Powers of Congress - Purchases of Foreign Territory - Embargoes§ 1277.§ 1278.§ 1279.§ 1280.§ 1281.§ 1282.§ 1283.§ 1284.§ 1285.§ 1286.§ 1287.§ 1288.§ 1289.
FOOTNOTES
1. Art. 3.
2. See the Debates in 1803, on the Louisiana Treaty, printed by T. & G. Palmer in Philadelphia, in 1804, and 4 Elliot's Debates 257 to 260. -- The objections were not taken merely by persons, who were at that time in opposition to the national administration. President Jefferson himself (under whose auspices the treaty was made,) was of opinion, that the measure was unconstitutional, and required an amendment of the constitution to justify it. He accordingly urged his friends strenuously to that course; at the same time he added, "that it will be desirable for congress to do what is necessary in silence"; "whatever congress shall think necessary to do should be done with as little debate as possible, and particularly so far as respects the constitutional difficulty." "I confess, then, I think it important in the present case, to set an example against broad construction by appealing for new power to the people. If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction; confiding, that the good sense of our country will correct the evil of construction, when it shall produce ill effects." What a latitude of interpretation is this! The constitution may be over-leaped, and a broad construction adopted for favourite measures, and resistance is to be made to such a construction only, when it shall produce ill effects! His letter to Dr. Sibley (in June, 1803} recently published is decisive, that he thought an amendment of the constitution necessary. Yet he did not hesitate without such amendment to give effect to every measure to carry the treaty into effect during his administration. See 4 Jefferson's Corresp. p. It 2, 3, Letter to Dr. Sibley, and Mr. 3. Q. Adams's Letter to Mr. Speaker Stevenson, July 11, 1832.
3.Amer. Insur. Co. v. Canter, 1 Peters's Sup. R. 511, 542; Id. 517, note, Mr. Justice Johnson's Opinion.
4. Ibid. -- In the celebrated Hartford Convention, in January, 1815, a proposition was made to amend the constitution so, as to prohibit the admission of new states into the Union without the consent of two-thirds or both houses of congress. In the accompanying report there is a strong though indirect denial of the power to admit new states without the original limits of the United States.
5. 6 Wait's State Papers, 57.
6. 7 Wait's State Papers, 25, Mr. Madison's Letter to Mr. Pinkney; Gibbons v. Ogden, 9 Wheat. R. 191, 192, 193.
7. Act, 22d December, 1807, ch. 5.
8. In point of fact, it remained in force until the 29th of June, 1809, being repealed by an act passed on the first of March, 1809: to take effect at the end of the next session of congress which terminated on the 28th of June, 1809.
9.United States v. The Brig William, 2 Hall's Law Journal, 255; 1 Kent's Comm. Lect. 19, p. 405; Sergeant on Const. Law, ch. 28, (ch. 30;) Gibbons v. Ogden, 9 Wheat. R. 1, 191 to 193.
10. Mr. Jefferson, on many occasions, was not slow to propose, or justify measures of a very strong character; and such as proceeded altogether upon the ground of implied powers. Thus, in writing to Mr. Crawford, on 20th of June, 1816, he deliberately proposed, with a view to enable us in future to meet any war, to adopt "the report of the then secretary of the war department, for placing the force of the nation at effectual command," and to "ensure resources for money by the suppression of all paper circulation during peace, and licensing that of the nation alone during war." 4 Jefferson's Corresp. 285. Whence are these vast powers derived? The latter would amount to a direct prohibition of the circulation of any bank notes of the state banks; and in fact would amount to a suppression of the most effective powers of the state banks.
11. Act of 25th of June, 1798, ch. 75; Act of 14th of July, 1798, ch. 91; 1 Tuck. Black. Comm. App. part 2, note G, p. 11 to 30.
12. The Alien, and Sedition Acts were the immediate cause of the Virginia Resolutions of December, 1798, and of the elaborate vindication of them, in the celebrated Report of the 7th of January, 1800. The learned reader will there find an ample exposition of the whole constitutional objections. See also 4 Jefferson's Correspondence, 93, 27. The reasoning on the other side may be found in the Debates in Congress, at the time of the passage of these acts. It is greatly to be lamented, that there is no authentic collection of all the Debates in congress, in a form, like that of the Parliamentary Debates. See also 4 Elliot's Deb. 251, 252; Debates on the Judiciary, in 1802, Mr. Bayard's Speech, p. 371, 372; Addison's Charges to the Grand Jury, No. 25, p. 270; Id. No. 26. p. 289. These charges are commonly bound with Addison's Reports. See also 1 Tuck. Black. Comm. 296 to 300; Id. Part 2, App. note 6, p. 11 to 36; Report of Committee of House of Representatives of congress, 25th February, 1799, and Resolve of Kentucky, of 1798, and Resolve of Massachusetts, of 9th and 13th of February, 1799, on the same subject.
