Confederate Military History. Jabez Lamar Monroe Curry

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СКАЧАТЬ powers delegated to itself, since that would have made its discretion and not the Constitution the measure of its powers. In 1799 he reaffirmed the declaration and added that the principle that the general government was the exclusive judge of the powers delegated to it stopped nothing short of despotism.

      The favorite allegation of consolidationists is that the Constitution and the laws made in pursuance thereof are the supreme law of the land. No one questions that statement, but what is the Constitution, what laws are in pursuance thereof? The consequent assumption is that the Supreme court is the safe referee and the final judge. In all questions of a judicial nature of which the court has lawful cognizance, it is the final judge and interpreter, and there is no power in the government to which the court belongs to reverse its decisions or resist its authority, but the jurisdiction of the Federal courts is limited and the Federal judiciary is only a department of the government whose acts are called in question. Numerous instances of usurped powers might occur which the form of the Constitution could never draw within the control of the judicial department. The Supreme court might assume jurisdiction over subjects not allowed by the Constitution and there is no power in the general government to gainsay it. Charles Sumner, associated in the Northern mind with John Brown, as a semi-inspired apostle, spoke in 1854 in lofty scorn of according to the Supreme court the ‘power of fastening such interpretation as they see fit upon any part of the Constitution—adding to it, or subtracting from it, or positively varying its requirements—actually making and unmaking the Constitution; and to their work all good citizens must bow as of equal authority with the original instrument.’ Sometimes the court is divided, the dissenting judges possessing by universal concession the greater wisdom, more legal learning and ability; sometimes, not bound by its own judgment, the court reverses its decisions and stands on both sides of a question. ‘If the court itself be not constrained by its own precedents how can co-ordinate branches under oath to support the Constitution,’ and the creating States, ‘like the court itself, called incidentally to interpret the Constitution, be constrained by them?’ Sometimes to procure a reversal it is held that the court by action of Congress may hereafter be constituted differently, and we have a memorable precedent of the enlargement of the court and of the appointment of additional justices, whose opinions were well known in advance, in order to secure a reversal of the legal tender decision. Jefferson, in 1820, saw how by the silent and potential influence of judicial interpretation, the government was in great danger, and he wrote to Thomas Ritchie: ‘The judiciary of the United States is the subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated fabric * * * a judiciary independent of a king or executive alone is a good thing, but independence of the will of the nation is a solecism, at least in a republican government.’ The powers reserved in the tenth amendment are not only reserved against the Federal government in whole, but against each department, the judicial as well as the legislative and executive. Otherwise the Federal sphere is supreme and the spheres of the States are subordinate. It cannot be tolerated for a moment that the Supreme court has the right to modify every power inhering in the State governments, or undelegated by the people, so as to exempt its own action from their influence. That would be to concentrate absolute sovereignty in the court. If the Federal government, in its entirety, has no authority in the last resort to judge of the extent of its own powers, how can a single department, even the Supreme court, have this authority? What folly for the States to reserve powers against the Federal government, if that government, in whole or in part, has the ultimate decision as to what was reserved! To the Supreme court all the jurisdiction which properly belongs is cheerfully yielded, but in it no more than in the other departments can be safely reposed the trust of ascertaining, defining or limiting the undelegated powers of the States.

      History is said to be constantly repeating itself. This assumption of the Federal government, through all or either of the departments, to decide, ultimately and authoritatively, upon the character and extent of the grants and limitations of the Constitution, upon the powers it possesses, is a claim of absolute sovereignty and is not distinguishable from the unrepublican theory of the Divine Right, as expounded by Filmer and other such writers. Reduced to its real significance, it is practically what was asserted by the ‘Holy Alliance’ of 1815, when certain European sovereigns, under a kind of approved orthodox despotism, assumed the prerogative to perpetuate existing dynasties, to suppress rebellions and revolutions, and to crush out civil and religious liberty. This alliance insisted that governments did not derive their authority or legitimacy from the assent of the people; that all who asserted such political heresies were outlaws and traitors; that constitutions have no legitimate source except absolute power; that governments grant or withhold what they please; that every movement in opposition to the ‘powers that be’ is a monster to be crushed, and that all resistance to oppression is involved in the same anathema, however legitimate or defensible.

      There are some who see and concede the unreasonableness of making the discretion of a majority in Congress the measure of the powers granted or withheld in the Constitution, and that this nullifies the limitations and guarantees of the compact, and they recognize the necessity of resistance and interposition where reserved rights have been trampled on. Declining to accept the State rights theory, they have, under the stress of the necessity of not leaving wrongs unrighted and guarantees disregarded, suggested that the true remedy is an appeal to the ‘sober second thought’ of the people, or that failing, to a popular uprising to overthrow the offending government. This is the logical fallacy of begging the question. What people? En masse? No such people politically ever existed. The people who offended? Who will convince them of their error?

      When self the wavering balance shakes,

      It's rarely right adjusted.

      Rebellion or revolution assumes that the acts complained of were done by legitimate authority, in due course of procedure, according to valid forms. That is the gist of the question in issue. If successful, rebellion becomes `right; if unsuccessful, it is treason. It is not an appeal to reason, justice, morality, law, but to brute force. It belongs to the slave and is the mere right of self-preservation. It is a travesty on freedom, on constitutions, on civilizations. Might can never make right. It is great only in the service of righteousness. Were Satan omnipotent, he would be none the less Satan, rather all the more the incarnation of evil, in potent antagonism to the good. Our fathers do not deserve such a reproach. They were not guilty of such folly. With a prescient statesmanship, far beyond their times, they made adequate protection for the rights and liberties of posterity and made not their maintenance dependent on avoirdupois, or the fluctuating will of an interested or fanatical populace.

       States must decide. Sectionalism produced disunion.

      The Federal government, as the representative and embodiment of the delegated powers, has no disposition, and, within itself or in its organization, no provisions to prevent the delegated from encroaching on the powers reserved to the several States. This government, neither through the President, the Congress nor the courts, having the right to determine finally whether the compact has been dangerously violated, or has failed to subserve the purpose of its formation, it follows irresistibly that where the forms of the Constitution prove ineffectual against dangers to the equality and essential rights of the States, the parties to it, these States have the sole right to interfere for arresting the progress of the evil and for maintaining within their respective limits the rights and liberties appertaining to them. The interposition of a State in its sovereign character, as a party to the constitutional compact, was the only means furnished by the system to resist encroachments and prevent entire absorption of the powers which were purposely withheld from the general government. Madison said: ‘Where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. The States, then, being parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide, in the last resort, whether the compact СКАЧАТЬ