We are to treat it, as it purports on its face to be, as a CONSTITUTION of government; and we are to reject all other appellations. and definitions of it, such as that it is a compact, especially as they may mislead us into false constructions and glosses, and can have no tendency to instruct us in its real objects.1

1 [Besides the writers referred to by Mr. Justice Story, whoever desires to make himself familiar with the views opposed to those here presented will be likely to consult Construction Construed and Constitutions Vindicated, by John Taylor of Caroline (1820), New Views of the Constitution of the United States, by the same writer (1823), the Review of these Commentaries by Judge A. P. Upshur (Petersburg, Va., 1840), Professor Henry St. George Tucker's Lectures on Constitutional Law (Richmond, 1843), and the Constitutional View of the War between the States, by Alexander H. Stephens, 1867-70.]

CHAPTER IV.

WHO IS FINAL JUDGE OR INTERPRETER IN CONSTITUTIONAL CONTROVERSIES.

§ 373. THE consideration of the question whether the Constitution has made provision for any common arbiter to construe its powers and obligations would properly find a place in the analysis of the different clauses of that instrument. But, as it is immediately connected with the subject before us, it seems expedient in this place to give it a deliberate attention.1

§ 374. In order to clear the question of all minor points, which might embarrass us in the discussion, it is necessary to suggest a few preliminary remarks. The Constitution, contemplating the grant of limited powers, and distributing them among various functionaries, — and the State governments, with their functionaries, being also clothed with limited powers, subordinate to those

1 The point was very strongly argued, and much considered, in the case of Cohens v. Virginia, in the Supreme Court in 1821 (6 Wheat. R. 264). The whole argument, as well as the judgment, deserves an attentive reading. The result to which the argument against the existence of a common arbiter leads is presented in a very forcible manner by Mr. Chief Justice Marshall, in pages 376, 377.

"The questions presented to the court by the two first points made at the bar are of great magnitude, and may be truly said vitally to affect the Union. They exclude the inquiry whether the Constitution and laws of the United States have been violated by the judgment, which the plaintiffs in error seek to review; and maintain that, admitting such violation, it is not in the power of the government to apply a corrective. They maintain that the nation does not possess a department capable of restraining peaceably, and by authority of law, any attempts which may be made by a part against the legitimate powers of the whole; and that the government is reduced to the alternative of submitting to such attempts or of resisting them by force. They maintain that the Constitution of the United States has provided no tribunal for the final construction of itself, or of the laws or treaties of the nation; but that this power may be exercised in the last resort by the courts of every State in the Union. That the Constitution, laws, and treaties may receive as many constructions as there are States; and that this is not a mischief, or, if a mischief, is irremediable. These abstract propositions are to be determined; for he who demands decision without permitting inquiry affirms that the decision he asks does not depend on inquiry.

"If such be the Constitution, it is the duty of this court to bow with respectful submission to its provisions. If such be not the Constitution, it is equally the duty of this court to say so; and to perform that task which the American people have assigned to the judicial department."

granted to the general government, whenever any question arises as to the exercise of any power by any of these functionaries under the State or Federal government, it is of necessity that such functionaries must, in the first instance, decide upon the constitutionality of the exercise of such power. It may arise in the course of the discharge of the functions of any one, or of all, of the great departments of government, the executive, the legislative, and the judicial. The officers of each of these departments are equally bound by their oaths of office to support the Constitution of the United States, and are therefore conscientiously bound to abstain from all acts which are inconsistent with it. Whenever, therefore, they are required to act in a case not hitherto settled by any proper authority, these functionaries must, in the first instance, decide each for himself, whether, consistently with the Constitution, the act can be done. If, for instance, the President is required to do any act, he is not only authorized but required to decide for himself, whether, consistently with his constitutional duties, he can do the act2. So, if a proposition be before Congress,

1 See the Federalist, No. 33.

2 Mr. Jefferson carries his doctrine much further, and holds that each department of government has an exclusive right, independent of the judiciary, to decide for itself as to the true construction of the Constitution. "My construction," says he, " is very different from that you quote. It is, that each department of the government is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the laws submitted to its action, and especially when it is to act ultimately and without appeal." And he proceeds to give examples in which he disregarded, when President, the decisions of the judiciary, and refers to the alien and sedition laws, and the case of Marbury v. Madison (1 Cranch, 137). 4 Jefferson's Correspondence, 316, 317. See also 4 Jefferson's Corresp. 27; Id. 75; Id. 372, 374.

[In Attorney-General v. Barstow, 4 Wis. 587, the view of Mr. Jefferson was pressed still further. The facts were that Barstow, the governor of the State, was defeated by the people in a canvass for re-election. Certain spurious election returns were, nevertheless, placed on file with the State Board of Canvassers, which, together with the genuine returns, gave him an apparent majority over the opposing candidate. Thereupon he declined to surrender the office at the end of the term, and on quo warranto against him in the Supreme Court denied the authority of that court to consider and decide upon the title to the office. His position, as stated by his counsel, was as follows: —

“1. The three departments of the State government, the legislative, the executive, and judicial, are equal, co-ordinate, and independent of each other; and that each department must be and is the ultimate judge of the election and qualification of its own member or members, subject only to impeachment and appeal to the people.

