lative councils in the territories, would have been subjected to the revision and control of Congress. If the will of a majority of Congress is to be the supreme law of the land, it is clear the Constitution is a dead letter, and has utterly failed of the very object for which it was designed—the protection of the rights of the minority. But when, by the very terms of the compact, strict limitations are imposed on every branch of the federal government, and it is, moreover, expressly declared that all powers not granted to them "are reserved to the states or the people," with what show of reason can it be contended that the federal government is to be the exclusive judge of the extent of its own powers? A written constitution was resorted to in this country, as a great experiment, for the purpose of ascertaining how far the rights of a minority could be secured against the encroachments of majorities—often acting under party excitement, and not unfrequently under the influence of strong interests. The moment that Constitution was formed, the will of the majority ceased to be the law, except in cases that should be acknowledged by the parties to be within the Constitution, and to have been thereby submitted to their will. But when Congress (exercising a delegated and strictly limited authority) pass beyond these limits, their acts become null and void, and must be declared to be so by the courts, in cases within their jurisdiction; and may be pronounced to be so by the states themselves, in cases not within the jurisdiction of the courts, of sufficient importance to justify such an interference.
But what then? asks the gentleman. A state is brought into collision with the United States, in relation to the exercise of unconstitutional powers; who is to decide between them? Sir, it is the common case of difference of opinion between sovereigns, as to the true construction of a compact. Does such a difference of opinion necessarily produce war? No. And if not among rival nations, why should it do so among friendly states? In all such cases, some mode must be devised, by mutual agreement, for settling the difficulty; and, most happily for us, that mode is clearly indicated in the Constitution itself, and results, indeed, from the very form and structure of the government. The creating power is three fourths of the states. By their decision, the parties to the compact have agreed to be bound, even to the extent of changing the entire form of the government itself; and it follows of necessity, that, in case of a deliberate and settled difference of opinion between the parties to the compact, as to the extent of the powers of either, resort must be had to their common superior, (that power which may give any character to the Constitution they may think proper,) viz., three fourths of the states.
But, it has been asked, why not compel a state objecting to the constitutionality of a law to appeal to her sister states by a proposition to amend the Constitution? I answer, because such a course would, in the first instance, admit the exercise of an unconstitutional authority, which the states are not bound to submit to, even for a day; and because it would be absurd to suppose that any redress would ever be obtained by such an appeal, even if a state were at liberty to make it. If a majority of both houses of Congress should, from any motive, be induced deliberately to exercise "powers not granted," what prospect would there be of "arresting the progress of the evil," by a vote of three fourths? But the Constitution does not permit a minority to submit to the people a proposition for an amendment of the Constitution. Such a proposition can only come from "two thirds of the two houses of Congress, or the legislatures of two
vol. iv.65
