Take another case, which is very likely to occur. Congress have the unlimited power of taxation. Suppose them also to assume an unlimited power of appropriation. Appropriations of money are made to establish presses, promote education, build and support churches, create an order of nobility, or for any other unconstitutional object; it is manifest that in none of these cases could the constitutionality of the laws making those grants be tested before the Supreme Court.
It would be in vain that a state should come before the judges with an act appropriating money to any of these objects, and ask of the court to decide whether these grants were constitutional. They could not even be heard; the court would say they had nothing to do with it; and they would say rightly. It is idle, therefore, to talk of the Supreme Court affording any security to the states, in cases where their rights may be violated by the exercise of unconstitutional powers on the part of the federal government. On this subject Mr. Madison, in his Report, says: "But it is objected that the judicial authority is to be regarded as the sole expositor of the Constitution in the last resort; and it may be asked, for what reason the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day, and in so solemn a manner.
"On this objection it might be observed, first, that there may be instances of usurped power which the forms of the Constitution would never draw within the control of the judicial department."
"But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it.
"However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve."
If, then, the Supreme Court are not, and, from their organization, cannot be, the umpires in questions of conflicting sovereignty, the next point to be considered is, whether Congress themselves possess the right of deciding conclusively on the extent of their own powers. This, I know, is a popular notion, and it is founded on the idea that, as all the states are represented here, nothing can prevail which is not in conformity with the will of the majority; and it is supposed to be a republican maxim, "that the majority must govern."
Now, will any one contend that it is the true spirit of this government, that the will of a majority of Congress should, in all cases, be the supreme law? If no security was intended to be provided for the rights of the states, and the liberty of the citizens, beyond the mere organization of the federal government, we should have had no written constitution, but Congress would have been authorized to legislate for us in all cases whatsoever, and the acts of our state legislatures, like those of the present legis-
