Vital importance of the issue. The Federal government should be allowed to select the means necessary to carry into effect tion. In 1819, for example, the Court upheld the liberal construction of the Constitution in the celebrated case of M'Culloch vs. the State of Maryland. The following are some extracts from the decision in this case: In the case now to be determined, the defendant, a sovereign state, denies the obligation of a law enacted by the legislature of the Union; and the plaintiff, on his part, contests the validity of an act which has been pas ed by the legislature of that state. The Constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the Union and its members, as marked in that Constitution, are to be discussed; and an opinion given, which may essentially influence the great operations of the government. We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion. with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, granted to let it be within the scope of the Constitution, and all means which it by the Constitution. are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. . . . powers Maryland contends for a dangerous principle. Limits of the power of the states to tax. If we apply the principle for which the state of Maryland contends, to the Constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the states. The American people have declared their Constitution, and the laws made in pursuance thereof, to be supreme; but this principle would transfer the supremacy, in fact, to the states. If the states may tax one instrument, employed by the government in the execution of its powers, they may tax any and every instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the customhouse; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their government dependent on the states. . The court has bestowed on this subject its most deliberate consid- The unanimous eration. The result is a conviction that the states have no power, decision of by taxation or otherwise, to retard, impede, burden, or in any manner the court. control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the Constitution has declared. We are unanimously of opinion, that the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void. . . . ... 23. The check and balance system 1 and balance system in But despite the supremacy of Federal law, it is not possible for The check the National government to become despotic. As we have seen, certain rights of both individuals and states are specifically safe- the Federal guarded by the Constitution itself. In addition, the powers of the government. Federal government are so divided among the legislative, executive, and judicial departments that each of these constitutes a check upon the other two. The nature of this check and balance system was early described by James Madison, writing in the Federalist. When the Federal Constitution came before the people of New York for ratification or rejection, some of the citizens of that state objected that the new Constitution did not adequately provide for the separation of the legislative, executive, and judicial departments in the Federal government, so that, as the Constitution stood, some one department might acquire an undue amount of power. Madison Madison answered this objection in the Federalist in January, 1788, and defends the attempted to show that this objection was not valid. Early in Feb- tution. ruary, 1788, he continues his discussion of the check and balance system in the following language: 1 From the Federalist, Numbers 48 (47) and 51 (50). Consti The prob- ment The solution. Separation of appointing powers. Financial independ ence. . . . It is agreed, on all sides, that the powers properly belonging to one of the departments [of the Federal government] ought not to be directly and completely administered by either of the other departments. It is equally evident that none of them ought to possess, directly or indirectly, an over-ruling influence over the others, in the administration of their respective powers. It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive or judicial, the next and most difficult task is to provide some practical security for each against the invasion of the others. To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is that . . . the defect must be supplied, by so contriving the interior structure of the government, as that its several constituent parts may be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the [Constitutional] Convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own, and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. It is equally evident that the members of each department should be as little dependent as possible on those of the others for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. ... and bal ances are necessary. It may be a reflection on human nature that such devices should Why checks be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. . . . nature of the This policy of supplying, by opposite and rival interests, the Universal defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly principle. displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. ... The rights of the people doubly In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic secure. of America, the power surrendered by the people is first divided between two distinct governments [the state and Federal governments], and then the portion allotted to each is subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. . . . 1 24. Significance of the judiciary in American government 1 Section I of Article III of the Constitution vests the judicial power of the United States in one Supreme Court and in such inferior 1 From the United States Supreme Court decision in the case of Marbury vs. Madison, 1803. Power of the Supreme Court to pass upon the constitutionality of Federal statutes. Right of the people to establish their government. The Constitution is either paramount or it is not. courts as Congress may from time to time ordain and establish, while Section II of Article III defines the jurisdiction of the Federal courts. Nowhere does the Federal Constitution expressly confer upon the Supreme Court of the United States the power of declaring statutes invalid on the ground that they are contrary to the Constitution, nevertheless our Supreme Court exercises this power. Indeed, one of the distinctive features of American government is the right of this tribunal to act as the final and authoritative interpreter of the Constitution. This right was first asserted by Chief Justice Marshall in 1803 in the case of Marbury vs. Madison. The following is an extract from the decision in this case: ... That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. . . . The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative Act repugnant to it; or that the legislature may alter the Constitution by an ordinary Act. Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative Acts, and like other Acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative Act contrary to the Constitution is not law; if the latter part be |