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three-fourths of all the States composing the Union have expressly assented to, or silently approved, this construction of the Constitution, and have resisted every effort to restrict or alter it."*

The reason why this great power should be placed in the judges of the Supreme Court, and not elsewhere, is stated by one of the greatest legal authorities of the United States, the late Chief-Justice Marshall, (in an able judgment upon this important question, in the case of Cohens v. Virginia, given in vol. vi. of . Wheatstone's Reports, pages 384 to 390; Story, § 392, note,) to have been, that the judges of the Supreme Court are, by the Constitution, appointed "during good behaviour," in other words, for life; whereas the judges in many of the States are appointed for short periods, "and are dependent for office and salary on the will of the legislatures; and the Constitution of the United States furnishes no security against the universal adoption of that principle." And when "we observe the im

* § 391.

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.†

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.

CHAPTER V.

THE PREAMBLE.

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

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