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by the legislature, which was that of inviting the other states “to concur in declaring the acts to be unconstitutional, and to co-operate by the necessary and proper measures in maintaining unimpaired the authorities, rights, and liberties reserved to the states respectively and to the people.” That by the necessary and proper measures to be concurrently and cooperatively taken, were meant measures known to the Constitution, particularly the ordinary control of the people and legislatures of the states, over the government of the United States, cannot be doubted; and the interposition of this control, as the event showed, was equal to the occasion.
It is worthy of remark, and explanatory of the intentions of the legislature, that the words “not law, but utterly null, void, and of no force or effect,” which had followed, in one of the resolutions, the word “unconstitutional,” were struck out by common consent. Though the words were in fact but synonymous with “unconstitutional;” yet to guard against a misunderstanding of this phrase as more than declaratory of opinion, the word “unconstitutional” alone was retained, as not liable to that danger.
The published address of the legislature to the people, their constituents, affords another conclusive evidence of its views. The address warns them against the encroaching spirit of the general government, argues the unconstitutionality of the alien and sedition-acts, points to other instances in which the constitutional limits had been overleaped; dwells upon the dangerous mode of deriving power by implication; and in general presses the necessity of watching over the consolidating tendency of the federal policy. But nothing is said that can be understood to look to means of maintaining the rights of the states, beyond the regular ones, within the forms of the Constitution.
If any further lights on the subject could be needed, a very strong one is reflected in the answers to the resolutions, by the states which protested against them. The main objection of these, beyond a few general complaints of the inflammatory tendency of the resolutions, was directed against the assumed authority of a state legislature to declare a law of the United States unconstitutional, which they pronounced an unwarrantable interference with the exclusive jurisdiction of the Supreme Court of the United States. Had the resolutions been regarded as avowing and maintaining a right, in an individual state, to arrest, by force, the execution of a law of the United States, it must be presumed that it would have been a conspicuous object of their denunciation.
With cordial salutations,
* See the concluding resolution of 1798.
MR. MADISON TO MR. INGERsoLL.
Montpelier, Feb. 2, 1831. DEAR SIR,— I have received your letter of January 21, asking1.*Is there any state power to make banks? 2. Is the federal power, as it has been exercised, or as proposed to be exercised by President Jackson, preferable? The evil which produced the prohibitory clause in the Constitution of the United States, was the practice of the states in faking bills of credit, and in some instances £ “a legal tender.” If the notes of state banks, therefore, whether chartered or unchartered, be made a legal tender, they are prohibited; if not made a legal tender, they do not fall within the prohibitory clause. The number of the “Federalist” referred to, was written with that view of the subject; and this, with probably other cotemporary expositions, and the uninterrupted practice of the states in creating and permitting banks without making their notes a legal tender, would seem to be a bar to the question, if it were not inexpedient now to agitate it. A virtual and incidental enforcement of the depreciated notes of state banks, by their crowding out a sound medium, though a great evil, was not foreseen; and if it had been apprehended, it is questionable whether the Constitution of the United States, which had so many obstacles to encounter, would have ventured to guard against it by an additional provision. A virtual, and it is hoped, an adequate remedy, may hereafter be found in the refusal of state paper when debased, in any of the federal transactions, and in the control of the federal bank, this being itself controlled from suspending its specie payments by the public authority. On the other question, I readily decide against the project recommended by the President. Reasons more than sufficient appear to have been presented to the public, in the reviews and other comments which it has called forth. How far a hint for it may have been taken taken from Mr. Jefferson, I know not. The kindred ideas of the latter may be seen in his Memoirs, &c., vol. iv., pages 196, 207,526, and his view of the state banks, vol. iv., pages 199, 220. There are sundry statutes of Virginia prohibiting the circulation of notes payable to bearer, whether issued by individuals or unchartered banks. These observations, little new or important as they may be, would have been promptly furnished, but for an indisposition in which your letter found me, and which has not yet entirely left me. I hope this will find you in good health, and you have my best wishes for its continuance, and the addition of every other blessing. - JAMES MADIsoN. Charles J. Ingersoll, Esq., Harrisburg, #
MR. MADISON TO MR. INGERSOLL.
