CONGKESS, UNITED STATES. 



153 



Mr. Buckalew : " May I ask the Senator 

 whether by an amendment submitted by Con- 

 gress you could take away the senatorial rep- 

 resentation of any State ? " 



Mr. Drake : " Not without its consent. The 

 Constitution expressly forbids it. It does not 

 say that you shall not take it away by an 

 amendment, but simply sets out the broad, 

 distinct proposition that ' no State shall with- 

 out its consent be deprived of its equal suffrage 

 in the Senate.' Now, sir, the only shackle 

 that the people of the United States put upon 

 the power of amendment was that which was 

 to go to perpetuate slavery in this country and 

 to keep up the African slave-trade; and so 

 now, after the lapse of eighty years, comes up 

 the response from the same spirit, that there 

 is no power in the Constitution to make an 

 amendment which shall give the right of suf- 

 frage to that long-enslaved race. The spirit 

 in the two cases is the same, that which would 

 have consigned them to eternal slavery and that 

 which would now prevent their being lifted 

 into the condition of enfranchised citizens. 



" Mr. President, gentlemen here talk about 

 the rights of the States. What right has any 

 State in this Union but that which it gets from 

 the Constitution ? Go over it, examine it from 

 the beginning to the end, examine it in the 

 light of history, examine it with the severest 

 logic. I say to these gentlemen who talk so 

 about the rights of States, that there is not a 

 State in this Union that has one single right 

 but that which it derives from the Constitu- 

 tion. Every single right that the States may 

 have had before, they threw into the great 

 mass which went to make up the powers of 

 this Union, and just so much as the nation 

 saw fit to give them they have, and not an 

 atom more. And when you talk about the 

 rights of States, it matters not what the extent 

 of them is, how great or how little, certain it 

 is that in that instrument they all lie and are 

 all there granted or conceded; and there is 

 not one right, except that of equal senatorial 

 representation, which cannot be taken away 

 from any State by a constitutional amendment 

 passed by two-thirds of Congress and ratified 

 by three-fourths of the States. 



"But, Mr. President, I do not propose to 

 continue this discussion. The few minutes 

 that I have now occupied are sufficient to ex- 

 press what I desired to express, except one 

 other thing drawn out by the remarks of the 

 honorable Senator from Wisconsin ; and that 

 is upon the assumed right of the Supreme 

 Court of the United States to declare an act 

 of Congress unconstitutional and void. I take 

 leave to say to that gentleman that whenever 

 the proper time comes I shall take the position 

 here, and maintain it, too, that there does not 

 abide in that court one particle of right to 

 make any such declaration with regard to any 

 act of Congress." 



Mr. Edmunds: "Not even involving civil 

 rights?" 



Mr. Drake : " Not involving any right. The 

 people of the United States did not establish a 

 Government of three departments which were 

 to cross each other's track in that way and 

 destroy each other. The law of parallelism 

 was laid down to all three, of them. They 

 were to run in parallel lines, never to cross 

 each other ; but I am not going into that dis- 

 cussion now. I wish to meet right here at 

 the threshold the first declaration that I have 

 heard yet made by a Senator on this floor rec- 

 ognizing the right of the Supreme Court to 

 declare any act of Congress unconstitutional, 

 with a complete denial of that right, and with 

 a challenge to any man to find that right 

 granted in the Constitution to that tribunal." 



Mr. Hendricks : " Suppose that between two 

 citizens there is a controversy in regard to 

 property ; the claim of the one citizen is based 

 upon a provision of the Constitution of the 

 United States, and the claim of another citizen 

 is based upon a law of Congress. The two are 

 inconsistent. If the law be sustained, the one 

 man gains his case ; if the Constitution, on the 

 other hand, be sustained, the other man carries 

 the case, and that cause comes to the Supreme 

 Court of the United States. Which shall gov- 

 ern, the provision of the Constitution or the 

 law ? Which party ought to gain the case? " 



Mr. Drake : "In the first place, in answer 

 to the honorable Senator, I will say that he 

 supposes an impossible case. The honorable 

 Senator cannot find in the Statutes-at-Large of 

 the United States one single act of this Con- 

 gress which in its plain and palpable terms 

 enacted a thing which was in violation of the 

 Constitution." 



Mr. Hendricks : " That is not the question." 



Mr. Drake : " Yes, it is, sir ; because, unless 

 you do find that in a law which is in plain and 

 palpable violation of the Constitution, the matter 

 of whether it is a violation of the Constitution 

 is a matter of construction and deduction, and 

 the moment you come to the question of con- 

 struction and deduction, then I say that a judg- 

 ment has been entered in the Halls of the Con- 

 gress of the nation higher than any judgment 

 which -any court of the United States or of any 

 State can render." 



Mr. Doolittle : " Do I understand the honor- 

 able Senator to say that the opinion of Con- 

 gress is supreme on all these constitutional 

 questions ? " 



Mr. Drake : " I mean to say, and in due time 

 whenever the opportunity offers I will say it 

 at length and make it good, that there never 

 is passed an act by the two Houses of the Con- 

 gress of the United States and it is a position 

 I took here in the first prepared speech I de- 

 livered in this Chamber, in December, 1867 

 that there never is an act passed by the two 

 Houses of Congress that they do not by the act 

 of passing it enter in the records and archives 

 of the nation a solemn judgment that that act 

 is in accordance with the' Constitution of the 

 United States." 



