To Spencer Roane
Montpellier June 29. 1821
I have received and return my thanks for your obliging communication of the 20th. instant. The papers of “Algernoon Sydney” [sic] have given their full lustre to the arguments against the suability of States by individuals; and against the projectile capacity of the power of Congress within the “ten miles square.” The publication is well worthy of a pamphlet form, but must attract public attention in any form.
The Gordian Knot of the Constitution seems to lie in the problem of collisions between the federal & State powers, especially as eventually exercised by their respective Tribunals. If the knot cannot be untied by the text of the Constitution, it ought not certainly, to be cut by any political Alexander.
I have always thought that a construction of the Instrument ought to be favored, as far as the text would warrant which would obviate the dilemma of a Judicial rencounter, or a mutual paralysis; and that, on the abstract question whether the federal, or the State decisions ought to prevail, the sounder policy would yield to the claims of the former.
Our Governmental System is established by a compact, not between the Government of the U. States, and the State Governments; but between the States as sovereign communities, stipulating each with the others, a surrender of certain portions of their respective authorities to be exercised by a common Government, and a reservation, for their own exercize, of all their other authorities. The possibility of disagreements concerning the line of division between these portions could not escape attention, and the existence of some provision for terminating regularly & authoritatively such disagreements, but be regarded as a material desideratum.
Were this trust to be vested in the States in their individual characters, the Constitution of the U. States might become different in every State, and would be pretty sure to do so in some; the State Governments would not stand all in the same relation to the General Government, some retaining more, others less of sovereignty; and the vital principle of equality which cements their Union, might thus gradually be deprived of its virtue. Such a trust vested in the Government representing the whole and exercised by its tribunals, would not be exposed to these consequences: whilst the Trust itself would be controulable by the States who directly or indirectly appoint the Trustees; whereas in the hands of the States no federal controul direct or indirect would exist, the functionaries holding their appointments by tenures independent of the General Government.
Is it not a reasonable calculation also that the room for jarring opinions between the national & State Tribunals will be narrowed by successive decisions sanctioned by the public concurrence; and that the weight of the State Tribunals will be increased by improved organizations, by selections of abler judges; and consequently by more steady and enlightened proceedings? Much of the distrust of these Departments in the States, which prevailed when the National Constitution was formed has already been removed. Were they filled every where as they are in some of the States, one of which I need not name, their decisions, at once indicating & influencing the sense of their Constituents, and founded on united interpretations of constitutional points, could scarcely fail to frustrate an assumption of unconstitutional powers by the Federal Tribunals.
Is it too much to anticipate even that the federal & State Judges, as they become more & more of co-ordinate talents, with equal integrity, & feeling alike the impartiality enjoined by their oaths, will vary less & less also in their reasonings & opinions on all Judicial subjects; and thereby mutually contribute to the clearer and firmer establishment of the true boundaries of power, on which must depend the success and permanency of a Federal Republic, the best guardian ⟨as⟩ we believe, of the liberty safety & happiness of men.
In these hypothetical views I may permit my wishes to sway too much my hopes. I submit the whole nevertheless to your perusal, well assured that you will approve the former, if you can not join fully in the latter. Under all circumstances I beg you to be assured of my distinguished esteem & sincere regard.
RC (Forbes Magazine Collection, New York, N.Y.); FC (DLC). Minor differences between the copies have not been noted.