government of confederated republics, but of a consolidated democracy. It is no longer a free government, but a despotism.”
If the strict constructionists held this opinion, they necessarily believed that at some moment in the past the government must have changed its character. The only event which had occurred in American history so large in its proportions, so permanent in its influence, and so cumulative in its effects as to represent such a revolution was the Louisiana purchase; and if the Louisiana purchase was to be considered as having done what the Federalists expected it to do,—if it had made a new constitution and a government of sovereign powers,—the strict constructionists were not only consenting parties to the change, they were its authors.