"2. That this court must take judicial notice of who is governor of the State, when he was inaugurated, the genuineness of his signature, &c.; and therefore cannot hear argument or evidence upon the subject. That who is rightfully entitled to the office of governor can in no case become a judicial question, and

"3. That the Constitution provides no means for ousting a successful usurper of

every member of the legislative body is bound to examine and decide for himself whether the bill or resolution is within the constitutional reach of the legislative powers confided to Congress. And in many cases the decisions of the executive and legislative departments, thus made, become final and conclusive, being from their very nature and character incapable of revision. Thus, in measures exclusively of a political, legislative, or executive character, it is plain that as the supreme authority, as to these questions, belongs to the legislative and executive departments, they cannot be re-examined elsewhere. Thus, Congress having the power to declare war, to levy taxes, to appropriate money, to regulate intercourse and commerce with foreign nations, their mode of executing these powers can never become the subject of re-examination in any other tribunal. So the power to make treaties being confided to the President and Senate, when a treaty is properly ratified it becomes the law of the land, and no other tribunal can gainsay its stipulations. Yet cases may readily be imagined in which a tax may be laid or a treaty made, upon motives and grounds wholly beside the intention of the Constitution.1 The remedy, however, in such cases is solely by an appeal to the people at the elections, or by the salutary power of amendment provided by the Constitution itself.2

§ 375. But where the question is of a different nature, and capable of judicial inquiry and decision, there it admits of a very different consideration. The decision then made, whether in favor or against the constitutionality of the act, by the State or by the national authority, by the legislature or by the executive, being capable, in its own nature, of being brought to the test of the Constitution, is subject to judicial revision. It is in such cases, as we

either of the three departments of the government; that that power rests with the people, to be exercised by them when they think the exigency requires it."

The startling doctrine so broadly stated received so little countenance from the court to which it was addressed as scarcely to be treated with the courtesy of a discussion.] 1 See 4 Elliot's Debates, 315 to 320.

2 The Federalist, No. 44. Mr. Madison, in the Virginia Report of January, 1800, has gone into a consideration of this point, and very properly suggested that there may be infractions of the Constitution not within the reach of the judicial power, or capable of remedial redress through the instrumentality of courts of law. But we cannot agree with him, that in such cases each State may take the construction of the Constitution into its own hands, and decide for itself in the last resort; much less that in a case of judicial cognizance the decision is not binding on the States. See Report, p. 6, 7,

conceive, that there is a final and common arbiter provided by the Constitution itself, to whose decisions all others are subordinate ; and that arbiter is the supreme judicial authority of the courts of the Union.1

1 Dane's App. § 44, 45, p. 52 to 59. It affords me very sincere gratification to quote the following passage from the learned Commentaries of Mr. Chancellor Kent, than whom very few judges in our country are more profoundly versed in constitutional law. After enumerating the judicial powers in the Constitution, he proceeds to observe: "The propriety and fitness of these judicial powers seem to result, as a necessary consequence, from the union of these States in one national government, and they may be considered as requisite to its existence. The judicial power in every government must be coextensive with the power of legislation. Were there no power to interpret, pronounce, and execute the law, the government would either perish through its own imbecility, as was the case with the old confederation, or other powers must be assumed by the legislative body to the destruction of liberty." 1 Kent's Comm. (2d ed. p. 296,) Lect. 14, 277.

[Our author speaks here of a decision for or against the constitutionality of a particular act. Upon such a question, as he truly remarks, the final arbiter is " the supreme judicial authority of the courts of the Union." The final decision of that authority is binding upon all the people, all the States, and all the departments of the general government. But as between these several departments, there are and must be bounds to this conclusiveness of adjudication. The question that is judicial to-day may be political tomorrow. Judicial questions the courts decide; political are addressed to the wisdom of the legislature. To-day the question may be whether an existing act is constitutional. That is purely judicial. To-morrow the act may have expired, and the question may be whether it should be re-enacted. That question is political. Suppose there be no other objection to its re-enactment than doubts of its constitutionality, are legislators bound to defer to the judgment of the court in the exercise of the legislative function, and therefore to re-enact the law, though in their own view it may be a clear and dangerous infraction of the Constitution? This is a question quite aside from that here discussed by our author.

As illustrating this question a noted instance may be referred to. Previous to 1832 the Supreme Court of the United States had in a deliberate decision declared that Congress had the power to charter a Bank of the United States. But in 1832 the question of re-charter arising, and a bill having passed the two houses for the purpose, President Jackson vetoed it. In the course of his veto message he says: —

It is maintained by the advocates of the bank, that its constitutionality, in all its features, ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I cannot assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power, except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress, in 1791, decided in favor of a bank; another, in 1811, decided against it. One Congress, in 1815, decided against a bank ; another, in 1816, decided in its favor. Prior to the present Congress, therefore, the precedents drawn from that source were equal. If we resort to the States, the expressions of legislative, executive, and judicial opinions against the bank have been probably to those in its favor as four to one. There is nothing in precedent, therefore, which, if its authority were admitted, ought to weigh in favor of the act before me.

"If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the co-ordinate authorities of this government. The Congress, the exec