CHAPTER XV.

THE CONSTITUTION ACCORDING TO THE EXPOSITION OF ITS FINAL INTERPRETER.

"The judicial department of the United States is, in the last resort, the final expositor of the Constitution as to all questions of a judicial nature. 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 articles of confederation, or other powers must be assumed by the legislative body, to the destruction of liberty."--_Chancellor Kent._

The people of the United States, in adopting the Constitution, made _one_ standard, _one_ fundamental law, and _only one_. They gave to the government of the United States certain powers. They restricted it as to others. They placed certain prohibitions on the States. The Constitution was to be the one fundamental law of the land, to which all, as well States as people, should submit. Art. 6, sec. 2, provides that the "Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be _the supreme law of the land_; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding."

Who now is to tell us what this one standard is, to which all must submit, and which is thus to override all State Constitutions and all State laws? Is it the province of each individual to do it? Then we may have at this moment seventeen million different interpretations, and hence as many different Constitutions, each of which, however, is the supreme law of the land! Are the executive or judicial departments of the States the proper expounders? Then, at this moment, we may have only thirty different interpretations, twenty-nine of which must be wrong, because the supreme law can be but one.

In order, therefore, that the end of the Constitution may be accomplished, that it may really be the supreme law of the land, it must have provided a way in which its only true meaning may be ascertained and definitively settled. Unless it has provided a final interpreter of its meaning, it is the merest folly to style it the supreme law of the land, or to call on us to obey its requirement. Is the Constitution thus deficient? Does it demand uniformity, and at the same time deny the use of those means which are absolutely necessary to produce such uniformity? Does it present a variable, ever-changing standard of duty, and yet demand complete uniformity in practice?

There are three departments in the Government, namely, the Executive, the Legislative, and the Judicial. The first two of these are each, to some extent, supreme in its own sphere; and its acts are incapable of revision elsewhere. "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 motions and grounds wholly beside the intention of the Constitution. 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.

"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 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 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" (Story, Comm. Const. sec. 374, 375); for the Constitution declares, Art. 3, sec. 2, that "the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority," &c. And Art. 3, sec. 1: "The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish."

These constitutional provisions are clear. The Constitution and laws and treaties of the United States are declared to be the supreme law of the land. To expound what the law is, is a judicial act. The judicial power extends to all cases arising under the Constitution, laws, and treaties of the United States. It therefore extends to the exposition of the Constitution, laws, and treaties, when the case before the court properly calls for such exposition. This judicial power, and consequently this power of exposition, it is declared, shall be vested in one supreme court, &c. Most obviously, the exposition given by this one supreme court cannot be overruled by any other constitutional power; else the court is not supreme, else the Constitution is nullified. The decision of the supreme court is the decision of the _only constitutionally authorized expounder of the meaning of the Constitution_; and such exposition, to be supreme, must be final.

What, then, has this final interpreter declared the meaning of these clauses of the Constitution to be?

APPORTIONMENT OF REPRESENTATIVES. (Const. Art. 1, sec. 2.)

On the 5th of June, 1794 (Stat. 1794, c. 45), was approved an Act of Congress, "laying duties upon carriages for the conveyance of persons." The duty was uniform throughout the States. One Hylton, in Virginia, refused to pay the duty; alleging that the Act was unconstitutional, because the tax was a direct tax within the meaning of the Constitution, and therefore should have been apportioned among the States according to their federal numbers. He was sued by the United States, and finally the case came before the supreme court of the United States for decision. The following extracts are taken from the opinion of Justice Paterson (Hylton _versus_ the United States, 3 Dallas's Reports, p. 177; 1796):--

"I never entertained a doubt that the principal, I will not say the only, objects that the framers of the Constitution contemplated, as falling within the rule of apportionment, were a capitation-tax and a tax on land. Local considerations, and the particular circumstances and relative situation of the States, naturally lead to this view of the subject. _The provision was made in favor of the Southern States._ They possessed a large number of _slaves_; they had extensive tracts of territory, thinly settled, and not very productive. A majority of the States had but few _slaves_; and several of them, a limited territory, well-settled, and in a high state of cultivation. The Southern States, if no provision had been introduced in the Constitution, would have been wholly at the mercy of the other States. _Congress, in such case, might tax slaves at discretion or arbitrarily_, and land in every part of the Union. After the same rate or measure, so much a head in the first instance, and so much an acre in the second. _To guard them against imposition in these particulars was the reason of introducing the clause in the Constitution_ which directs that representatives and direct taxes shall be apportioned among the States, according to their respective numbers."

