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portance which that Constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist;” more especially as the questions which had arisen between the States and the general Government had been such as these, namely, whether certain just debts contracted by some of the States should be paid by them, or certain taxes, imposed by Congress, collected; questions which, if determined in the negative by the imagined self-interest of the individual legislatures, could hardly be expected to be otherwise determined by judges appointed by those legislatures, and depending upon them for their tenure of office.

The State legislatures have no such check upon them as is afforded by the submission of their Acts to an independent tribunal, which can determine, if the question should at any time be raised, whether they have or have not exceeded their lawful powers. Consequently, “ violations of the State Constitutions are more likely to remain unnoticed and unregarded.”. The legislatures of the individual States may, by a vote determining upon a constitutional amendment, “change, with few limitations, the whole structure and power of Government, and thus legalize any present excess of power.” * Many of them, as above mentioned, have actually exercised such power, against the wishes of large minorities.t

This power of immediate action upon the legislatures of the several States, by those invested with the franchise, is in stricter correspondence with the ultra-democratic ideas and principles existing in Europe. But it has no place in the Constitution of the United States, which is the ideal commonly referred to by the advocates of republican government, because it is the one more widely known, and occupies the prominent place in the public eye when turned towards that country. The principles of the State governments, and their particular arrangements in regard to the amount and distribution of popular power, are less known * § 395.

† Page 41.

because less conspicuous; and their practice not such as, if more widely known, would be likely to recommend them as models of purity of administration, or as considerate depositories of supreme power, or always as strict assertors of law and justice.



The preamble of the Constitution declares, in substance, the importance, the advantages, and in regard to many particulars, the absolute necessity, of a national Government.

These positions are so indisputable that there will be no need to follow the commentary upon each separate statement of the preamble itself. They command at once our assent, as they declare the aim of the national Government of the United States to be in no respect different from what we should assert of our own.

There are two points, however, which Mr. Justice Story adverts to, as having been especially designed to be established by the framers

of the Constitution, which it will be instructive to notice.

The preamble recites that the Constitution was framed in order, among other things, to “establish justice ;” and the learned commentator's remarks upon that clause* show, in relation to one great branch of justice, namely, the payment of debts, how great was the need of some over-ruling authority to compel the individual States to the observance of good faith in those matters, both towards each other and to individuals. He says that, “ besides the debts due to foreigners, the public debt of the United States was left utterly unprovided for; and the officers and soldiers of the Revolution, who had achieved our independence, were, as we have had occasion to notice, suffered to languish in want, and their just demands evaded or passed by with indifference.” “ Laws were constantly made by the State legislatures, violating, with more or less degrees of aggravation, the sacredness of private contracts ; laws compelling the receipt of a depreciated and depreciating paper

* $$ 485–6.

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