Constitutional Whig. [volume] (Richmond, Va.) 1824-1832, 1830-02-09

Lot us suppose that the Commonwealth of Virginia
stands alone on this continent-nono other, with
which to form any compact, confederation, or Union
Let suppose the ffeenien. or the freehoders, or
any other class in whom the exclusive right OF GO
vernment may be recognized, to meet together, tor
the purpose of establishing constitutional govern
ment Letus suppose then, to recognize in each
other, perfect iadieidaaHys-to declare unanimous
ly, first truth. anterior to the formation of the
social compact into which they are ABBOTT to enter,
that each individual freeman freebooter is free and
independent Of the rest. That he shall not be sub
ilect to any power other than may be delegated By
the contemplated constitutions and that the exercise
any power not delegated, by any allbe Junction
aries created by that constitutions shall be void. la
wing laid this foundation they proceed with the SUI
pers;ructure They delegate legislative powers, to
make laws; judicial powers, to interpret and apply
the laws; executive powers, to execute the laws
They deem their work complete, and they break up.
i Yhe new government goes incorporation. Gow
long will it continue in operations The legislative
powers have been strictly defined; and the legislature
commence the exercise of those powers, with de
termination 10 observe most scrupulouslv the r,re-
scrl5ed limits. Laws are enacted-These laws come
IN the ordinary course, under the action Of the Judi
cary Generaliv, they are uneHceptionabe; but
there is one or more among them, which, to the ud
ges appear clearly unconstitutional However hon
est the intentions Of the Legislature may have been
these laws, according to the judges ap ehensiu of
the limits prescribed TO the leTtsature transcend
those limits. Here is Gileru1a ss;la, the iudqes
act IN accordance with their views OF the coussi
!
tsc legislature? They lock into the constitution: they
J md no functionary created to decide which of the
conflicting views IS the right Here then is Il
aicny inherent III the nature their creation for
which the trainers vi the constitution have omitted to
provide Bat the nature Of things requires that il be
surrounded Tie judges arc under an absolute ne
esSs3ty for the time being to they cannot avoid
AcTING) upon the one the other OF the Two rrn-
cip!es: that eir shall prevail or that those qt
Tie legislature shall prevail The world cannot be
made TO stand still, until the trainers of the constltu-
ton shall provide for this dificutythe operations
OF nature cannot be arrested and held in suspense
Iame VIII move on. Suppose man has been inpr-
sonea under law which the judges deem uncon st-
tutonal lie mist either remain under tie opera
ton OF tic law, or be relieved from It's operaton-
ms is one instance OF the absolute necessity which
attends constitutional government that either some
Judge of constitutional questions be established by
tie Creators of the governments Or if this has been
omitted, that each Of the unctionucs under The con
stitu'ion should ACT (agoin say they cannot avoid
ncNaSJ upon his own views. the views Of one of
his co -ordiuates
The above difficulty arises from difference Of orn
ION between one fnctfoary and another. Bat there
IS SECOND crss of difficulties eauallv Inherent IN
the SUBJECT; and leaning to an absolute necessity
equally unavoldable They arise from differences Of
opnlon. between one IF the Ha5ciats yuYies to the
coapact-one Of the creGors of the f,tctioia, les
oaa ne fuictionarics themselves. One of the soye-
reign freeholdcrs is summoned before the judiciary
Cohscientiousy deeruing the law which he has viola
n
guage: This lazy unconstitutional and therefore
1y re fundamental principle OF the compact 10 which
| aIu party, roid. have consequently commit ed
no offence. However dIfferent may be yoar opinion
as to the consttuonality of the law recognize in
you no authority TO decide upon the Question Look
INTO your charter! You will find yourselves invested
with authority to determine whether have violated
the law; but With none whatever determine efetl.-
er the lay be constitutional Unconstitutional -
THIS question Of which claim to be the iodes
Tor myself. The fundamental principle of the com
pact requires that should Be. 1t would otherwise
be n1ockery-i should, in practical point of vicw
nave subjected myself to unlIn'ited powers in your
hands" What Is the Judge to do, Act io ms.
either upon his own views OF the constitutonaty of
the law or upon those of the Individual tarlv 10 the
compact The man must either remain III prison. or
De discharged. The proceedings against hin, must
either Do arrested, go on 4 similar difficulty
might occur between the Legislative fanctionary and
one off creators who should on the ground of un
constitutionality, SEE fit to prohibit the enactment of
a law IN contemplation.
Here then is another dilemma, in which the func-
tlonar!es under constitution will inevitably find
themselves; unless fraraers have provided 5,dre
Of tie constitution: not only as to questions arsi5n
among the functionarIes but as the questions which
VIII be perpc,ually arising between those flnctsna
res and the several individuals by whose ioint act
they were called Ilto existence.
This is another obvious fact to which Mr.. Webster
pointed; such Judge, he termed "the kew stone TO
the arch, without which it could not Tor moment
stand"
have introduced the above imaginary case for a
purpose very obvIous and very legitimate. The pnr-
pose Of dvest1ng the subject Of terms and associa
tons CT ideas connected with preudices of the most
binding powsr-the purpose Of giving truth fair play
With the reader mind. will now maxi an application
to the reat case of the facts, the ncontroyerible
facts therein held up to view.
For the individual men whom we have supposed to
meet together and establish constitutional functional
res let Us substitute individual Sta,es-comn1ualties
perfectly sovereign, & independent ofcach other No
further Su5s5tutton--and but one addition--is roui
site to convey just idea of the Govt Of the IT, s. of
America The addition IS this individual n,s, as tley
donot consist of separately existing units cannot GRE
ate tuuctonures to act separately on the constituent
elements Of the parties to the compact establishing
those iunctonares. But individual ates as they do
consist OF scpcrstely existing units or men can esta
bsh unct1onares 10 act separately on their consttu
ent clements This Gun be done 6, this has been done
The sovereign States who constitute this Union on
creating certain commun agents for all the parties to
the compact establishing those agents, authorized
them to act separately on the individual men com