STATES' EIGHTS. 



583 



The report of Mr. Madison, made and adopted in 

 the year 1800, sustains the propriety of the resolu- 

 tions of 1798. It discusses the constitutionality of 

 the Alien and Sedition laws, the character of those 

 laws as violating fixed principles of government, 

 and the propriety of the measures proposed by the 

 resolutions of 1793. 



The question of constitutionality is considered 

 mainly under the clause of the Constitution that en- . 

 ables Congress to provide for the public defence 

 and general welfare of the United States. He re- i 

 gards the authority to provide for the general wel- 

 fare as limited to the specific objects enumerated as 

 the powers of Congress. He contends that the only ' 

 other construction possible would be that which ! 

 should claim that anything that might tend to pro- j 

 mote the welfare of the States as a whole might be 

 done by Congress under it ; that this would render ! 

 nugatory the limitations intended to bo imposed by 

 the enumeration of specific powers. The report 

 defends the resolutions from the charge of recom- , 

 mending improper measures, contending that all 

 they intend is to bring about discussion and com- 

 parison of ideas among the States, whose action may 

 be confined to representations to Congress to induce 

 the repeal of these laws. It is claimed that the 

 States hare the right under the Constitution to con- 

 fer together and concert action proper to be taken 

 under the Constitution. The action of the legis- 

 lature upon this report did not change the position 

 of affairs assumsd by the resolutions of 1798, either j 

 as to their form or effect. 



The effect of the clause of the Constitution that 

 enables Congress to provide for the general welfare 

 has always had a conspicuous place in tho discus- 

 sions of the advocates of the different schools. This 

 discussion has a prominent place in the report of 

 Mr. Madison, as a vital feature of the controversy. 

 If that clause was to be taken in its broadest sense, 

 the power of Congress would seem to be unlimited, 

 for it would, in that case, stand as a grant of general 

 legislative power in the broadest terms. It was al- 

 ways conceited by those who put the most liberal 

 construction on the Constitution that tho powers of 

 Congress were subject to limitation, and this ex- 

 cludes the clause under consideration from receiving 

 the broadest construction of which it was capable if 

 standing alone. The narrower doctrine was that 

 Congress could only provide for the general welfare 

 where matters were involved that were of common 

 interest to the whole Union, which would place be- 

 yond the authority of Congress the attainment of 

 objects of merely local interest. This construction 

 Mr. Madison rejects and propounds the very strin- 

 gent doctrine that Congress can only consider and 

 provide for the general welfare as it regards the sub- 

 jects placed in the enumeration of its powers. Inter- 

 mediate between the larger construction, which Mr. 

 M.vdison rejects, and the narrow one propounded by 

 him is another, that does not appear to have received 

 attention in the discussions at that time. In addi- 

 tion to the powers conferred upon Congress, certain 

 other powers are inhibited to the States ; if, then, a [ 

 power thus inhibited to the States is of such a nature ! 

 that its exercise is essential to the maintenance of I 

 government, the question whether the authority to j 

 provide for the general welfare did not authorize 

 such power to be exercised by Congress, as a neces- 

 sity of government, is one that would have to be 

 considered before the rule of construction pro- 

 ]unded by Mr. Madison could be accepted as a 



The agitation excited by the Alien and Sedition 

 laws, that at one time threatened the stability of 

 the Union, passed into the arena of general politics, j 

 and was one of the causes that placed Mr. Jefferson 1 

 in the presidency, producing, through a change of j 



the persons administering the government, a change 

 in its policy rather than of its nature. The prevail- 

 ing tendency of popular excitements to find ex- 

 pression in the elective act, a striking feature and 

 safeguard of our institutions, had its first distinct de- 

 velopment in the instance of the Alien and Sedition 

 laws, and is readily accounted, for when it is observed 

 that the road to the acquisition of public authority 

 is made easy through popular ferment, and that the 

 temptations to acquire such authority are greater 

 than those that lead in the direction of dismember- 

 ing and crippling the government. 



In 1811 the question of the repeal of the charter 

 of the United States Bank was agitated in Congress, 

 and Mr. Clay opposed the power of Congress to in- 

 corporate a bank. He says: " What is the nature of 

 this government ? It is emphatically federal ; vested 

 with an aggregate of specified powers for govern- 

 mental purposes, conceded by existing sovereignties, 

 who have themselves retained what is not so con- 

 ceded. It is said that there are cases in which it must 

 act on implied powers. This is not controverted ; 

 but the implication must be necessary, and obviously 

 flow from the enumerated powers with which it is 

 allied. The power to charter companies is not speci- 

 fied in the giant, and, I contend, it is of a nature 

 not transferable by mere implication. It is one of 

 the most exalted attributes of sovereignty." 



In the foregoing statement Mr. Clay should be re- 

 garded as conceding that sovereignty resides in the 

 United States, as its powers are described as govern- 

 mental, though limited, and emanating. from a sover- 

 eign source ; as the quality of that retained by the 

 States is sovereign, that which they parted with, be- 

 ing intended for the same general iises, must have 

 the came nature. He employs the term federal in 

 the sense that has become general, as implying a 

 governmental relation between communities exer- 

 cising sovereign authority united through a common 

 law for governmental purposes. Concedingthe sover- 

 eignty of the United States, the right to judge of 

 the limits of its powers, depending on the fact that 

 such sovereignty is supreme, must be regarded os 

 conceded, and hence Mr. Clay could not but regard 

 the question of the sufficiency of the grounds of im- 

 plying powers in the government of the United States 

 as proper for decision by its judiciary. 



In 1816 the Supreme Court of the United States, 

 in the celebrated case of Martin TS. Hunter, was 

 called upon to place a construction upon the Con- 

 stitution as to the nature and limits of the powers of 

 Congress. The judiciary act had provided for ap- 

 peals from the highest courts of the States to the 

 Supreme Court of the United States where questions 

 of a federal nature were involved in their decisions. 



This feature of the law was strenuously resisted 

 as an assumption of authority not granted by the 

 Constitution. Judge Story, delivering the opinion 

 of the court, claimed that the Constitution proceeded 

 from the people of the United States, and not from 

 the States as political bodies, and that it was in- 

 tended to limit the sovereignties of the States, and 

 render the United States supreme, within its proper 

 jurisdiction, over all State authority. His conclusion 

 was, and such was the judgment of the court, that 

 the grant of jurisdiction over cases arising under the 

 Constitution, laws, and treaties of the United States 

 is absolute, and, as such, extends to an appellate 

 jtirisdiction over the judgments of the State courts 

 where questions of that nature arise. 



The Supreme Court was again, in 1819, called 

 upon to examine the fundamental nature of the 

 powers exercised by Congress. The State of Mary- 

 land had assumed to impose a tax upon the opera- 

 tions of a branch of the Bank of the United States 

 located in that State, and a controversy arose and 

 was brought into that court involving the constitu- 



