The Oxford intelligencer., 1861-01-30

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this right in the present crisis we would have
been ignoble and degenerate sons of our Illus
trious siresi
But look at the absurdity Of the thing in an
other point Of view. The 10th amendment to
the Constitution reserves to the States respect
lively, or to the people, all powers not delegated
10 the Federal Government nor forbidden to the
States. Did our fathers 1t the same time give
to the Federal Government the right to deter
mine authoritstively what these reserved powers
were, and whether they amounted to anything.
or noti If so, then this salutary provision,
(which was simply dcclaratory Of the legal rule
Of construction that necessarily resslted from
the nature Of the Constitution and the circum-
stances Of its origin,) was but a deception and a
cheat. For the Government that would have
usurped any power. would at once have justified
itself by determining that such power was not
among those reserved to the States, or to the
people. Otherwise it would stultify itself,
which no despotism was ever known to do on
question Of that sort, (unless forced to it) how
ever they may trife with consistency in other
respects: To usurp authority, and at the same
time admit the usurpation. would be to invite
resistance, and imperl the Government, not on
ly in the exercise Of. the usurpcd power, but
even in its lawful authority, and probably bring
about its total overthrow. Especially would
this be the case, if it were the government of a
free people; for when once such people have
had their jealousy aroused and their fears excited
by the exercise of arbitrary and unlawful pow
ers, their distrust will increase, and they are
not likely to rest satisfied until the government
is pulled down. and new one constructed upon
safer principles and more reliable and endu-
ring basis. Then it may be laid down as an
axiom in governmental science, that no govern
ment viii usurp the exercise Of power, and at
the same time admit that il is usurped Hence,
to have made the reservation in question, and
left the Federal Government the sole Judge as to
what those reserved powers consisted in, would
have amounted TO no reservation at all. But the
trainers of the Constitution were not simpletons,
to make such homogeneous provisions without
knowing what they were doing or knayes, who
desired to deceive the people and cheat them
out of their blood.bodghtq liberties. They were
wonderfully wise and tmsalfshly patriotic with
an undying and sslf-saapifciug devotion to the
cause Of liberty. They aell understood the in
valuable rights and important powers reserved
to the States, which, were necessary to the
preservation Of our FREQ institutions and that,
in case Of centralizing tendency and dcspotic
inclination in the Federal Government, these
reserved rights should constitute the last i'm
pregnable fortress in which Liberty should in
trench herself
But some say that the Supreme Court is tho
proper judge in such cases. II might be sui.
ficient answer to this position, to reply that the
Supreme Court is but one department Of the
Federal Government, and that what is not pos.
scsscd by the whole cannot be possessed by any
'ofits parts. If the right belongs to the Supreme
Court, it certainly resides in the Federal Gov.
crnment somewhere, which have shown is ut
tcriy rcpulsivc to the genius and spirit of our
institutions. ~
But will examine Ia: proposition moment
on other grounds .ldsny to the Court any such
power, mainly for two reasons: First no such
power was granted in the Constitution; and
second if granted, it would have been ncffect-
ual, because the very organization Of Court
is incompatible with the exercise Of such pow.
err. As to the first point, no power is given in
the Constitution to the Supreme Court, to deter.
mine political questions Its jurisdiction is
confined to the determination of rights of prop
erty and the investigation Of crimes committed
against the United States and for these purpo
scs within its Legitimate sphere its jurisdiction
and process are ample But what provision is
made for bringing purely political questions be.
| fore it2 How are they to get theres 1t de-
wolves upon those who assert this power Ia
show whereit is given, and how il is to be exer
ciscd. Who are to be the parties and how are
they to be brought into coTtI 1t must not be
forgotten, that those who framed the Constitu.
ton were trained up under the common law, and
were familiar with its principles. A great part
of them were learned lawyers, and understood
well all the bearings of that wonderful system
bothinits application to Government and to in
dividuals, and knew perfectly that courts, under
that system, had no power over purely politica
questions. 1t cannot be supposed, therefore
that they intended to give it any such-extraordi
nary jurisdiction, unless it were clearly and IN
mistakeably expressed in the instrument Or
the contrary, both public opinion and authority
concur in denying the existence of any such
power But will not extend this article by
quotations.
But other reasons influenced the members o
the Constitutional Convention in not giving suci
power to the Supreme Court The liberties o
the people, and the rights of the States, were too
precious, too dear to the parties concerned, to'
costly, to be left to the arbitrament of any
man, or set of men, hswcver wise. They knew
thatthe sacred ermine might be polluted, or tn
Judge become the miserable tool of arbitrar,
power The examples Of a Bacon and Jeffrey
were familiar to them. They wondered at
while they admired, the vast learning of tn
one, and yet had to mourn over his corruption
and they dcspised the other for his low obse
quiousness, and his vile brutality. They woul'
not therefore, expose these precious bOons L
the chances of being sold for "thirty pieces o
silver" or of being murdered by the judgmen
I