But admitting, for the sake of argument, the constitutionality of the bank to be one of those difficult and complicated questions about which men's minds may always be divided, and that there are reasons on either side, sufficient, if not to convince, to perplex and bewilder, and to afford pretexts for those who seek some sinister or selfish ends—and of such character are most constitutional questions—we would ask, if this is never to have a termination? Are questions of this kind to be always unsettled, so that no length of time, however sufficient to quiet private controversies, shall put an end to those which most nearly concern the tranquillity and permanence of the Union?
On this subject of constitutional questions generally, we would trespass awhile on the patience of our readers. It involves far higher considerations than whether this or that individual shall be president—this party or that shall exert a transient sway over the destinies of the country. Our remarks are independent of men, or times, or circumstances; and they are addressed to men of no party—to the intelligent and patriotic of all parties—to that fund of good sense which has ever characterized this nation.
As every officer of the government takes an oath to support the constitution, his conscience is appealed to, and that which he honestly and truly believes to be the meaning of the obligation he has incurred, must influence his votes and acts under the constitution. It is seriously and earnestly maintained by many of our citizens, that every man's own interpretation of the constitution must be his guide; and no matter what the public tribunals have determined—no matter for what length of time, or by what degree of unanimity a particular interpretation may have prevailed, it is to weigh as nothing with him, so far as it seems contrary to the conviction of his own mind. But is this a true understanding of the character of a written constitution, and of the oath which it enjoins? If so, would not the means devised to secure its more faithful observance be the most likely to defeat its provisions; and would it not make such a constitution the most impracticable and absurd form of government that human folly ever devised? Let us consider the consequences of this doctrine.
In the first place, let us call to mind the great number of constitutional questions which have arisen during the short period of little more than forty years, since the Federal government went into operation. In General Washington's administration, the most prominent of those questions were suggested by the establishment of a national bank—by the carriage tax—the proclamation of neutrality—and the appropriations to carry the British treaty into effect: in that of Mr. Adams, the elder, the alien and sedition laws: in Mr. Jefferson's, the repeal of the Judiciary law—the embargo for an indefinite period—the purchase of Louisiana: in Mr. Madison's, the United States Bank again, the power of the federal government over the militia of a state—the right of that government to construct roads: in Mr. Monroe's, the right in congress to pass the bankrupt law—to lay a duty on imports for the encouragement of manufactures—to appropriate money for the relief of the poor of the district of Columbia: and in Mr. John Quincy Adams's, the Cherokee treaty—the nullification doctrine—the power of appointing public officers, together with several of the others previously mentioned.
To these questions we might add many of minor importance or interest, and that multitude which have arisen and been decided in the Supreme Court of the United States. But if the number is already so great, what will it be a century or two hence? Let it be remembered, too, that each of these legislative questions may give rise to many others connected with them, and that each one may be multiplied to infinity in the courts of justice. Thus, if protecting duties for the encouragement of manufactures are unconstitutional, the duty claimed on every bale of imported goods may be called in question.
Whenever, then, any of these constitutional questions can be made, it would be competent for the party interested, by the doctrines of these political puritans, to make them. So that in every controversy, public or private, every conflict of right or interest, as the question of constitutionality would be completely open to the judge, and in criminal cases, to the jury, either party may take his chance of success by urging that interpretation of the constitution which best suits him, and the same question would, of course, be decided one way in one place, and another way in another. One man would be convicted for an offence for which another would go unpunished; and one citizen, or one state, be subjected to taxes under the constitution, from which others would be shielded by the same instrument.
Does any one doubt, that if a constitution is left to the unrestricted interpretation of every one who swears to support it, there would be this diversity? Let him look at the various commentaries on the same text in the New Testament. Let him look at the various interpretations of the same decrees of the Senate by the Edicts of the Pretors in Roman jurisprudence—to say nothing of those countless decisions of the civil law, by which, before the time of Justinian, it was buried beneath its own rubbish. Let him look at the voluminous reports in our own language on the written, as well as common law—on the infinite number of questions that have arisen, and are yet arising on a single statute, or even one of its sections,—let him consider these apposite examples, and ask whether our constitution is likely to share a different fate? Such, indeed, is the indefinite nature of language, the ever-varying character of human concerns, and the subtlety of the human intellect, that it is utterly impossible to pen a constitution on which numerous questions would not arise, which no sagacity of man could foresee, and which his language is too vague to provide for.
Constitutional questions then must arise, and the true point of inquiry is, whether our constitution meant that they should be finally settled, or whether they are to remain suspended between heaven and earth, until they are compelled to make their appearance by the necromancy of legal subtlety, or occasionally laid in the Red Sea.
But the evil would not stop with the federal government. We know that each state has also its own constitution, and that if their legislatures or executives transcend their powers, their acts, by the doctrines we are considering, are utterly void. They cannot exceed the limits of their charter, and those limits they have no exclusive right to define. Who that has attended the deliberations of a state legislature, and remarked the frequent recurrence of constitutional questions about their powers, but must see that there is scarcely any law concerning property, or office, or crime, on which ingenuity may not raise a doubt respecting either the letter or spirit of the constitution? And the same uncertainty and want of uniformity which would arise in the federal government, would arise in a much greater ratio in that of a state; so that no man could say certainly what were his duties or his rights. If such a state of things may now ensue, how would it be when the population of a single state should amount to several millions, and when the spirit of litigation, united with the extension of legal science, would give more than Norman acuteness to our constitutional lawyers? When that era shall arrive, if this quibbling spirit that is now so rife, shall not receive a timely check, where is the law, whose authority may not be questioned? Now is the time to arrest it, before our habits become indurated, and while our national character has that ductility which the changes our country is ever undergoing, naturally produces. Whoever is capable of taking a wide survey of human affairs, and of comparing ages and nations, must perceive that every generation of the civilized world is becoming more and more metaphysical—that the understanding is more appealed to, and has greater sway than formerly, and the imagination less. The age of magic, and witches, and ghosts, has passed away. That of poetry is on the wane. Speculation has taken the place of taste. What once passed unheeded, or was perceived only as it was felt, must now be analyzed, and sifted, and decompounded, until we have reached its elements, and a reason is required for every thing. Such is the spirit of the age, and it is eminently favourable to constitutional doubts and scruples.
We may already perceive the progress of this captious, inquisitive, hair-splitting spirit, in the brief chronicle of the federal government. When congress met, immediately after the formation of the constitution, in laying an impost, they endeavoured so to lay it, as to give encouragement to those species of industry for which the country seemed best suited, and their successors continued the same policy for about thirty years, when it was discovered, (we think by a member from Maine) that the policy was contrary to the constitution. The discovery was soon welcomed by many of the politicians of the South, and it has since been so cordially embraced by them, that the opposite opinion is now looked upon as downright political heresy.