Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1870-01-14
ORRESPONnENCE
SENATOR DRAKE BILL AND
SPEECH.

The supreme COurt when deciding
the case, NARBURY VS.. MADISON, By
way Of illustrating that the Constitu
ton was superior to an ordinary &C
OF Congress, used this argument:
at Is declared that no tax or duty
shall be levied on articles exported from
any State Suppose a duty on expor
of cotton, OF tobacco, OF of flour, and
suit instituted TO recover it, ought judg
ment TO b~erendered in snch a case, ought
the judgef to close their eyes on -he Con.
sti,ution and only see the lsw?"/
"The Constitution declares that no bill
Of atrainder or er post fact0 law shall be
passed. II, however, such a bill should
be passed, and a person be prosecuted IN
der it, must the Court condemn to death
the victims whom the Constitution en-
deavors 20 pr~eserve?'
The Senator, commentingon this ar
gument by the Court, says:
Cases are supposed Of Congress pass
ing acts in direct q seltevident repug-
nancy to the Constitution, and the ques-
lion S asked whether the courts would be
bound 10 enforce such acts?"
Again:
THE argument drawn by the Court
from the argument by the cases supposed,
even if considered TO possess force, goes
10 prove nothing but the right oftheC Court
"a Just hat class Of eases, to hold an act Of
Congress unconstitutional"
Here is a distinct and unequivocal
acknowledgment by the Senator, that
4" IN just that class Of cases." to-wit:
the cases mentioned by the Court, a
tax on cotton or -four exported, or an
e post JaejO law, the courts have the
power TO declare acts Of Congress IN
constitutional. Elsewhere we have
shown his acknowledgment that the
Court had; indeed, that it was the
only tribunal which has the power to
decide upon conflicting laws.
With these two admissions the Sen
ator has left himself nothing to stand
upon. It's said to be a maxim with
reasoners that from a3OthiRg nothing
remains.
The Senator is inconsistent with
himself. In another part of his speech
ne holds this language: "No power
can be drawn to one department of
the Government, from q supposed
case Of possible, selfevident violation
ofthe Constitution by another depart
ment, for such a violation is not to be
supposed" Now it so happens that
the Senator makes out, in his own
person, the very case which he says
" Is not to be supposed" In his speech
he says there is " present and urgent
need" for Congress to pass his bill, for
the reason, that there are a number of
cases now pending before the Supreme
Court, which call in question the con-
s~dtutionality Of acts Of Congress.
With Others named by the Senator,
the cotton tax case.
It 50 happens that case calls in ques-
tion the constitutional power OF Con-
gress TO tax cotton in tra8situ to
export. If they cannot tax an article
of export, can they tax it on its way
10 be exported This is precisely one
Of the class Of cases" which the Su-
preme Court said could not be taxed,
which the Senator admitted to be a
4" palpable and self-evzdent violation
Of the Constitution" And yet, not
withstanding this admission, he is
urging upon Congress to arrest and
smother the investigation Of an act of
Congress which perpetrates a palpable
violation upon the constitutional
rights Of citizens in a large section Of
the country. The Senator supplies
the proof not only that it is to be
supposed" but that he is willing
and anxious as a Senator, to prevent
inquiry, whether the citizens have
been wronged or not.
In another part Of his speech, fear
ing he had madean admission fatal to
his whole argument, he takes it back
by saying: 81 mean not to be under
stood as admitting that even in the
extreme cases put by the Court, the
Judicial power is charged by the Con-
stitution with the protection of the
people against the unconstitutional
acts of their own representatives.
Take those cases, take any cas of di-
rect and palpable legislative violation
of the Constitution, and what name
would you give it? 1t could be called
by no other name than ReUOhaiOHg
For its design would be, a its proba-
bic effect, TO overthrow the COnstrtu-
ton in some Of its parts; and any such
legislation is, in its very essence, an
act Of BeroltHioal
We now see what the Senator's doc
trines tend TO, verifying the old adage
give him rope and he viii hang him
self" They need no comment. 1t is
trumpet-tongued against rebels; and
yet this preacher against rebels is pro-
mitigating doctrines which teach the
people, rather than submit to the
quiet constitutional way of deciding
questions by the courts, to take the
course which leads TO revolution-
with revolution to war. And this is
the bloody alternative commended by
the Senator. The argument over
throws itself, and possibly may the
Senator. The people are not yet pre-
pared for such measures, and woe TO
any simpleton who mayfollow HIM.
There is one more chance left for the h
Senator. "With great heart he heaves
away this storm" by calling attention
to another decision Of the court in the
case United States VS.. Coombs, in
which the court decided, ''If upon a
lust Interpretation of the terms Of an
act, Congress have exceeded their ]
constitutional authority, it would be-
come our duty to sayso." "Once con-
cede," says the Ex-senator, ''that becOn-
stitutionality Of an act of Congress is
to be determined by the r~atioc1laftpe L
ao,ney Of Judges of the courts, and you a
have astandard which. without disre- 1
spect, might be said to be somewhat a
uncertain" f
By arafi0cinQAge -2oEersS we nn-1G