but this clause is clearly not susceptible of any such construction.Every right may be said to be a constitutional right,because no right exists which the Constitution disallows;and,consequently,every remedy to enforce those rights presents "a case arising under the Constitution."But a construction so latitudinous will scarcely be contended for by any one.The clause under consideration gives jurisdiction only as to those matters,and between those parties,enumerated in the Constitution itself.Whenever such a case arises,the Federal courts have cognizance of it;but the right to decide a case arising under the Constitution,does not necessarily imply the right to determine in the last resort what that Constitution is.If the Federal courts should,in the very teeth of the eleventh amendment,take jurisdiction of cases "commenced or prosecuted against one of the States by citizens of another State,"the decisions of those courts,that they had jurisdiction,would certainly not settle the Constitution in that particular.The State would be under no obligation to submit to such a decision,and it would resist it by virtue of its sovereign right to decide for itself,whether it had agreed to the exercise of such a jurisdiction or not.
Considering the nature of our system of government,the States ought to be,and I presume always will be,extremely careful not to interpose their sovereign power against the decisions of the Supreme Court in any case where that court clearly has jurisdiction.Of this character are the cases already cited at the commencement of this inquiry;such,for example,as those between two States,those affecting foreign ministers,those of admiralty and maritime jurisdiction,&c.As to all these subjects the jurisdiction is clear,and no State can have any interest to dispute it.
The decisions of the Supreme Court,therefore,ought to be considered as final and conclusive,and it would be a breach of the contract on the part of any State to refuse submission to them.There are,however,many cases involving questions of the powers of government,State and federal,which cannot assume a proper form for judicial investigation.Most questions of mere political power are of this sort;and such are all questions between a State and the United States.As to these,the Constitution confers no jurisdiction on the federal courts,and,of course,it provides no common umpire to whose decision they can be referred.In such cases,therefore,the State must of necessity decide for itself.But there are also cases between citizen and citizen,arising under the laws of the United States,and between the United States and the citizen,arising in the same way.
So far as the federal tribunals have cognizance of such cases,their decisions are final.If the constitutionality of the law under which the case arises,should come into question,the court has authority to decide it,and there is no relief for the parties,in any other judicial proceeding.If the decision,in a controversy between the United States and a citizen,should be against the United States,it is,of course,final and conclusive.If the decision should be against the citizen,his only relief is by an appeal to his own State.He is under no obligation to submit to federal decisions at all,except so far only as his own State has commanded him to do so;
and he has,therefore,a perfect right to ask his State whether her commands extend to the particular case or not.He does not ask whether the federal court has interpreted the law correctly or not,but whether or not she ever consented that Congress should pass the law.If Congress had such power,he has no relief,for the decision of the highest federal court is final;if Congress had not such power,then he is oppressed by the action of a usurped authority,and has a right to look to his own State for redress.
His State may interpose in his favor or not,as she may think proper.If she does not,then there is an end of the matter;if she does,than it is no longer a judicial question.The question is then between new parties,who are not bound by the former decision;between a State and the United States.As between these parties the federal tribunals have no jurisdiction,there is no longer a common umpire to whom the controversy can be referred.
The State must of necessity judge for itself,by virtue of that inherent,sovereign power and authority,which,as to this matter,it has never surrendered to any other tribunal.Its decision,whatever it may be,is binding upon itself and upon its own people,and no farther.
A great variety of cases are possible,some of which are not unlikely to arise,involving the true construction of the Federal Constitution,but which could not possibly be presented to the courts,in a form proper for their decision.The following are examples:
By the 4th section of the 4th article it is provided that "Congress shall guaranty to every State in the Union a republican form of government."What is a republican form of government,and how shall the question be decided?In its very nature,it is a political,and not a judicial question,and it is not easy to imagine by what contrivance it could be brought before a court.Suppose a State should adopt a constitution not republican,in the opinion of Congress,what course would be pursued?
