court, on subject matter not properly cognizable before it, nor to those between parties not responsible to its jurisdiction. Who, then, is to decide this point? Shall the supreme court decide it for itself, and against all the world? It is admitted that every court must necessarily determine every question of jurisdiction which arises before it, and, so far, it must of course be the judge of its own powers. If it be a court of the last resort, its decision is necessarily final, so far as those authorities are concerned, which belong to the same system of government with itself. There is, in fact, no absolute and certain limitation, in any constitutional government, to the powers of its own judiciary; for, as those powers are derived from the Constitution, and as the judges are the interpreters of the Constitution, there is nothing to prevent them from interpreting in favor of any power which they may claim. The supreme court, therefore, may assume jurisdiction over subjects and between parties, not allowed by the constitution, and there is no power in the federal government to gainsay it. Even the impeachment and removal of the judges, for ignorance or corruption, would not invalidate their decisions already pronounced. Is there, then, no redress? The Constitution itself will answer this question, in the most satisfactory manner.
The tenth article of the amendments of the Constitution[supp 1] provides that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The powers thus reserved, are not only reserved against the federal government in whole, but against each and every department thereof. The judiciary is no more excepted out of the reservation than is the legislature or the executive. Of what nature, then, are those reserved powers? Not the powers, if any such there be, which are possessed by all the States together, for the reservation is to "the States respectively;" that is, to each State separately and distinctly. Now we can form no idea of any power possessed by a State as such, and independent of every other State, which is not, in its nature, a sovereign power. Every power so reserved, therefore, must be of such a character that each State may [ *85 ]*exercise it, without the least reference or responsibility to any other State whatever.
- ↑ Upshur here refers to the 10th amendment to the Constitution, which is the 12th article of the Bill of Rights. (Wikisource contributor note)
