Inquiry Into the Origin and Course of Political Parties in the United States

by Martin Van Buren

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.