13. Mr. Vice President Calhoun, in his letter of the 28th of August, 1832, to Gov. Hamilton, uses the following language. "From the adoption of the constitution we have had but one continued agitation of constitutional questions, embracing some of the most important powers exercised by the government; and yet, in spite of all the ability, and force of argument, displayed in the various discussions, backed by the high authority, claimed for the Supreme Court to adjust such controversies, not a single constitutional question of a political character, which has ever been agitated during this long period, has been settled in the public opinion, except that of the unconstitutionality of the Alien, and Sedition laws; and what is remarkable, that was settled against the decision of the Supreme Court." Now, in the first place, the constitutionality of the Alien, and Sedition laws never came before the Supreme Court for decision; and consequently, never was decided by that court. In the next place, what is meant by public opinion deciding constitutional questions? What public opinion? Where, and at what time delivered? It is notorious, that some of the ablest statesmen and jurists of America, at the time of the passage of these acts, and ever since, have maintained the constitutionality of these laws. They were upheld, as constitutional, by some of the most intelligent, and able state legislatures in the Union, in deliberate resolutions affirming their constitutionality. Nay more, it may be affirmed, that at the time, when the controversy engaged the public mind most earnestly upon the subject, there was, (to say the least of it) as great a weight of judicial, and professional talent, learning, and patriotism, enlisted in their favour, as there ever has been against them. If, by being settled by public opinion, is meant that all the people of America were united in one opinion on the subject, the correctness of the statement cannot be admitted; though its sincerity will not be questioned. It is one
thing to believe a doctrine universally admitted, because we ourselves think it clear; and quite another thing to establish the fact. The Sedition and Alien laws were generally deemed inexpedient, and therefore any allusion to them now rarely occurs,
except in political discussions, when they are introduced to add odium to the party, by which they were adopted. But the most serious doubts may be entertained, whether even in the present day, a majority of constitutional lawyers, or of judicial opinions, deliberately hold them to be unconstitutional.
If public opinion is to decide constitutional questions, instead of the public functionaries of the government in their deliberate discussions and judgments, (a course quite novel in the annals of jurisprudence,) it would be desirable to have some mode of ascertaining it in a satisfactory, and conclusive form; and some uniform test of it, independent of mere private conjectures. No such mode has, as yet, been provided in the constitution. And, perhaps, it will be found upon due inquiry, that different opinions prevail at the same time on the same subject, in the North, the South, the East, and the West. If the judgments of the Supreme Court (as it is more than hinted) have not, even upon the most deliberate juridical arguments, been satisfactory, can it be expected that popular arguments will be more so? It is said, that not a single constitutional question, except that of the Alien and Sedition laws, has ever been settled. If by this no more is meant, than that all minds have not acquiesced in the decisions, the statement must be admitted to be correct. And such must, under such a postulate, be for ever the case with all constitutional questions. It is utterly hopeless in any way to satisfy all minds upon such a subject. But if it be meant, that these decisions have not been approved, or acquiesced in, by a majority of the Union, as correct expositions of the constitution, that is a statement, which remains to be proved; and is certainly not to be taken for granted. In truth, it is obvious, that so long as statesmen deny, that any decision of the Supreme Court is conclusive upon the interpretation of the constitution, it is wholly impossible, that any constitutional question should ever, in their view, be settled. It may always be controverted; and if so, it will always be controverted by some persons. Human nature never yet presented the extraordinary spectacle of all minds, agreeing in all things; nay not in all truths, moral, political, civil, or religious. Will the case be better, when twenty-four different states are to settle such questions, as they may
please, from day to day, or year to year; holding one opinion at one time, and another at another? If constitutional questions are never to be deemed settled, while any persons shall be found to avow a doubt, what is to become of any government, national or state? Did any statesmen ever conceive the project of a constitution of government for a nation or state, every one of whose powers and operations should be liable to be suspended at the will of any one, who should doubt their constitutionality? Is a constitution of government made only, as a text, about which, casuistry and ingenuity may frame endless doubts, and endless questions? Or is it made, as a fixed system to guide, to cheer, to support, and to protect the people? Is there any gain to rational liberty, by perpetuating doctrines, which leave obedience an affair of mere choice or speculation, now and for ever?
