In order to perform this essential function,it is necessary to call again into life and action those very State sovereignties which were supposed to be merged and dead,by the very act of creating the instrument which they are required to amend.To alter or amend a government requires the same extent of power which is required to form one;for every alteration or amendment is,as to so much,a new government.And,of all political acts,the formation of a constitution of government is that which admits and implies,the most distinctly and to the fullest extent,the existence of absolute,unqualified,unconditional,and unlimited sovereignty.So long,therefore,as the power of amending the Constitution rests exclusively with the States,it is idle to contend that they are less sovereign now than they were before the adoption of that instrument.
The idea which I am endeavoring to enforce,of the federative character of the Constitution,is still farther confirmed by that clause of the article under consideration,which provides that no amendment shall be made to deprive any State of its equal suffrage in the Senate,without its own consent.So strongly were the States attached to that perfect equality which their perfect sovereignty implied,and so jealous were they of every attack upon it,that they guarded it,by an express provision of the Constitution,against the possibility of overthrow.All other rights they confided to that power of amendment which they reposed in three-fourths of all the States;but this they refused to entrust,except to the separate,independent and sovereign will of each State;giving to each,in its own case,an absolute negative upon all the rest.22
The object of the preceding pages has been to show that the Constitution is federative,in the power which framed it;federative in the power which adopted and ratified it;federative in the power which sustains and keeps it alive;federative in the power by which alone it can be altered or amended;
and federative in the structure of all its departments.In what respect,then,can it justly be called a consolidated or national government?Certainly,the mere fact that,in particular cases,it is authorized to act directly on the people,does not disprove its federative character,since that very sovereignty in the States,which a confederation implies,includes within it the right of the State to subject its own citizens to the action of the common authority of the confederated States,in any form which may seem proper to itself.Neither is our Constitution to be deemed the less federative,because it was the object of those who formed it to establish "a government,"and one effective for all the legitimate purposes of government.
Much emphasis has been laid upon this word,and it even has been thought,by one distinguished statesman of Judge Story's school,that ours is "a government proper,"which I presume implies that it is a government in a peculiarly emphatic sense.I confess that I do not very clearly discern the difference between a government and a government proper.Nothing is a government which is not properly so;and whatever is properly a government is a government proper.But whether ours is a "government proper,"or only a simple government,does not prove that it is not a confederation,unless it be true that a confederation cannot be a government.
For myself,I am unable to discover why States,absolutely sovereign,may not create for themselves,by compact,a common government,with powers as extensive and supreme as any sovereign people can confer on a government established by themselves.In what other particular ours is a consolidated or national government,I leave it to the advocates of that doctrine to show.
We come now to a more particular and detailed examination of the question,"Who is the final judge,or interpreter in constitutional controversies?"
The fourth chapter of this division of Judge Story's work is devoted to this inquiry;and the elaborate examination which he has given to the subject,shows that he attached a just importance to it.The conclusion,however,to which he has arrived,leaves still unsettled the most difficult and contested propositions which belong to this part of the Constitution.His conclusion is,that,"in all questions of a judicial nature,"the Supreme Court of the United States is the final umpire;and that the States,as well as individuals,are absolutely bound by its decisions.His reasoning upon this part of the subject is not new,and does not strike me as being particularly forcible.Without deeming it necessary to follow him in the precise order of his argument,I shall endeavor to meet it in all its parts,in the progress of this examination.Its general outline is this:It is within the proper function of the judiciary to interpret the laws;the Constitution is the supreme law,and therefore it is within the proper function of the judiciary to interpret the Constitution;of course,it is the province of the federal judiciary to interpret the Federal Constitution.
And as that Constitution,and all laws made in pursuance thereof,are the supreme law of the land,anything in the laws or constitution of any State to the contrary notwithstanding,therefore,the interpretations of that Constitution,as given by the Supreme Court,are obligatory,final and conclusive,upon the people and the States.
