To Spencer Roane
Montpellr. May 6. 1821.
I recd. more than two weeks ago your letter of April 17th. A visit to a sick friend at some distance, with a series of unavoidable attentions, have prevented an earlier acknowlegement of it.
Under any circumstances I should be disposed rather to put such a subject as that to which it relates, into your hands, than to take it out of them. Apart from this consideration, a variety of demands on my time would restrain me from the task of unravelling fully the arguments applied by the Supreme Court of the U.S. to their late decision. I am particularly aware moreover that they are made to rest not a little on technical points of law which are as foreign to my studies, as they are familiar to yours.
It is to be regretted that the Court is so much in the practice of mingling with the Judgments pronounced, comments & reasonings of a scope beyond them; and that in these there is often an apparent disposition to amplify the authorities of the Union, at the expence of those of the States. It is of great importance, as well as of indispensable obligation, that the constitutional boundary between them should be impartially maintained. Every deviation in practice detracts from the superiority of a chartered over a traditional Government, and marrs the experiment which is to determine the interesting problem, whether the organization of the political System of the U.S. establishes a just equilibrium, or tends to a preponderance of the national or of the local powers; and in the latter case, whether of the National or of the local.
A candid review of the vicissitudes which have marked the progress of the General Government, does not preclude doubts as to the ultimate and fixed character of a political Establishment distinguished by so novel & complex a mechanism. On some occasions, the advantage taken of favorable circumstances, gave an impetus & direction to it which seemed to threaten subversive encroachments on the rights & authorities of the States. At a certain period we witnessed a spirit of usurpation by some of these, on the necessary & legitimate functions of the former. At the present date, theoretic innovations at least, are putting new weights into the scale of federal authority1 and make it highly proper to bring them to the bar of the Constitution.
In looking to the probable course and eventual bearing of the compound Government of our Country, I can not but think that much will depend not only on the moral changes incident to the progress of society, but on the increasing number of the members of the Union. Were the members very few, and each very powerful, a feeling of self-sufficiency would have a relaxing effect on the bands holding them together. Were they numerous & weak, the Govt. over the whole would find less difficulty in maintaining and increasing subordination. It happens that whilst the power of some is swelling to so great a size, the entire number is swelling also. In this respect, a corresponding increase of centripetal and centrifugal forces, may be equivalent to no increase of either.
In the existing posture of things my reflections lead me to infer that whatever may be the latitude of jurisdiction assumed by the Judicial power of the U.S. it is less formidable to the reserved sovereignty of the States, than the latitude of power which it has assigned to the Legislature; and that encroachments of the latter are more to be apprehended from impulses given to it by a majority of the States seduced by expected advantages, than from a love of power in the Body itself controuled as it now is by its responsibility to the Constituent Body.
Such is the plastic faculty of Legislation, that notwithstanding the firm tenure which the Judges have on their offices, they can by various regulations, be kept or reduced within the paths of duty; more especially with the aid of their amenability to the Legislative Tribunal in the form of impeachment. It is not probable that the Supreme Court would be long indulged in a career of usurpation opposed to the decided opinions & policy of the Legislature.
Nor do I think that Congress, even seconded by the Judicial power, can without some great change in the character of the nation, succeed in durable violations of the rights & authorities of the States. The responsibility of one branch to the people, and of the other to the Legislatures of the States, seem to be, in the present stage at least of our political history, an adequate barrier. In the case of the Alien & Sedition laws, which violated the sense as well as the rights of the States, the usurping experiment was crushed at once, notwithstanding the co-operation of the federal Judges with the federal laws.
But what is to controul Congress when backed and even pushed on by a majority of their Constituents; as was the case in the late contest relating to Missouri; and as may again happen, on the constructive power relating to Roads & Canals? Nothing, within the pale of the Constitution, but sound arguments, & conciliatory expostulations, addressed both to Congress & their Constituents.
On the questions brought before the public by the late doctrines of the Supreme Court of the U.S. concerning the extent of their own powers & that of the exclusive jurisdiction of Congress over the ten miles square & other specified places, there is as yet no evidence that they express either the opinions of Congress, or those of their Constituents. There is nothing therefore to discourage a development of the flaws the doctrines may contain, or tendencies they may threaten. Congress if convinced of these, may not only abstain from the exercise of powers claimed for them by the Court; but may find the means of controuling those claimed by the Court for itself. And should Congress not be convinced, their Constituents, if so, can certainly under the forms of the Constitution, effectuate a compliance with their deliberate judgment & settled determination.
In expounding the Constitution, the Court seems not insensible that the intention of the parties to it ought to be kept in view; and that as far as the language of the Instrument will permit, this intention ought to be traced in the contemporaneous expositions. But is the Court as prompt and as careful in citing & following this evidence when against the federal authority, as when agst. that of the States?2
The exclusive jurisdiction over the ten miles square is, itself an anomaly in our representative System. And its object being manifest and attested by the views taken of it, at its date, there seems a peculiar impropriety in making it the fulcrum for a Lever stretching into the most distant parts of the Union, and overruling the municipal policy of the States. The remark is still more striking when applied to the smaller places over which an exclusive jurisdiction was suggested by a regard to the defence & property of the nation.
