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ARt. VII.—1. The American System. Baltimore. Printed by Lucas & Deaver. 1828.
2. Martin, heir at law and devisee of Fairfax, v. Hunter's lessee. Vol. i. Reports of Cases argued and adjudged in the Supreme Court of the United States, February Term, 1816. By HENRY WHEATON. Philadelphia. 1816.
3. New Views of the Constitution of the United States. By John TAYLOR, of Caroline, Virginia. Washington City. 1823.
4. Cohens v. Virginia. Vol. vi. Reports of Cases adjudged in the Supreme Court, February Term, 1821. By HENRY WHEATON. New-York. 1521.
5. Hunter v. Martin, devisee of Fairfax. Vol. iv. Reports of Cases argued and determined in the Supreme Court of Appeals of Virginia. By Willi AM MUN FoRD. Philadelphia. 1817.
There are periods in the history of every government, when the bonds of society are loosened, and the principles of its constitution—for all have some fundamental principles, however incongruous or absurd—are brought into discussion. Fortunate it is, when these controversies do not break up the foundations of national strength and happiness, and suffer not discord and abiding enmities to overflow the land. Our country is now passing through one of these paroxysms; and it threatens to be more dangerous than our former disputes, because, with the important questions and principles which are involved in the debate, and constitute its essential features, geographical divisions have been interwoven, and these serve to give a new and harsher tone to every discordant voice. The question which now agitates South-Carolina is, in this view, of intense interest. It is neither more nor less, than an effort to determine, whether written constitutions are to have any validity, any inherent or abiding strength; or, whether all devices to limit power, or to adjust authority, must forever be the prey of interest, of passion, of delusion, or of an absorbing ambition.
This controversy is not new in our councils, but, hitherto, it has appeared in no shape to occasion disquietude, but rather as a mere abstract proposition—as a theme for political declamation—as a prelude to other doctrines that might afterwards arise—or as a shadow, which, flitting across the view, only
VOL. VI.-No. 12.
served to indicate the substance that was yet concealed. Without any adjustment whatever of the difficulties, which seemed to us only as speculative, or as arising transiently in the operations of a great and powerful government, we continued to progress in an uninterrupted career of prosperity, and we were happy. Unfortunately, however, a new period has arrived, which imparts a totally different character to the controversy. A large portion of our fellow citizens, in other sections of the Union, have been persuaded into the belief, that their peculiar interests demand that the most liberal construction should be given to certain vague clauses in the Constitution, that they might reduce into practice, what has been hitherto only theory. And a party has cousequently arisen, making these doctrines their watchword, striving to enforce them on the people generally, and looking to the success of this effort, as a means for the establishment of their political influence and supremacy. Amongst all the champions who have stepped forth to advocate unlimited construction, and to maintain the principles on which the American System is to be supported, none have been so much in advance, as the author of the pamphlet we have placed at the head of this article. To shew fully the nature of the doctrines here advocated, we shall throw into the form of axioms, the “strong constitutional grounds” on which the author considers them as resting; and to guard against the charge of misrepresentation, we shall support, by quotations from his work, the views we shall give of his opinions. 1st. The Constitution is a restraining, not an enabling instrument. Congress may legislate upon all subjects, not prohibited. - • , “A written constitution of government is an instrument sui generis. It is not like a power of attorney, or a contract or compact between individuals, which is confined in its operations to the parties themselves, and must, therefore, be strictly construed with reference to the intentions of the parties to the contract, who are presumed to have entered into it with a full knowledge of all their rights and interests. A constitution of government, on the contrary, is not confined in its operation to the immediate and actual parties who formed and agreed to it, but in its origin is designed to extend to, and control unborn generations, and must, therefore, be largely and liberally construed in furtherance of their rights, powers and interests. Hence, a written constitution must be liberally construed in favour of the powers of the government, because it must be presumed, that every generation knows its own interest best, and because it must also be presumed, that the government will exercise all its power for the benefit of the people. Should the government abuse its power, the people have an ample remedy in the elective franchise. In such a government then, a broad and liberal construction of the constitution, leaves the people of each generation at liberty to judge of, and adopt measures in furtherance of their own interests, while a narrow and illiberal construction may deprive them of a valuable portion of their liberty.
“We differ, however, with our constitutional lawyers and politicians in the fundamental principles of our Constitution. They hold the Constitution of the United States to be an enabling instrument. Hence they talk about the enumerated powers, the delegated powers, the implied powers, the incidental powers, and the concurrent powers of the government. We hold, on the contrary, that the Constitution is a restraining, and not an enabling instrument. Supreme or legislative power is, in its very nature, absolute and unqualified. But for the restraining clauses in the Constitution of the United States, Congress would possess just as absolute power to legislate on all subjects, as the Parliament of Great-Britain.” p. 31.
“In order, therefore, to ascertain whether Congress has power to legislate upon a given subject, or to pass a given law, we must look into the Constitution to see whether there is any prohibition or restraint upon the power of Congress, and not for the purpose of ascertaining whether the Constitution contains any express, incidental or implied power to Congress to legislate. The onus probandi lies upon those who deny the power, and not upon those who claim the power. Unless the Constitution then contains a clause, which says that Congress shall not pass a law for the protection and encouragement of domestic manufactures, there is no restraint, and Congress may, constitutionally, pass such a law.” p. 32.
