the States, endangering life and property. Suppose contracts to be habitually broken, and no redress to be obtainable in the State courts. Suppose the police to be in league with the assassins. Suppose the most mischievous laws to be enacted, laws, for instance, which recognize polygamy, leave homicide unpunished, drive away capital by imposing upon it an intolerable load of taxation. Is the nation obliged to stand by with folded arms while it sees a meritorious minority oppressed, the prosperity of the State ruined, a pernicious example set to other States? Is it to be debarred from using its supreme authority to rectify these mischiefs?"
The answer is, Yes. Unless the legislation or administration of such a State transgresses some provision of the Federal Constitution (such as that forbidding ex post facto laws, or laws impairing the obligation of a contract), the National government not only ought not to interfere but cannot interfere. The State must go its own way, with whatever injury to private rights and common interests its folly or perversity may cause.
Such a case is not imaginary. In the Slave States before the war, although the negroes were not, as a rule, harshly treated, many shocking laws were passed, and society was going from bad to worse. In parts of a few of the western States at this moment, the roads and even the railways are infested by robbers, justice is uncertain and may be unattainable when popular sentiment does not support the law. Homicide often goes unpunished by the courts, though sometimes punished by Judge Lynch. So, too, in a few of these States statutes opposed to sound principles of legislation have been passed, and have brought manifold evils in their train. But the Federal government looks on unperturbed, with no remorse for neglected duty.
The obvious explanation of this phenomenon is that the large measure of independence left to the States under the Federal system makes it necessary to tolerate their misdoings in some directions. As a distinguished authority[1] observes to me, "The Federal Constitution provided for the protection of contracts, and against those oppressions most likely to result from popular passion and demoralization; and if it had been proposed to go further and give to the Federal authority a
- ↑ Judge Cooley.
