Debates in the Several State Conventions/Volume 4/Judicial System
Judicial System.
Senate, April 7, 1826.
Mr. VAN BUREN. It has been justly observed that "there exists not upon this earth, and there never did exist, a judicial tribunal clothed with powers so various and so important" as the Supreme Court.
By it, treaties and laws made pursuant to the Constitution are declared to be the supreme law of the land. So far, at least, as the acts of Congress depend upon the courts for their execution, the Supreme Court is the judge whether or no such acts are pursuant to the Constitution, and from its judgment there is no appeal. Its veto, therefore, may absolutely suspend nine tenths of the acts of the national legislature. Although this branch of its jurisdiction is not that which has been most exercised, still instances are not wanting in which it has disregarded acts of Congress, in passing upon the rights of others, and in refusing to perform duties required of it by the legislature, on the ground that the legislature had no right to impose them.
Not only are the acts of the national legislature subject to its review, but it stands as the umpire between the conflicting powers of the general and state governments. That wide field of debatable ground between those rival powers is claimed to be subject to the exclusive and absolute dominion of the Supreme Court. The discharge of this solemn duty has not been unfrequent, and certainly not uninteresting. In virtue of this power, we have seen it holding for nought the statutes of powerful states, which had received the deliberate sanction, not only of their legislatures, but of their highest judicatories, composed of men venerable in years, of unsullied purity, and unrivalled talents—statutes, on the faith of which immense estates had been invested, and the inheritance of the widow and the orphan were suspended. You have seen such statutes abrogated by the decision of this court, and those who had confided in the wisdom and power of the state authorities plunged in irremediable ruin—decisions final in their effect, and ruinous in their consequences. I speak of the power of the court, not of the correctness or incorrectness of its decisions. With that we have here nothing to do.
But this is not all. It not only sits in final judgment upon our acts, as the highest legislative body known to the country,—it not only claims to be the absolute arbiter between the federal and state governments,—but it exercises the same great power between the respective states forming this great confederacy, and their own citizens. By the Constitution of the United States, the states are prohibited from passing "any law impairing the obligation of contracts." This brief provision has given to the jurisdiction of the Supreme Court a tremendous sweep. Before I proceed to delineate its tendency and character, I will take leave to remark upon some extraordinary circumstances in relation to it. We all know the severe scrutiny to which the Constitution was exposed—some from their own knowledge, others from different sources. We know with what jealousy, with what watchfulness, with what scrupulous care, its minutest provisions were examined, discussed, resisted, and supported, by those who opposed and those who advocated its ratification. But of this highly consequential provision, this provision which carries so great a portion of all that is valuable in state legislation to the feet of the federal judiciary, no complaints were heard, no explanation asked, no remonstrances made. If they were, they have escaped my researches. It is most mysterious, if the Constitution was then understood as it now is, that this was so. An explanation of it has been given—how correct I know not.
The difficulties which existed between us and Great Britain, relative to the execution of the treaty of peace, are known to all. Upon the avowed ground of retaliation for the refusal of England to comply with the stipulation on her part, laws were passed, between the years 1783 and 1788, by the states of Virginia, South Carolina, Rhode Island, New Jersey, and Georgia, delaying execution, liberating the body from imprisonment on the delivery of property, and admitting executions to be discharged in paper money. Although those laws were general in their terms, applicable as well to natives as to foreigners, their chief operation was upon the British creditors; and such was the leading design of their enactment. England remonstrated against them as infractions of the stipulations in the treaty, that creditors, on either side, should meet with no impediments to the recovery of the full value, in sterling money, of all debts previously contracted, and attempted to justify the glaring violations of the treaty, on her part, on that ground. An animated discussion took place between the federal government and Great Britain, and between the former and the states in question, upon the subject of the laws referred to, their character and effect. It was during this time that the Constitution was formed and ratified. It is supposed that the difficulties, thus thrown in the way of adjustment with England, through the acts of the state governments, suggested the insertion in the Constitution of the provision in question, and that it was under a belief that its chief application would be to the evil then felt, that so little notice was taken of the subject.
If it be true that such was its object, and such its supposed effect, it adds another and a solemn proof to that which all experience has testified, of the danger of adapting general provisions for the redress of particular and partial evils. But whatever the motive that led to its insertion, or the cause that induced so little observation on its tendency, the fact of its extensive operation is known and acknowledged. The prohibition is not confined to express contracts, but includes such as are implied by law, from the nature of the transaction. Any one conversant with the usual range of state legislation, will at once see how small a portion of it exempt, under this provision, from the supervision of the seven judges of the Supreme Court. The practice under it has been in accordance with what should have been anticipated.
