7 February 1788
In my last, I shewed, that the judicial power of the United States under the
first clause of the second section of article eight, would be authorized to
explain the constitution, not only according to its letter, but according to
its spirit and intention; and having this power, they would strongly incline
to give it such a construction as to extend the powers of the general
government, as much as possible, to the diminution, and finally to the
destruction, of that of the respective states.
I shall now proceed to shew how this power will operate in its exercise to
effect these purposes. In order to perceive the extent of its influence, I
shall consider,
First. How it will tend to extend the legislative authority.
Second. In what manner it will increase the jurisdiction of the courts, and
Third. The way in which it will diminish, and destroy, both the legislative
and judicial authority of the United States.
First. Let us enquire how the judicial power will effect an extension of the
legislative authority.
Perhaps the judicial power will not be able, by direct and positive decrees,
ever to direct the legislature, because it is not easy to conceive how a
question can be brought before them in a course of legal discussion, in
which they can give a decision, declaring, that the legislature have certain
powers which they have not exercised, and which, in consequence of the
determination of the judges, they will be bound to exercise. But it is easy
to see, that in their adjudications they may establish certain principles,
which being received by the legislature, will enlarge the sphere of their
power beyond all bounds.
It is to be observed, that the supreme court has the power, in the last
resort, to determine all questions that may arise in the course of legal
discussion, on the meaning and construction of the constitution. This power
they will hold under the constitution, and independent of the legislature.
The latter can no more deprive the former of this right, than either of
them, or both of them together, can take from the president, with the advice
of the senate, the power of making treaties, or appointing ambassadors.
In determining these questions, the court must and will assume certain
principles, from which they will reason, in forming their decisions. These
principles, whatever they may be, when they become fixed, by a course of
decisions, will be adopted by the legislature, and will be the rule by which
they will explain their own powers. This appears evident from this
consideration, that if the legislature pass laws, which, in the judgment of
the court, they are not authorised to do by the constitution, the court will
not take notice of them; for it will not be denied, that the constitution is
the highest or supreme law. And the courts are vested with the supreme and
uncontroulable power, to determine, in all cases that come before them, what
the constitution means; they cannot, therefore, execute a law, which, in
their judgment, opposes the constitution, unless we can suppose they can
make a superior law give way to an inferior. The legislature, therefore,
will not go over the limits by which the courts may adjudge they are
confined. And there is little room to doubt but that they will come up to
those bounds, as often as occasion and opportunity may offer, and they may
judge it proper to do it. For as on the one hand, they will not readily pass
laws which they know the courts will not execute, so on the other, we may be
sure they will not scruple to pass such as they know they will give effect,
as often as they may judge it proper.
From these observations it appears, that the judgment of the judicial, on
the constitution, will become the rule to guide the legislature in their
construction of their powers.
What the principles are, which the courts will adopt, it is impossible for
us to say; but taking up the powers as I have explained them in my last
number, which they will possess under this clause, it is not difficult to
see, that they may, and probably will, be very liberal ones.
We have seen, that they will be authorized to give the constitution a
construction according to its spirit and reason, and not to confine
themselves to its letter.
To discover the spirit of the constitution, it is of the first importance
to attend to the principal ends and designs it has in view. These are
expressed in the preamble, in the following words, viz. "We, the people of
the United States, in order to form a more perfect union, establish justice,
insure domestic tranquility, provide for the common defence, promote the
general welfare, and secure the blessings of liberty to ourselves and our
posterity, do ordain and establish this constitution," &c. If the end of the
government is to be learned from these words, which are clearly designed to
declare it, it is obvious it has in view every object which is embraced by
any government. The preservation of internal peace -- the due administration
of justice -- and to provide for the defence of the community, seems to
include all the objects of government; but if they do not, they are
certainly comprehended in the words, "to provide for the general welfare."