Montpelier, June 25, 1831. DEAR SIR,, I have received your friendly letter of the 18th inst. The few, lines which answered your former one of the 21st of January last, were written in haste and in bad health; but they expressed, though without the attention in some respects due to the occasion, a dissent from the views of the President, as to a bank of the United States and a substitute for it; to which I cannot but adhere. The objections to the latter have appeared to me to preponderate greatly over the advantages expected from it, and the constitutionality of the former I still regard as sustained by the considerations to which I yielded in giving my assent to the existing bank. The charge of inconsistency between my objection to the constitutionality of such a bank in 1791, and my assent in 1817, turns on the question, how far legislative precedents, expounding the Constitution, ought to guide succeeding legislatures, and to overrule individual opinions. Some obscurity has been thrown over the question, by confounding it with the respect due from one legislature to laws passed by preceding legislatures. But the two cases are essentially different. A constitution being derived from a superior authority, is to be expounded and obeyed, not controlled or varied by the subordinate authority of the legislature, A law, on the other hand, resting on no Higher authority than that possessed by every successive legislature, its expediency as well as its meaning, is within the scope of the latter. - The case in question has its true analogy in the obligation arising from judicial expositions of the law on succeeding judges; the constitution being a law to the legislator, as the law is a rule of decision to the judge. And why are judicial precedents, when formed on due discussion and consideration, and deliberately sanctioned by reviews and repetitions, regarded as of binding influence, or rather of authoritative force, in settling the meaning of a law? It must be answered: 1st. Because it is a reasonable and established axiom, that the good of society requires that the rules of conduct of its members should be certain and known, which would not be the case, if any judge, disregarding the decisions of his predecessors, should vary the rule of law according to his individual interpretation of it. Misera est servitus ubi jus estaut vagum, aut incognitum. 2d. Because an exposition of the law publicly made, and repeatedly confirmed by the constituted authority, carries with it, by fair inference, the sanction of those who, having made the law through their legislative organ, appear under such circumstances to have determined its meaning through their judiciary organ. s | Can it be of less consequence that the meaning of a constitution should be fixed and known, than that the meaning of a law should be so? Can indeed a law be fixed in its meaning and operation, unless the constitution be so? On the contrary, if a particular legislature, differing in the construction of the constitution, from a series of preceding constructions, proceed to act on that difference, they not only introduce uncertainty and in- . stability in the constitution, but in the laws themselves; inasmuch as all laws preceding the new construction and inconsistent with it, are not only annulled for the future, but virtually pronounced nullities from the beginning. But it is said that the legislator, having sworn to support the constitution, must support it in his own construction of it, however different from that put on it by his predecessors, or whatever be the consequences of the construction. And is not the judge under the same oath to support the law? yet has it ever been supposed that he was required, or at liberty to disregard all precedents, however solemnly repeated and regularly ob. served; and, by giving effect to his own abstract and individual opinions, to disturb the established course of practice in the business of the community? Has the wisest and most conscientious judge ever scrupled to acquiesce in decisions in which he has been overruled by the mature opinions of the majority of his colleagues, and subsequently to conform himself thereto, as to authoritative expositions of the law? And is it not reasonable that the same view of the official oath should be taken by a legislator, acting under the constitution, which is his guide, as is taken by a judge, acting under the law, which is his? There is in fact and in common understanding, a necessity of regarding a course of practice, as above characterized, in the light of a legal rule of interpreting a law; and there is a like necessity of considering it a constitutional rule of interpreting a constitution. That there may be extraordinary and peculiar circumstances controlling the rule in both cases, may be admitted: but with such exceptions, the rule will force itself on the practical judgment of the most ardent theorist. He will find it impossible to adhere to, and act officially upon, his solitary opinions as to the meaning of the law or constitution, in opposition to a construction reduced to practice, during a reasonable period of time; more especially where no prospect existed of a change of construction by the public or its agents. And if a reasonable period of time, marked with the usual sanctions, would not bar the individual prerogative, there could be no limitation to its exercise, although the danger of error must increase with the increasing oblivion of explanatory circumstances, and with the continual changes in the import of words and phrases. Let it then be left to the decision of every intelligent and candid judge, which, on the whole, is most to be relied on for the true and safe construction of a constitution, that which has the uniform sanction of successive legislative bodies through a period of years, and under the varied ascendency of parties; or that which depends upon the opinions of every new legislature, heated as it may be by the spirit of party, eager in the pursuit of some favourite object, or led astray by the eloquence and address of popular statesmen, themselves, perhaps, under the influence of the same misleading causes. It was in conformity with the view here taken of the respect due to deliberate and reiterated precedents, that the Bank of the United States,
though on the original question held to be unconstitutional, received the executive signature in the year 1817. The act originally establishing a bank had undergone ample discussions in its passage through the several branches of the government. It had been carried into execution throughout a period of twenty years with annual legislative recognitions; in one instance indeed, with a positive ramification of it into a new state; and with the entire acquiescence of all the local authorities, as well as of the nation at large, to all of which may be added, a decreasing prospect of any change in the public opinion adverse to the constitutionality of such an institution. A veto from the executive under these circumstances, with an admission of the expediency, and almost necessity of the measure, would have been a defiance of all the obligations derived from a course of precedents amounting to the requisite evidence of the national judgment and intention. .
It has been contended that the authority of precedents was in that case invalidated by the consideration, that they proved only a respect for the stipulated duration of the bank, with a toleration of it until the law should expire, and by the casting vote given in the Senate by the Vice-President in the year 1811, against a bill for establishing a national bank, the vote being expressly given on the ground of unconstitutionality. But if the law itself was unconstitutional, the stipulation was void, and could not be constitutionally fulfilled or tolerated. And as to the negative of the Senate by the casting vote of the presiding officer, it is a fact well understood at the time, that it resulted not from an equality of opinions in that assembly on the power of Congress to establish a bank, but from a junction of those who admitted the power, but disapproved the plan, with those who denied the power. On a simple question of constitutionality, there was a decided majority in favour of it.
Mrs. Madison joins me in hoping that you will not fail to make the intended visit to Virginia, which promises us the pleasure of welcoming you to our domicile, and in a sincere return of all the good wishes you kindly express for us.
JAMES MADIsoN. Mr. Ingersoll.