There are few states in the Union, upon whose acts the seal of condemnation has not, from time to time, been placed by the Supreme Court. The sovereign authorities of Vermont, New Hampshire, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, Missouri, Kentucky, and Ohio, have, in turn, been rebuked and silenced, by the overruling authority of this court. I must not be understood, sir, as complaining of the exercise of this jurisdiction by the Supreme Court, or to pass upon the correctness of their decisions. The authority has been given to them, and this is not the place to question its exercise. But this I will say—that, if the question of conferring it was now presented for the first time, I should unhesitatingly say, that the people of the states might with safety be left to their own legislatures, and the protection of their own courts.
Add to the immense powers of which I have spoken those of expounding treaties, so far, at least, as they bear upon individuals, citizens or aliens,—of deciding controversies between the states of the confederacy themselves, and between the citizens of the different states; and the justice of the remark will not be questioned, that there is no known judicial power so transcendently omnipotent as that of the Supreme Court of the United States.
Let us now consider the influence which this ought to have upon our legislation. It would not be in accordance with the common course of nature, to expect that such mighty powers can long continue to be exercised, without accumulating a weight of prejudice that may, one day, become dangerous to an institution which all admit to be of inestimable value. It is true, as has elsewhere been said, with apparent triumph, that the states whose legislative acts have successively fallen under the interdiction of the court have excited little or no sympathy on the part of their sister states, and, after struggling with the giant strength of the court, have submitted to their fate. But, sir, it is feared that this will not always be the case. Those who are most ardent in their devotion to this branch of the government, knowing the feelings produced by these decisions in those states affected by them,—sensible that those feelings are rather smothered, than abandoned upon conviction of their injustice,—fear that, by adding another and another state to the ranks of those who think they have reason to complain, an accumulation of prejudice may be produced that will threaten, if not endanger, the safety of the institution.
April 11, 1826.
Mr. WOODBURY. The proposed bill not only alters the system for local purposes, by requiring the attendance of an additional judge at the Circuit Court in regions of country not so populous as those where the judges of the Supreme Court now attend, but it alters the system for general purposes, by enlarging the Supreme Court itself one half its whole original number; by leaving its quorum so that contradictory decisions may constantly be made without any change in the court itself; and by increasing it to as great an extent as a majority of its present quorum,—so that new results may possibly be produced in all its grand supervising powers over each state, and over the whole confederation.
It is thus that a principle lurks in the last effect of this great alteration, which, in the opinion of many, should carry anxiety and dismay into every heart; because, among other objections, it places at the mercy of legislative breath, in any moment of overheated excitement, all that is valuable in any constitutional judgment on its records. We have only, as in this case, to add a number to any court sufficient to balance a majority of its quorum, and, by a union of feeling with the appointing power, secure judges of certain desirable opinions; and any political or constitutional decision can, in the next case which arises, be overturned. Every security is thus prostrated. The system is not extended, but is, in principle, destroyed; for thus does this increase open an avenue to a radical change in the highest functions of one great department of our government, and a department, too, of all others the most endangered by any change, because, in its very nature, designed for permanency, independence, and firmness, amidst those tempests which at times convulse most of the elements of society.
Gentlemen must perceive that I speak only of the general tendency and alarming character of such an increase, without reference to the motives which have now recommended it. They are doubtless pure. But its propriety is to be tried by the reasons for it, and not by motives. * * *
If this system is to be extended to the six new states, because most excellent, without regard to the effect of such an extension on the Supreme Court itself, and without regard to population or expense, then why not extend it to every part of the Union now destitute of it? When gentlemen talk of equality and broad American grounds,—when they, with indignation and justice, disdain sectional views and favoritism,—why create new circuits for the people in these new states, and not, at the same time, create them for more than three times as many people, now destitute of such circuits, in Western New York, Pennsylvania, and Virginia? For, if the circuit system of itself be superior, and therefore, without regard to other circumstances, is to be extended to the west and south-west, for the safety and advantage of about half a million of people now destitute, then, surely, a million and a half of people, in the three great Atlantic states, are equally entitled to its security and blessings.