Some difficulty, it must be admitted, may result in particular cases, from the impossibility of executing some of these powers within the defined spaces, according to the principles & rules enjoined by the Constitution, and from the want of a Constitutional provision for the surrender of malefactors, whose escape must be so easy, on the demand of the U.S. as well as of the individual States. It is true also that these exclusive jurisdictions, are in the class of enumerated powers, to which is subjoined a power in Congress to pass all laws necessary & proper for their execution. All that could be exacted however by these considerations would be, that the means of execution should be of the most obvious & essential kind, and exerted in the ways as little intrusive as possible on the powers & police of the States. And after all the question would remain whether, the better course would not be to regard the case as an omitted one, to be provided for by an amendment of the Constitution. In resorting to legal precedents, as sanctions to power, the distinction should ever be strictly attended to, between such as take place under transitory impressions, or without full examination & deliberation, and such as pass with solemnities & repetitions, sufficient to imply a concurrence of the judgment & the will of those who having granted the power have the ultimate right to explain the grant. Altho’ I can not join in the protest of some agst. the validity of all precedents, however uniform & multiplied, in expounding a Constitution, yet I am persuaded that Legislative precedents are frequently of a character entitled to little respect; and that those of Congress, are sometimes liable to peculiar distrust. They not only follow the example of other Legislative Assemblies in first procrastinating, and then precipitating their acts; but owing to the termination of their session every other year at a fixed day & hour, a mass of business is struck off as it were at short hand & in a moment. Those midnight precedents of every sort ought to have little weight in any case.
On the question relating to involuntary submissions of the States to the Tribunal of the supreme Court, the Court seems not to have adverted at all to the expository language held when the Constitution was adopted; nor to that of the 11th. amendment which may as well import that it was declaratory, as that it was restrictive of the meaning of the original text. It seems to be a strange reasoning also which would imply that a State in controversies with its own Citizens, might have3 less of sovereignty, than in controversies with foreign individuals, by which the national relations might be affected. Nor is it less to be wondered that it should have appeared to the Court that the dignity of a State was not more compromitted, by its being made a party against a private person, than against a co-ordinate party.
The Judicial power of the U.S. over cases arising under the Constitution, must be admitted to be a vital part of the System. But that there are limitations and exceptions4 to its efficient character is among the admissions of the Court itself. The Eleventh amendment introduces exceptions if there were none before. A liberal and steady course of practice can alone reconcile the several provisions of the Constitution literally at variance with each other; of which there is an example in the Treaty power, and the Legislative power, on subjects to which both are extended by the words of the Constitution. It is particularly incumbent, in taking cognizance of cases arising under the Constitution, and in which the laws or rights of the States may be involved, to let the proceedings touch individuals only. Prudence enjoins this, if there were no other motive, in consideration of the impracticability of applying coercion to States.
I am sensible Sir that these ideas are too vague to be of value, and that they may not even hint for consideration any thing not occurring to yourself. Be so good as to see in them at least an unwillingness to disregard altogether your request. Should any of the ideas be erroneous as well as vague, I have the satisfaction to know that they will be viewed by a friendly as well as candid eye. With very great esteem & cordial respects Yours
RC (ViU: Madison Papers, Special Collections); FC (DLC). Cover addressed by JM to Roane at Richmond “via Frederi⟨c⟩k⟨s⟩b⟨ur⟩g,” and franked. Redirected in an unidentified hand: “Forwarded Hanover Town.” Marked “Orange CH may 12.” Docketed by Roane. Minor differences between the copies have not been noted, nor have the numerous pencil underlinings of words and phrases in the RC, probably made by Roane.
1. “Sovereignty” in the FC.
2. In the FC, JM wrote after this sentence: “(see the partial reference of the Court to ‘The Federalist’).” In his opinion in the case of Cohens v. Virginia, Chief Justice John Marshall quoted from Federalist No. 82, in which Alexander Hamilton had discussed the extent of federal judicial power. In “instances of concurrent jurisdiction” between federal and state courts, Hamilton wrote and Marshall quoted approvingly, “an appeal would certainly lie from the latter, to the supreme court of the United States” (Johnson et al., Papers of John Marshall, 9:135, 142 n. 17).
3. In the RC, JM interlined “exempt from national” above a number of crossouts here; the phrase is not in the FC.
4. Someone, probably Roane, inserted in pencil an “(a)” here in the RC and in the left margin of the page wrote: “(a) In Mad’s report, an exception is, where the Controvy. is (as here) between the parties to the Compact.” Roane referred to JM’s assertion in his Report of 1800 that “the federal powers are derived from the Constitution, and that the Constitution is a compact to which the states are parties,” and his explanation of the latter clause (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser., vols. 1–10, Chicago, 1962–77, vols. 11–17, Charlottesville, Va., 1977–91). description ends 17:308–9).