They have long since dispersed into foam and fallen back into the deep. The character of our first President stands as lofty and pure and symmetrical as the monument which a grateful country has erected in the city that bears his name. Seven years of his administration had passed, the time for the election of his successor approached, and he gave to our country his memorable Farewell Address. Already it had become manifest that the essential principle of the American system to which I have called your attention was irksome and burdensome to impatient members of the community. To them he addressed the following counsels, which are as timely today as they were on the seventeenth of September, 1796, when they were first given to our people: "It is important, likewise, that the habits of thinking, in a free country, should inspire caution in those intrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding, in the exercise of the powers of one department, to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the guardian of the public weal, against invasions by the others, has been evinced by experiments, ancient and modern; some of them in our own country, and under our own eyes. To preserve them must be as necessary as to institute them. If in the opinion of the people, the distribution or modification of the constitutional powers be, in any particular, wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change or usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance, in permanent evil, any partial or transient benefit which the use can, at any time, yield." Three years passed away. Washington was taken from us. In January, 1800, Congress asked one of its members, General Lee, of Virginia, to deliver the funeral oration. Let me read to you from this memorable address: "How novel, how grand the spectacle! Independent, states stretched over an immense territory, and known only by common difficulty, clinging to their union as the rock of their safety, deciding by frank comparison of their relative condition, to rear on that rock, under the guidance of reason, a common government, through whose commanding protection, liberty and order, with their long train of blessings, should be safe to themselves, and the sure inheritance of their posterity.” He concludes with the striking peroration: "Methinks I see his august image, and hear, falling from his venerable lips, these deep-sinking words: ""Cease, sons of America, lamenting our separation; go on, and confirm by your wisdom the fruits of our joint councils, joint efforts, and common dangers. Reverence religion; diffuse knowledge throughout your land; patronize the arts and sciences; let liberty and order be inseparable companions."" In the very year of this oration, Thomas Jefferson was elected the third President of the United States. He delivered his inaugural address on the fourth of March, 1801. I conclude my quotations from the fathers of the Republic by reading to you a portion of this address: "I know, indeed, that some honest men fear that a republican government cannot be strong—that this government is not strong enough. But would the honest patriot, in the full tide of successful experiment, abandon a government which has so far kept us free and firm, on the theoretic and visionary fear that this government, the world's best hope, may, by possibility, want energy to preserve itself? I trust not. I believe this, on the contrary, the strongest government on earth. I believe it the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern." These references to the original archives of the Republic show clearly that the founders of our government believed that a State could not prosper unless the individual members were prosperous, and that no individual member could prosper unless he was secure in the right to earn an honest living and to enjoy the fruit of his labors. Liberty and order were to be inseparable. They therefore ordained and established the Constitution of the United States of America, "In order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessing of liberty to ourselves and our posterity." The Third Article of this Constitution provides: "Section 1. The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain or establish. "Section 2. The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States and treaties made, or which shall be made, under their authority." Thus the Supreme Court is made by the Constitution a co-ordinate branch of the United States Government. In Article Six, Paragraph two, we have the final declaration: "This Constitution and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." Under these provisions the Federal Circuit Courts, in 1791 and again in 1795, held that it was not only the right but the duty of the Court to decide that an act of the legislature in violation of the Constitution was void.1 How otherwise could the provision be enforced that the Constitution was the Supreme Law? If a law is supreme, it must control. The only way to make its control effective is to enforce it. This enforcement is enforcing the authority that the people, in adopting the Constitution, gave to the Court. In short, the final authority is in the people, not in members of the legislature or in judges. These decisions were in 1803 followed by the Supreme Court in Marbury v. Madison.2 In that famous case Chief Justice Marshall, delivering the opinion of the Court, stated (176-7) with his customary clearness the reasons which led the people to confer this great power upon the courts: "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. 1 Van Horne v. Dorrance, 2 Dallas 21 Cranch 137. “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. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? 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 any 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." The famous debate in 1833 between Webster and Calhoun upon the right of secession turned upon this very point. Calhoun argued that the Constitution was a compact between sovereign States, that there was no common arbiter to decide disputes and that each State must therefore decide for itself. Webster argued: is a government That there is a "That the Constitution of the United States proper, founded on the adoption of the people. supreme law, consisting of the Constitution of the United States, acts of Congress passed in pursuance of it, and treaties, capable of assuming, and actually assuming the character of a suit, the Supreme Court of the United States is the final interpreter." and in cases It cost this nation thousands of lives and billions of money to establish and enforce this proposition of Daniel Webster. Those who assail it now are, in my judgment, as really secessionists as Beauregard was when he fired on Fort Sumpter. They are just as honest and just as deluded. In pursuance of the authority thus conferred by the Constitution, the Supreme Court rendered a series of decisions. which really made us a nation. These declared that certain acts of local legislatures were void, and that the supreme law of the United States must control. In McCullough v. Maryland, the Court held that the Federal Government could not be controlled in the exercise of its functions by the taxing power of the State. In Gibbons v. Ogden, it held that commerce between the States could not be controlled by an act of the State Legislature. 5 In the Bank of Augusta v. Earle, it held that a corporation incorporated under the laws of one State had a right to do business in another. In the Passenger Tax Cases, the Supreme Court held that State statutes undertaking to regulate and control immigration into the United States were in violation of the Federal Constitution and that whole subject was a part of foreign commerce, which was under the exclusive jurisdiction of the Congress. In every one of these cases the State Court had decided in favor of the validity of the obnoxious State statute. It is not too much to say that if these four leading cases had been decided otherwise the United States would not have been a nation. Its government would not have been worth preserving, and would certainly have gone to pieces at the first serious assault. A nation whose agencies can be taxed out of existence by a part of the nation, whose citizens have no right to trade or do business outside of the limits of their own local jurisdiction, and whose foreign commerce is subject to the control of each particular part, is no nation at all. The bond of such a country would be a rope of sand. It was then essential to our national existence that these several statutes which local legislatures had adopted should be annulled by some superior authority and that the rights which they assailed should in some way be vindicated. There are only two ways in which such rights can be secured. One is peaceable, by an appeal to the courts; the other is forcible, by an appeal to arms. When the subject 4 Wheat. 316. ⚫9 Wheat. 1 13 Pet. 519. |