The Portland daily press., 1865-12-16
Judge Parsons on the Power of oonsre.

al Congress, from the pen of Hon. Theophilus
Parsons. The chief application of the argu-
ments contained in this article is to that
clause of'the Constitution guarantying "a re-
publican form ofGovernment;" !" although those
arguments must apply with equal force to any
other question which may call for inquiry into
the nature and origin Of the powers vested in
| Congress. . : -...... -....
The Judge remarks in the outset that in
considering the question whether Congress
possesses certain power, we should be care
ful not to embarrass and complicate the real
matter at issue by any considerations of the
good or i'll use which Congress is likely to
make of such power, but should keep our
selves free from this temptation to a partial
construction. "If then we would determine
nationally whether Congress may do certain
thing, let us carefully avoid any consideration
of the effect.of any particular use Of the pow
er. 1t is certain that these two questions, has
Congress this power, and what use should
Congress make of this power, are in them
selves perfectly distinct, and should be kept
distinct by the executive, by the Judiciary,
and by the people, in the consideration of
either question:
OF that clause ofthe Constitution at present
under debate, he says:
Some things are certain about this Clause
1t is not merely guaranty to each State that
10 shall have republican form of government,
but a guaranty to all the States that they shall
be republican. 1t is guaranty to each in the
interests OF all, and therefore guaranty to
all For we need not 60 far either in time or
space for proof that the institutions of one or
more States may be of the last Importance to
the rest. And it is moro than this. II is
guaranty to every citizen of every State that
that State, and every other State, shall be re-
publican. is l35I 81 l1 llav s-7v i7rl
1t is covenant of the United States. 1t
must be the duty of the United States to do
what it solemnly promises to do. 1t can do
this only by and through Congress. 1t is,
therefore, a duty of Congress to discharge this
duty OF the United States. And what consti-
tutional power has Congress in the premises
Certainly so much as is necessary for the per-
formance of the duty. Common sense die
tates this rule. Say to man only, IL author
ize you to do this" and you do not yet require
him to do it.; but say 81 require you to do
this" and most certainly you authorize him to
it as far as you can. The principle that moth
lil5 Cdi uC uuty WIlCu ID uOt WlLlllll tQ6 DOW
er, and therefore, that whenever there certain
ly exists a duty, this duty carries with it all
the power necessary to its performance, is SO
plain that we need not resort to the provision
in the Constitution which gives to Congress
power "to make all laws which shall be neces-
"sary and proper for carrying into execution
| "the foregoing powers, and all other powers
| ''vested by this Constitution in the govern
| "ment Of the United States.pg
rta ~.
| power necessary to guarantee to each State a
| republican form OF government; and the next
| question is, Who shall GnS,cer this first cues
| tiOn; or who shall determine what is repub-
| lican form of government, or what is necessa-
| ry to this form that if it must be done. and
what is so inconsistent with this form that it
must be prevented? 1t is obvious that this is
amost important question. My own conclu-
| sion is, that Congress, and Congress alone
must judge of this matter and determine this
| question.
| The PRESIDENT caEnot, excepting so far as
| his legislative functions extend. The people
cannot, except by changing their representa-.
tives and SO reversing the judgment. Nor is il
| easy to see how the question can come within
the jurisdiction OF the Supreme Court for any
practical purpose .'... rr--r.. -
I admit that this question, whether "repub-
| hcan" as it stands in the Constitution of the
| United States means aristocratic republican,
ism, or democratic republicanism, might be a
| question for judicial construction. But if this
| question be settled; if Congress, as j assume,
hold it to be democratic republicanism, and
the Supreme Court, as l also assume, hold the
same construction, then the jurisdiction of the
| court would seem to be terminated and ex-
hausted. No man or men in this country can
think or dare to say that the republicanism
| which our constitution guarantees is an aris-
| tocratic republicanis1n But after that, the
quetion is as to the reasonableness and pro-
| priety of this or that measure proposed as nee
essary to carry this guaranty of democratic
republicanism into effect. And it is precisely
here that the line of separation between the
| legislative department and the Judicial depart
ment comes in. Undoubtedly law Of Con-
| gress enacted for this purpose might violate
some other provision of the Constitution; and
this question, whether it did SO, might come
before the Supreme Court; but if Congress,
| endeavor by measures which it deems wise
and expedient, to give force to guaranty, and
the Supreme Court thinking these measures
| to be unwise and to the last degree inexpedi-
ent, for that reason declares a statute void, it
is plain that the Supreme Court undertakes to
| decide for Congress as to the wisdom and ex-
pediency of its measures. And the Supreme
Court cannot interfere on this point, unless
they propose to reverse the relation between
themselves and Congress, and to oust Con-
gress ofits legislative function and legislative
discretion, and to assume and exercise this
function and this discretion in the stead of
Congress. And If the people agree with the
Supreme Court in thinking that this statute
is altogether inappropriate and unreasonable,
| tor all that it is the law of the land until the
people send representatives who repeal the OBJ
noxlous statute. -nsa;, n T.efr g s.Hi Be p.
The same reasoning applies to the power of
| Congress conferred or confirmed by the sec
ond clause of the Amendment ofthe Constitu-
ton now before the States; "Congress shall
have power to enforce this article by appropri-
ate legislation" And in case Congress should
abuse this power by foolish and unjust legisla-
ton, the remedy at hand is adequate and per-
feet. The people may send as their represent
atives men who will make the law an express
sion of their sentiment and an instrument of
their will. This is in accordance with our in
stitutions which aim at securing TO the soyer-
eign people an absolute control over the law Of
the land, and accomplish this, although this
control the people can exercise only through
the forms and by the means determined by
themselves in their constitutions. .
The concluding portion of Judge Parsons
argument is so lucid in statement, and bears
upon point SO important that we quote it
entire: ....- .....
| But is not Congress prohibited from inter
fering with the right of suffrage in any State
by the following provision of the Constitution
respecting the choice of members of the House
of Representatives? "The electors in each
estate shall have the qualifications requisite
'for electors of the most numerous branch Of
"the State Legislature" aoE-r $50 ffenil-s
Here may be just the case have sup
posed above, of a law of Congress which is
intended to give effect to one part of The Con-
stitution, violating some provision in another
part. This question would certainly be one
which the judicial department should deter
mine. But some considerations may be offer
ed in reference to it. ..... - 4 -~