Page 178: "The rule of apportionment is of this nature: it is radically wrong; it cannot be supported by any solid reasoning. Why should slaves, who are a species of property, be represented more than any other property? The rule, therefore, ought not to be extended by construction."

PERMISSION OF THE AFRICAN SLAVE-TRADE. (Const. Art. 1, sec. 9.)

In the great case of Gibbons _vs._ Ogden, 9 Wheaton's Reports, pp. 206 and 207 (1824), Chief Justice Marshall, delivering the opinion of the supreme court, makes use of the following language:--

"The Act passed in 1803 (Act Const. 1803, c. 63), prohibiting the importation of slaves into any State which shall itself prohibit their importation, implies, it is said, an admission that the States possess the power to exclude or admit them; from which it is inferred, that they possess the same power with respect to other articles.

"If this inference were correct; if this power were exercised, not under any particular clause in the Constitution, but in virtue of a general right over the subject of commerce to exist as long as the Constitution itself, it might now be exercised. Any State might now import African slaves into its own territory. But it is obvious that the power of the States over this subject, previous to the year 1808, constitutes an exception to the power of Congress to regulate commerce; and the exception is expressed in such words as to manifest clearly the intention to continue the pre-existing right of the States to admit or exclude for a limited period. The words are, 'The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to 1808.' The whole object of the exception is to preserve the power to those States which might be disposed to exercise it, and its language seems to the court to convey this idea unequivocally."

See also pp. 216, 217.

RESTORATION OF FUGITIVE SLAVES. (Const. Art. 4, sec. 2.)

The following extracts are taken from the opinion of the supreme court in the well-known case, Prigg _vs._ the Commonwealth of Pennsylvania (16 Pet. Rep. 609, &c.). Judge Story delivered the opinion:--

"Historically, it is well known, that the object of this clause was to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves, as property, in every State in the Union into which they might escape from the State where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slaveholding States; and, indeed, was so vital to the preservation of their domestic interests and institutions, that it cannot be doubted that it constituted a fundamental article, without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevalent in the non-slaveholding States, by preventing them from intermeddling with, or obstructing, or abolishing, the rights of the owners of slaves."

Page 612: "If the Constitution had not contained this clause, every non-slaveholding State in the Union would have been at liberty to have declared free all runaway slaves coming within its limits, and to have given them entire immunity and protection against the claims of their masters;--a course which would have created the most bitter animosities, and engendered perpetual strife, between the different States. The clause was, therefore, of the last importance to the safety and security of the Southern States, and could not have been surrendered by them without endangering their whole property in slaves. The clause was accordingly adopted into the Constitution by the unanimous consent of the framers of it;--a proof at once of its intrinsic and practical necessity."

Page 613: "Upon this ground, we have not the slightest hesitation in holding, that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every State in the Union, to seize and recapture his slave, whenever he can do it without any breach of the peace or any illegal violence. In this sense, and to this extent, this clause of the Constitution may properly be said to execute itself, and to require no aid from legislation, state or national."

Page 625: "Upon these grounds, we are of opinion, that the Act of Pennsylvania upon which this indictment is founded is unconstitutional and void. It purports to punish, as a public offence against that State, the very act of seizing and removing a slave by his master, which the Constitution of the United States was designed to justify and uphold."

SUPPRESSION OF SLAVE INSURRECTIONS. (Const. Art. 1, sec. 8; Art. 4, sec. 4.)

We are not aware of any decision of the supreme court upon the meaning of these clauses; but it seems difficult to conceive, that they would hold that the word "insurrections" did not include all insurrections.

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Such is the Constitution according to the plain, obvious, and common meaning of its terms; such it was intended to be made by its framers; such has been the interpretation constantly followed in the practice of the government, from the time of its adoption until now; and such it is according to the decision of the final interpreter of its meaning. As reasonable men, seeking the truth, we cannot say that there is the slightest doubt whatever on the subject. THE CONSTITUTION VERY MATERIALLY SUPPORTS SLAVERY!