The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1844-03-26

| y
States geaerally, bst hsse only which shsl @ maze
In ps~swsNcs Of the Consltutinn have that venA.-
Thus the particular phFsssslesy Of the Cens"s'lcn
Of the United states conasms and sIengsaens .ne
principle supposed to Be saasntis to all written con-
situ.ions, that Law rspUgaAnt to ths CcnslMuuon
il void, and that courts A. we'll Ifother1 de-
parments, are bound BY that instrument"
After these extracts il will be totally unne-
cessary TO enter into any elaborate argument to
prove that the Executive, as well as the Courfs
and the Congress is bound by the Constitution
All dispassionate minds will at once acknowl-
edge that the analogy of reasoning with regard
TO the Legislature and the Judiciary, apply with
equal force TO the Executive. Hf0T@
No form of oath for the Legislature OF for the
Judiciary is set down in the Constitution, but
such is the extreme anxiety of that instrument
for the Executive obedience TO its provisions,
that an especial and precise form Of the oath to
be taken by the President is set on, in the instru-
ment itself, in the following words:
ri do solemnly swear Tor AFFIRM that will faith.
fully execute the Office Of President OF the United
States; and WILL to the best Of my ability, preserve,
protect and defend, the Constitution Of the United
States"
If this oath forms no rule for the government
of the Executive, cit is nought but solemn
n,ockery to take it :" to prescribe it, or to
take ii is equally a crime"
The very great and vital importance Of the
question 8 whether an act repugnant to the
Constitution, can become the law of the land"
will be ample apology for a further examination
Of the principles which the Supreme Court has
prescribed for its government. in cases arising
under the Constitution.
Speaking Of the power OF Congress to grant
charters of incorporation, in the case of McCul-
loch vs.. the State of Maryland, Nv Wheaton
400. March, 1919, that court says -
"The principle now contested was introduced At
very early period OF our history, has been recog-
Missed by many successive Legislatures, and has been
acted upon by the judicial department, in cases of
peculiar delicacy, as law of undoubted authority"
cit will not be denied" continues the C. J. Mar
shall, "thst bold and daring usurpation might be
resisted, after acquescence still longer and more
complete than this"
| Here is an express declaration that such case
more complete might be resisted: that is from
| 1871 to 1916: term Of twenty five years
Nullum tempus occurrit regi. And we have
the further assurance of that tribunal, by its acts
that doubtful question, which ought to receive
| a considerable impression from the practice Of
the Government, founded upon an exposition of
the Constitution deliberately established by le-
gisatve acts, on the faith of which an immense
property had been advanced, would not slightly
be dsregarded;" but yet, that the Supreme
Court will proceed to examine and consider,
whether such act be repugnant to The Con-
| stituti0n, or not?"
Upon the examination Of the case Of McCul-
had the Supreme Court found this law and the
practices under it in their opinion repugnant to
the Constitution Of the United States, that their
decision would have been in favor Of the Con-
stitution which they had sworn to support; and
not in favor of the precedents, and practices,
which they had not sworn TO support ThAy
would, it is true, Gas they have told us) not
lightly disregard this legislative act with its pre-
cedeut. and practices but il is no less true, that
they would have disregarded it, had it been
| found on their earnest and accurate examination
| repugnant 10 the Constitution Of the U. s. The
decision in this case is in strict harmony with
that of Marbury rs. Madison, where the Legis-
| lative, Executive, and Judicial expostions,
with regular, uniform, universal, and undispu
ted practice under it, did not permit the court to
shut their eyes TO the Constitution, and see only
the law, precedenls and practices. Why else
did the court enter upon the examination of the
constitu,ionaliiy Of the act Of Congress incorpo-
rating the Bank of the United States, in the
case of Mccullough rs. the State Of Mary land7
If the court did not mean 10 support the Consti
tuition, in the event the investigation should
prove adverse 10 the precedents and practices,
their examination OF this case must be deem
ed worse than farce. And again "this ques-
ton did not steal on an unsuspecfing Legisla
ture, and pass unobserred, but was completely
understood and opposed with equal zeal and
ability, and, after being resisted first in the
fair and open field Of debate, and afterwards
in the Executive Cabinet, with as much perse-
vering talent as any measure has ever expert
enced, and being supported by arguments which
convinced minds pure and as intelligent as
this country can boast of, it became law and,
after having been acted upon by The Judicial
department, in cases Of peculiar delicacy, as a
law Of undoubted obligation :" Yet, notwith-
standing all these plecedents, practices, and
acquiescences, the Sopreme Court, in 1919,
found itself IN duty bound and did enter upon
a most elaborate and CRITICAL investigation of
the Constitution, and law, and practices. in
this case the law, and precedents, and practices,
were found in strict harmony with the Consti
tuition ITSELF according TO the opinion Of that
tribunal, and consequently they decided that
this law is not repugnant to the Constitution.
| No one however who will examine this case