true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. constitution Certainly all those who have framed written constitutions con- A written template them as forming the fundamental and paramount law is fundaof the nation, and, consequently, the theory of every such govern- mental. ment must be, that an Act of the legislature, repugnant to the Constitution, is void. . . . The duty of the court when a law is in opposition to the Consti It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if tution. both the law and the Constitution apply to a particular case, so that the court must decide hat case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary Act of the legislature, the Constitution, and not such ordinary Act, must govern the case to which they both apply. . . . Since judges take support the Constitution their an oath to It is apparent, [from illustrations contained in the full decision of the case], that the framers of the Constitution contemplated that instrument as a rule for the government of the courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? . . . How immoral to impose it on them, conduct if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! The oath of office, that too, imposed by the legislature, is completely demonstrative of the document. legislative opinion on this subject. must be governed by It is in these words: "I do solemnly swear that I will administer The oath. justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as . . . according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States." Why does a judge swear to discharge his duties agreeable to the Constitution of the United States, if that him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. . Questions on the foregoing Readings 1. What was an important obstacle to the ratification of the Constitution? 2. How was this objection met? 3. What are the guarantees of personal liberty contained in Section IX of Article 1 of the Constitution? 4. Outline the guarantees of personal liberty contained in the first nine amendments to the Constitution. 5. What controversy took place in the Constitutional Convention of 1787 over states' rights? 6. How was the dispute settled? 7. Outline the powers denied to the United States by the Federal Constitution. 8. What does the Federal Constitution say concerning interstate relations? 9. What guarantee to the states is contained in Section IV of Article IV of the Constitution? 10. What two types of provisions in the Constitution were designed to strengthen the position of the National government? 11. What powers are denied to the states by the Constitution? 12. Enumerate the chief powers of Congress as laid down in the Constitution. 13. What are the constitutional powers of the President of the United States? 14. What power does the Federal government exercise with respect to new states and territories? 15. Distinguish between the strict and the liberal interpretations of the Federal Constitution. 16. What is the importance of the decision in the case of M'Culloch vs. the State of Maryland? 17. What was the issue in this case? 18. What was the decision of the court in this case? 19. What part did James Madison play in the contest over the ratification of the Constitution? 20. What, according to Madison, was the difficulty of protecting the three Federal departments against one another? 21. What was his proposed solution of this problem? 22. Why are checks and balances necessary in government? 23. How, according to Madison, does American constitutional government render the rights of the people doubly secure? 24. What is the significance of the decision of the Supreme Court in the case of Marbury vs. Madison? 25. Outline the decision of the court in this case. New problems arise to confront the young American nation. Washington believes it his duty to make certain recommendations to the American people. CHAPTER V THE PROBLEMS OF AMERICAN DEMOCRACY 25. Washington's charge to the nation 1 When, on April 30, 1789, the Federal Constitution was put into operation with George Washington as first President, the United States of America took on a new lease of life. But though the trials of the "critical period" gradually declined and finally disappeared, other problems confronted the young nation. These were the problems of a newly created state, projected suddenly into the family of nations, and obliged, because of this new position, to grapple with numerous foreign as well as purely domestic issues. No one comprehended more clearly than George Washington the content and significance of these problems, and no one more earnestly urged their solution. At the conclusion of his second term of office, Washington addressed a solemn farewell to the American people, notifying them of his decision not to accept a third term, and protesting his devotion to the nation. The following are extracts from the remainder of his Farewell Address: ... Here, perhaps, I ought to stop. But a solicitude for your welfare, which cannot end but with my life, and the apprehension of danger, natural to that solicitude, urge me, on an occasion like the present, to offer to your solemn contemplation, and to recommend to your frequent review, some sentiments, which are the result of much reflection. . . . These will be offered to you with the more freedom, as you can only see in them the disinterested warnings of a parting friend, who can possibly have no personal motive to bias his counsel. The unity of government, which constitutes you one people, is also now dear to you. It is justly so, for it is a main pillar in the 1 From George Washington, Farewell Address. edifice of your real independence; the support of your tranquillity at home; your peace abroad; of your safety; of your prosperity in every shape of that liberty which you so highly prize. . . . innovations Toward the preservation of your government, and the permanency He warns of your present happy state, it is requisite, not only that you steadily against discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. . . . ... Let me now . . . warn you in the most solemn manner against and party the baneful effects of the spirit of party, generally. . . . The al- spirit. ternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction . . . turns this disposition to the purposes of his own elevation, on the ruins of public liberty. . . . ... The necessity of reciprocal checks in the exercise of political The check power has been evinced by experiments ancient and modTo preserve them must be as necessary as to institute ern. them. and balance system. opinion. Promote . . as an object of primary importance, institutions Public for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened. As a very important source of strength and security, cherish public credit. foreign influences Observe good faith and justice toward all nations. Cultivate He warns peace and harmony with all. . . . [But] against the insidious wiles against of foreign influence . . . the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the baneful foes of republican government. . . Europe has a set of primary interests, which to us have none, or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate our |