The Debates and Proceedings in the Congress of the United States, Seventeenth Congress, First Session, [Volume 1] Page: 69

                                
69
January, 1822.
HISTORY OP CONGRESS.
Amendment to the Constitution.
70
Senate.
vinces of the Netherlands, all furnished examples
for their improvement.
The history of these confederacies, said Mr. J.,
shed a light upon the subject, by which they
profited. In some, the consolidation of power
was so great, as to weaken the members, and en-
danger their liberties ; in others, the federal power
was not sufficient to preserve their integrity, and
disunion and carnage were the effects of their im-
becility. In establishing the principles of this
Confederacy, it was intended to guard against
these two extremes, by so dividing the powers be-
tween the General and State Governments, as to
rest on the isthmus between consolidation on the
one hand, and discord on the other ; and so to
define the attributes of each, as to produce har-
mony in all their operations.
When the struggle for independence, which
had been their bond of union, was past, and clash-
ing interests began to provoke animosities, it was
obvious to all, that, under the articles of the Old
Confederation, the General Government was too
feeble for the purposes of national prosperity ; and
all concurred in the sentiment, that some change
was necessary. The only question was, how great
that change should be 1 The difficulty, and the
sole difficulty, was, to determine the proper distri-
bution of power. How to divide the sovereignty
between two distinct governments, deriving their
authority from the same source, each supreme
within its own legitimate sphere of action, and yet
so to regulate and define the power of both as to
produce perfect concord, was the great political
problem to be solved by the statesmen of that day.
It was not to be expected that the first experiment
would perfectly effect this object. If it was an-
ticipated by any, disappointment has followed the
Utopian delusion. The highest tribute of respect,
however, is due to the wisdom of the patriots who
framed the Constitution, in so arranging thiscom-
plicated machinery of a sovereignty within sover-
eignties, as to admit of that degree of harmony
which has prevailed; but there is a limit to the
intellect of man. All that wisdom and patriotism
could do, they have done ; but imperfections which
human sagacity could not foresee, were to be de-
veloped by experience, and the corrective applied
by mutual consent.
It is admitted by all, that the States and Gen-
eral Government possess concurrent powers; that
they also possess powers exclusive of each other ;
and that the Federal Constitution prescribes limi-
tations upon both. In this complex system, dis-
orders are to be expected; some, of an incidental
nature, not easily controlled others, that admit a
remedy. After an experience of thirty-two years,
it becomes our imperious duty to begin this in-
quiry, relative to the conflicts between the Federal
judiciary and the sovereignty of the States. These
conflicts are become so frequent and alarming,
that the public safety demands an investigation,
that it may be determined where the error lies.
Unless we point out the real difficulty, and ascer-
tain the just claims of each party, we shall be
overspread with Egyptian darkness. When the
parties are not agreed upon the line .which divides
their powers, the question is, which shall pre-
ponderate, and which shall concede 1 The States
claim authority which the Federal judiciary denies'
and the Federal judiciary exercises powers which
the States do not acknowledge to be legitimate.
There is no umpire to decide between them ; and
the difficulty is, to determine which shall submit.
It is contended on the one part, that, as the Gen-
eral Government was instituted for national pur-
poses, its claims to the highest supremacy must
be superior to those of the States ; and that it is
an essential attribute of national sovereignty, that
its judiciary shall be the judge of its own powers,
and shall have authority to overrule every other
tribunal, according to its own sovereign will and
pleasure. But this argument cuts like the two-
edged sword, and furnishes a position quite as
strong in favor of the States. It is not denied,
that all power not delegated to Congress, nor pro-
hibited to the States, is reserved to the States re-
spectively, or to the people; that the States are
also supreme and independent within the orbit of
their powers. If, then, it is the attribute of sov-
ereignty to judge of its own powers, where is
the sovereignty of the States, if that judgment
must be submitted to the Federal judiciary 1 The
argument is precisely the same in both cases, and
may be called an argument in a circle.
It is contended by some of the States, Virginia
for instSnce, that the States have superior claims
to an exclusive decision in all cases of conflicting
power. The States are the original fountain of
power, a portion of which they have delegated
and vested in a General Government, for objects
common to all. The General Government is the
creature of the States, and exists by their permis-
sion. Tben, as it is a principle universally ac-
knowledged, in religion and morality, that the
creator is superior to the created, so it is contend-
ed that the States have the indubitable right of
exclusive decision in all cases of conflict, whether
they respect a violation of the delegated powers,
or the exercise of that authority which is reserved
to the States respectively, or to the people. To
say the least of it, there is much plausibility in
this argument. But, it involves a difficulty as to
the manner in which this right of decision shall
be exercised. If each State shall decide sepa-
rately, confusion would probably arise from con-
tradictory decisions on the same point, in different
States; but even this objection may have more
plausibility than substahce. Should the States
attempt to exercise any of the specific powers
granted exclusively to Congress, or to arrest the
General Government in the exercise of power ex-
pressly delegated, the consequence might be un-
fortunate ; but, in reviewing the conduct of the
States, and marking the particular points of con-
tact, it does not appear, from the history of our
Government, that the States have, in any one
case, attempted this, though the Federal judiciary
has assumed a guardianship over the States, even
to the controlling of their peculiar municipal re-
gulations. If the States have the right of decision,
there is a difficulty in giving their decision an
efficacious operation. If it belongs to then} col-'