2d. It is the duty of the Supreme Court, in all doubtful cases, to decide in favour of the power of the government.
“The Supreme Court never has, and, we trust, never will decide any act of Congress to be unconstitutional, unless it be, in plain, unequivocal violation of some prohibitory clause of the Constitution. Indeed, the Supreme Court itself has solemnly announced this doctrine from the bench, in the case of McCulloch v. the State of Maryland.” p. 39.
“If, from inadvertence or accident, Congress should pass a law repugmant to the prohibitions in the Constitution, we have no doubt the Supreme Court would declare the law unconstitutional; but we do not think the Court ever will, or ever ought to declare an act of Congress unconstitutional, that has been passed upon deliberation. It would be a bold and hazardous experiment for the Court, to abrogate a law, which a majority of Congress, (and we may thence conclude, of the people also) believe to be constitutional, and calculated to promote the public welfare.”
“That both houses of Congress will ever become so corrupt, as designedly to pass a law in violation of the express and plain prohibitions of the Constitution, cannot be supposed; and the Court ought never to oppose itself to the will of the nation in a doubtful case. The marim of the Court ought to be, and we believe is, to decide all doubtful case in favour of the power of the government.” p. 41.
Such are the fundamental axioms which our author advocates. Though the first proposition is not in consonance with any decision, which the Supreme Court has hitherto made on the subject, even with all its disposition to extend, by construction, the powers of Congress; yet it is easy to perceive, that the time rapidly approaches, when the general reasonings of the Court may naturally lead it into a similar proposition. Our author has inferred that such is the doctrine of the Court, from what fell from it in McCulloch v. the State of Maryland; and the reasons which he advances for his opinion, that in declaring a law of Congress to be unconstitutional, the Supreme Court is, under its decisions, confined to such only as relate to prohibited subjects, if not conclusive, yet they are reasons, which amongst many, may be entitled to some weight. At any rate, such doctrines as these in the pamphlet before us, openly avowed, and attempted to be supported by the opinions of the Supreme Court, are, at least, the signs which make known to us, the principles by which the American System is supported, and the wide field which is occupied by the disciples of that school. They shew, that unless some counteracting efforts on the part of the States, be interposed to arrest the progress of these opinions, the e is danger that they finally may be embraced by the Supreme Court itself, in all the latitude contended for by our author. It is not for human sagacity to predict the excesses of judicial exposition, into which the greatest judges will in time be hurried, when the public sentiment of a majority of the people of the States shall be formed or fashioned upon such a model. Our chartered rights are now afloat on an ocean of construction, as unknown to our Constitution, as it is seemingly interminable. Were it some tempestuous sea of liberty, we might well hope, that, amidst all its perils, our vessel of state might, per chance, find some port of shelter and of safety. But it rather seems to be “the calm of despotism.” Its polished surface has been occasionaily ruffled, and its deep bosom even agitated with the refreshing, though temporary breezes of political discussion. These, for a while, have filled our sails, and propelled us onward to a just estimation of that exalted freedom, which it is our birthright to enjoy, and our duty to protect. But, on the whole, we have advanced but litle on our way. The public excitement which pervades every parish and district of South-Carolina, on the subject of the usurped powers of Congress, connected with the causes which produced it, and the manner in which it has been manifested, has inspired us with the hope, that the voyage may be prosecuted to our wishes. There is, in this breeze, nothing of lightness or transiency. It promises to freshen as it blows. May the virtue and patriotism of our citizens spread out and fill our sails, and may the sunshine of unanimity and firmness guide our bark, and conduct us to the administration of a government, in the same pure spirit in which the Constitution was formed. But to our author. In what light are we to consider the avowals which this pam
phlet sets forth: Are they the heedless declarations of the weak and unguarded followers of the consolidation party: Are they the awkward movements of raw recruits, who have not yet been properly trained or disciplined, or shall we rather regard them as the deep laid schemes of designing statesmen, who wish to discover the temper of the nation, and to ascertain its feelings, before they determine openly to advance doctrines, which it might become unpopular to advocate, and impossible to recal: Great statesmen have been known to take this method of making their experiments on public opinion, and masked heralds may certainly be made to utter denunciations or challenges, which, until a suitable time, no one is bound to second or maintain.
At the time the Constitution was about to be submitted to the consideration of the States, it had not an advocate, whatever might be his private wishes, who would have ventured to contend for our author's construction of that instrument. No State would have adopted it with such a commentary. If, as history informs us, it was forced along heavily, even under the most solemn assurances and stipulations, that it contained no covert mechanism, or latent power of any kind, what would have been its fate, could the people have imagined that it was a stupendous fraud, concealing doctrines, which might, by implication, undermine every reserved right of the States, and prostrate at the feet of usurped authority, those principles, which all believed to be sacred and inviolable, and which many of the States considered as essential to their very safety The answer is, that it never would have been ratified. But the characters of those sages, who framed this instrument, forbid any suspicion of the kind, and however little their declarations have been latterly observed—however modern practice may have departed from original testimony and ancient faith—respect and veneration for their memories will alway lead us to defend their sincerity, and to express our unshaken belief, that the interpolations of modern times are not supported by collateral expositions, or justified by traditionary rumours. What are the facts *