If it be further considered, that this constitution, if it is ratified, will
not be a compact entered into by states, in their corporate capacities, but
an agreement of the people of the United States, as one great body politic,
no doubt can remain, but that the great end of the constitution, if it is to
be collected from the preamble, in which its end is declared, is to
constitute a government which is to extend to every case for which any
government is instituted, whether external or internal. The courts,
therefore, will establish this as a principle in expounding the
constitution, and will give every part of it such an explanation, as will
give latitude to every department under it, to take cognizance of every
matter, not only that affects the general and national concerns of the
union, but also of such as relate to the administration of private justice,
and to regulating the internal and local affairs of the different parts.
Such a rule of exposition is not only consistent with the general spirit of
the preamble, but it will stand confirmed by considering more minutely the
different clauses of it.
The first object declared to be in view is, "To form a perfect union." It is
to be observed, it is not an union of states or bodies corporate; had this
been the case the existence of the state governments, might have been
secured. But it is a union of the people of the United States considered as
one body, who are to ratify this constitution, if it is adopted. Now to make
a union of this kind perfect, it is necessary to abolish all inferior
governments, and to give the general one compleat legislative, executive and
judicial powers to every purpose. The courts therefore will establish it as
a rule in explaining the constitution to give it such a construction as will
best tend to perfect the union or take from the state governments every
power of either making or executing laws. The second object is "to establish
justice." This must include not only the idea of instituting the rule of
justice, or of making laws which shall be the measure or rule of right, but
also of providing for the application of this rule or of administering
justice under it. And under this the courts will in their decisions extend
the power of the government to all cases they possibly can, or otherwise
they will be restricted in doing what appears to be the intent of the
constitution they should do, to wit, pass laws and provide for the execution
of them, for the general distribution of justice between man and man.
Another end declared is "to insure domestic tranquility." This comprehends a
provision against all private breaches of the peace, as well as against all
public commotions or general insurrections; and to attain the object of this
clause fully, the government must exercise the power of passing laws on
these subjects, as well as of appointing magistrates with authority to
execute them. And the courts will adopt these ideas in their expositions. I
might proceed to the other clause, in the preamble, and it would appear by a
consideration of all of them separately, as it does by taking them together,
that if the spirit of this system is to be known from its declared end and
design in the preamble, its spirit is to subvert and abolish all the powers
of the state government, and to embrace every object to which any government
extends.
As it sets out in the preamble with this declared intention, so it proceeds
in the different parts with the same idea. Any person, who will peruse the
8th section with attention, in which most of the powers are enumerated, will
perceive that they either expressly or by implication extend to almost every
thing about which any legislative power can be employed. But if this
equitable mode of construction is applied to this part of the constitution;
nothing can stand before it.
This will certainly give the first clause in that article a construction
which I confess I think the most natural and grammatical one, to authorise
the Congress to do any thing which in their judgment will tend to provide for
the general welfare, and this amounts to the same thing as general and
unlimited powers of legislation in all cases.
(To be continued.)
XII
14 February 1788
(Continued from last Thursday's paper.)
This same manner of explaining the constitution, will fix a meaning, and a
very important one too, to the 12th [18th?] clause of the same section,
which authorises the Congress to make all laws which shall be proper and
necessary for carrying into effect the foregoing powers, &c. A voluminous
writer in favor of this system, has taken great pains to convince the
public, that this clause means nothing: for that the same powers expressed
in this, are implied in other parts of the constitution. Perhaps it is so,
but still this will undoubtedly be an excellent auxilliary to assist the
courts to discover the spirit and reason of the constitution, and when
applied to any and every of the other clauses granting power, will operate
powerfully in extracting the spirit from them.
I might instance a number of clauses in the constitution, which, if
explained in an equitable manner, would extend the powers of the government
to every case, and reduce the state legislatures to nothing; but, I should
draw out my remarks to an undue length, and I presume enough has been said
to shew, that the courts have sufficient ground in the exercise of this
power, to determine, that the legislature have no bounds set to them by this
constitution, by any supposed right the legislatures of the respective
states may have, to regulate any of their local concerns.
