Montpellier May 1830.
I received Sir, tho’ not exactly in the due time, your letter of April 25th. with a copy of your pamphlet, on the subject of which you request my opinions
With a request opening so wide a field, I could not undertake a full compliance, without forgetting the age at which it finds me, and that I have other engagements precluding such a task. I must hope therefore, you will accept in place of it, a few remarks which, tho’ not adapted to the use you had contemplated, may manifest my respect for your wishes, and for the subject which prompted them.
The pamphlet certainly evinces a very strong pen, and talents adequate to the discussion of Constitutional topics, of the most interesting class. But in doing it this justice, and adding with pleasure, that it contains much matter, with which my views of the Constitution accord; I must add also that it contains views of the Constitution from which mine widely differ.
I refer particularly to the construction you seem to put on the introductory clause "We the people of the United States, in order to form a more perfect union", &c. and on the phrases "Common defence and general welfare". Either of these, if taken as a measure of the powers of the General Government, would supersede the elaborated specifications which compose the body of the Instrument in contravention to the fairest rules of interpretation, and if I am to answer your appeal to me as a witness, I must say that the real measure of the powers meant to be granted to Congress by the Convention, as I understood and believe, is to be sought in the specifications; to be expounded, indeed, not with the strictness applied to an ordinary statute by a Court of law; nor on the other hand, with a latitude, that under the name of means for carrying into execution a limited Government, would transform it into a Government without limits.
But whatever respect may be thought due to the intention of the Convention, which prepared and proposed the Constitution, as a presumptive evidence of the general understanding at the time of the language used, it must be kept in mind that the only authoritative intentions were those of the people of the States, as expressed through the Conventions which ratified the Constitution.
That in a Constitution, so new, and so complicated, there should be occasional difficulties and differences in the practical expositions of it, can surprize no one; and this must continue to be the case, as happens to new laws on complex subjects, until a course of practice of sufficient uniformity and duration to carry with it the public sanction, shall settle doubtful or contested meanings.
As there are legal rules of interpreting laws, there must be analogous rules for interpreting Constitutions; and among the obvious and just guides applicable to the Constitution of the United States, may be mentioned,
1. the evils and defects for curing which the Constitution was called for and introduced.
2. the comments prevailing at the time it was adopted.
3. the early, deliberate and continued practice under the Constitution, as preferable to constructions adopted on the spur of occasions, and subject to the vicissitudes of party or as personal ascendencies.
On recurring to the origin of the Constitution, and examining the structure of the Government, we perceive that it is neither a Federal Government created by the State Governments like the Revolutionary Congress; nor a consolidated Government (as that term is now applied) created by the people of the United States as one community, and as such acting by a numerical majority of the whole.
The facts of the case, which must decide its true character, a character without a prototype, are, that the Constitution was created by the people, but by the people as composing distinct States, and acting by a majority in each: that being derived from the same source as the Constitutions of the States, it has within each State, the same authority as the Constitution of the State, and is as much a Constitution in the strict sense of the term, as the Constitution of the State: that being a Compact among the States in their highest sovereign capacity, and constituting the people thereof one people for certain purposes, it is not revocable or alterable at the will of the States individually, as the Constitution of a State is revocable and alterable at its individual will: that the sovereign or supreme powers of the Government are divided into the separate depositories of the Government of the United States, and the Governments of the Individual States: that the Government of the United States is a Government in as strict a sense of the term, as the Governments of the States; being like them, organized into a Legislative, Executive and Judiciary Department, operating like them, directly on persons and things, and having like them, the command of a physical force for executing the powers committed to it: that the Supreme powers of Government being divided between different Governments, and controversies as to the landmarks of jurisdiction, being unavoidable; provision for a peaceable and authoritative decision of them was obviously essential: that to leave this decision to the States, numerous as they are in with a prospective increase, would evidently result in conflicting decisions, subversive of the Common Government and of the Union itself: that according to the actual provision against such calamities, the Constitution & laws of the United States are declared to be paramount to those of the Individual States, and an appellate supremacy is vested in the Judicial power of the United States: that as safeguards against usurpations and abuses of power by the Government of the United States, the members of its Legislative and the head of its Executive Department, are eligible by and responsible to the people of the States, or the Legislatures of the States; and as well the Judicial, as the Executive functionaries including the Head, are impeachable by the Representatives of the people in one branch of the Legislature of the United States, and triable by the Representatives of the States in the other branch: that in case of an experienced inadequacy of these provisions, an ulterior resort is provided in amendments attainable by an intervention of the States, which may better adapt the Constitution for the purposes of its creation:
Should all these provisions fail, and a degree of oppression ensue, rendering resistance and revolution a lesser evil than a longer passive obedience, there can remain but the ultima ratio, applicable to extreme cases, whether between nations, or the component parts of them.
Such, Sir, I take to be an outline view, tho’ an imperfect one, of the political system presented in the Constitution of the United States. Whether it be the best system that might have been devised, or what the improvements that might be made in it, are questions equally beyond the scope of your letter, and that of the answer, with which, I pray you to accept my respects and good wishes.
J M. having experienced a miscarriage of his letters on several late instances will thank Mr H for a line [in reply] noting that this got safe to hand