« AnteriorContinua »
erty belonging to the United States,” is the next one comprehended in this class.
It was required that this power should be vested in Congress, by considerations similar to those upon which rests the propriety of its possessing the power next preceding it; and it is accompanied by a condition, not only proper in itself, but which was probably rendered absolutely necessary by the jealousies and controversies that existed concerning the Western territory, and which provides that “nothing in the Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.!
The authority, thus restricted, is adapted to all the territorial rights of the Federal Government, beyond the limits of any of the states; but is not applicable, it seems, to a fortress which has never been actually ceded to the United States; nor to any land occupied by the General Government for any similar purpose, with the tacit consent of the state, although the title to the soil may have been conveyed to the United States. It is under this power that Congress claims authority to legislate for the Territories, erected in provinces, acquired, like Louisiana and the Floridas, since the adoption of the Federal Constitution. But if the Federal Government possessed authority to purchase them, there seems no necessity for resting the right of legislation in regard to them on such narrow and insufficient grounds, for the power of governing a territory is the inevitable consequence of the right to acquire and hold it.
VI. The guarantee by the “ United States to every state in the Union of a Republican form of government; to protect each of them against invasion ; and on application of the Legislature, or of the executive, when the Legislature cannot be convened, against domestic violence," may also be classed among the miscellaneous powers of the Federal Government, as it gives to it a right of interference to effect the objects of the guarantee.
Governments of dissimilar principles and forms have been found less adapted to a Federal coalition of any sort, than those of a kindred nature. - In a confederacy founded on Republican principles, and composed of Republican members, the paramount superintending government created by it ought certain. ly to possess the authority to defend the whole sys: tem against innovation; and the more intimate the union, the greater the interests of its members ir the separate institutions of each other, and the greater the right to insist that the respective forms of government under which the general compact was entered into should be substantially maintained. But a right implies a remedy, and nowhere else could an effectual remedy be found in such a case than where it is actually deposited by the Constitution. The mere stipulation, without the power to enforce its observance, would be of little value; hence the term “ guarantee" indicates that the United States are authorized to oppose, and, if possible, prevent every state in the Union from abandoning the Republican form of government. But the authority extends no farther, and it presumes the pre-existence of governments of the form guarantied. So long, therefore, as the Republican forms existing at the time the Constitution was adopted are continued by the states, they are guarantied by the Federal Government, and the Federal Constitution imposes no other restriction upon the alteration of the respective state constitutions than that they shall not vary from the Republican form. Whenever a state may choose to substitute another Republican government in place of that previously existing, it has a right so to do, and is equally entitled to claim for it the benefit of a Federal guarantee.
Protection against invasion is due from every society to the members composing it, and the latitude of the expressions used in the Constitution secures each state, not only from foreign hostility, but against the ambitious or vindictive enterprise of its more powerful neighbours. The protection against domestic violence is added with equal policy and propriety, as it affords the means of enforcing the guarantee before provided for, whenever a faction or minority in a state endeavours by violence to subvert the Republican form of its Constitution. It is by no means, however, confined to that particular case, nor that particular object, but extends to protection against the acts even of a majority of the people of a state, when directed to any object of unconstitutional violence. For, although it may at the first view appear inconsistent with the Republican theory either that the minority will have the power, or that a majority have not the right to subvert the government, yet mere speculative reasoning must in these cases, as in all others, be qualified by the lessons of practice and experience.
Unlawful combinations for purposes of violence may be formed by a majority of persons in a state, especially in a slaveholding state, as well as by a majority of a county, or other subdivision of a state; and if the authority of the state is bound in the latter case to protect the local magistracy, the Government of the Union is equally bound in the former to protect the state authority. Besides, there are certain parts of the state constitutions which are so in. terwoven with the Federal compact, that a violent assault cannot be made on the one without injury
to the other. The power in question, however, can only be exercised when the blow is directed against the state constitution and authority, or when it incidentally or indirectly affects the Government of the United States. Where the violence is immediately directed against the Federal authority, the General Government is invested with power to suppress it, independently of any requisition of the state government. But insurrections against the state governments will rarely require Federal interposition, unless the number of those concerned in them bears some proportion to the friends of the state constitution; and it will then be much better that the violence should be suppressed by the superintending power, than that even a majority in a state should be left to maintain its cause by a bloody and obstinate contest. The existence itself of the right of the General Government to interpose will, however, generally prevent the necessity of exercising the power; and In cases where it may be doubtful on which side justice lies, no better umpire could be desired in a state quarrel than the representative authority of the Union, who would be free from the influence of local interests, and from participation in local or personal animosities. VII. The power of Congress to “ ' propose
amend. ments to the Constitution, and call conventions for the purpose,” is the last to be referred to in this class of the Federal powers.
That useful alterations would be suggested by experience, could not but have been foreseen by the framers of the Constitution. It was requisite, therefore, that a mode for introducing amendments should be provided ; and that which was adopted guards equally against that extreme facility which would render the Constitution too mutable, and the extremo difficulty which might perpetuate its faults. The article in question provides that “Congress, whenever two thirds of both houses shall deem it neces. sary, shall propose amendments to the Constitution
; or, on the application of the legislatures of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of the Constitution, when ratified by the legislatures of three fourths of the states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by Congress : provided that no amendment, which
may be made prior to the year 1808, shall in any manner affect” the previous provisions respecting the importation of slaves, and the proportional imposition of capitation and other direct taxes; "and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”
Thus the General and State Governments are equally enabled to originate amendments, as their necess sity is pointed out by experience; and I have already had occasion to remark that those proposed or adopted since the ratification of the Constitution were few in number. They consist only of three : first, that which declares " that the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state ;" second, that which changed the mode of balloting for President and Vice-president by the electors; and, third, an amendment ordaining that, “ if any citizen of the United States shall accept, claim, receive, or retain any title of nobility or honour; or shall, without the consent of Congress, accept or retain any present, pension, office, or emolument of