I proceed, 2d, To inquire, in what manner this power will increase the
jurisdiction of the courts.
I would here observe, that the judicial power extends, expressly, to all
civil cases that may arise save such as arise between citizens of the same
state, with this exception to those of that description, that the judicial
of the United States have cognizance of cases between citizens of the same
state, claiming lands under grants of different states. Nothing more,
therefore, is necessary to give the courts of law, under this constitution,
complete jurisdiction of all civil causes, but to comprehend cases between
citizens of the same state not included in the foregoing exception.
I presume there will be no difficulty in accomplishing this. Nothing more is
necessary than to set forth, in the process, that the party who brings the
suit is a citizen of a different state from the one against whom the suit is
brought, and there can be little doubt but that the court will take
cognizance of the matter, and if they do, who is to restrain them?" Indeed,
I will freely confess, that it is my decided opinion, that the courts ought
to take cognizance of such causes, under the powers of the constitution. For
one of the great ends of the constitution is, "to establish justice." This
supposes that this cannot be done under the existing governments of the
states; and there is certainly as good reason why individuals, living in the
same state, should have justice, as those who live in different states.
Moreover, the constitution expressly declares, that "the citizens of each
state shall be entitled to all the privileges and immunities of citizens in
the several states." It will therefore be no fiction, for a citizen of one
state to set forth, in a suit, that he is a citizen of another; for he that
is entitled to all the privileges and immunities of a country, is a citizen
of that country. And in truth, the citizen of one state will, under this
constitution, be a citizen of every state.
But supposing that the party, who alledges that he is a citizen of another
state, has recourse to fiction in bringing in his suit, it is well known,
that the courts have high authority to plead, to justify them in suffering
actions to be brought before them by such fictions. In my last number I
stated, that the court of exchequer tried all causes in virtue of such a
fiction. The court of king's bench, in England, extended their jurisdiction
in the same way. Originally, this court held pleas, in civil cases, only of
trespasses and other injuries alledged to be committed vi et armis. They
might likewise, says Blackstone, upon the division of the aula regia, have
originally held pleas of any other civil action whatsoever (except in real
actions which are now very seldom in use) provided the defendant was an
officer of the court, or in the custody of the marshall or prison-keeper of
this court, for breach of the peace, &c. In process of time, by a fiction,
this court began to hold pleas of any personal action whatsoever; it being
surmised, that the defendant has been arrested for a supposed trespass that
"he has never committed, and being thus in the custody of the marshall of
the court, the plaintiff is at liberty to proceed against him, for any other
personal injury: which surmise of being in the marshall's custody, the
defendant is not at liberty to dispute." By a much less fiction, may the
pleas of the courts of the United States extend to cases between citizens of
the same state. I shall add no more on this head, but proceed briefly to
remark, in what way this power will diminish and destroy both the
legislative and judicial authority of the states.
It is obvious that these courts will have authority to decide upon the
validity of the laws of any of the states, in all cases where they come in
question before them. Where the constitution gives the general government
exclusive jurisdiction, they will adjudge all laws made by the states, in
such cases, void ab initio. Where the constitution gives them concurrent
jurisdiction, the laws of the United States must prevail, because they are
the supreme law. In such cases, therefore, the laws of the state
legislatures must be repealed, restricted, or so construed, as to give full
effect to the laws of the union on the same subject. From these remarks it
is easy to see, that in proportion as the general government acquires power
and jurisdiction, by the liberal construction which the judges may give the
constitution, will those of the states lose its rights, until they become so
trifling and unimportant, as not to be worth having. I am much mistaken, if
this system will not operate to effect this with as much celerity, as those
who have the administration of it will think prudent to suffer it. The
remaining objections to the judicial power shall be considered in a future
paper.
Brutus.