25.This want of uniformity and fixedness,In the decisions of courts,renders the Supreme Court the most unfit umpire that could be selected between the Federal Government and the States,on questions involving their respective rights and powers.Suppose that the United States should resolve to cut a canal through the territory of Virginia,and being resisted,the Supreme Court should decide that they had a right to do so.Suppose that,when the work was completed,a similar attempt should be made In Massachusetts,and being resisted,the same court should decide that they had no right to do so.The effect would be that the United States would possess a right in one State which they did not posses in another.Suppose that Virginia should impose a tax on the arsenals,dock-yards,&c.,of the united States within her territory,and that,In a suit to determine the right,the Supreme Court should decide in favor of It.
Suppose that a like attempt should be made by Massachusetts,and,upon a similar appeal to that court,it should decide against it;Virginia would enjoy a right In reference to the United States,which would be denied to Massachusetts.Other cases may be supposed,involving like consequences,and showing the absurdity of submitting to courts of justice the decision of controversies between governments,involving the extent and nature of their powers.I know that the decisions of the Supreme Court on constitutional questions,have been very consistent and uniform;but that affords no proof that they will be so through all time to come.It is enough for the purposes of the present argument,that they MAY be otherwise.
26.In this extended examination of the rates by which the Constitution of the United States is to be interpreted,Judge Upshur has,we think,completely demolished the doctrines of Judge Story on that subject;but there is an important principle to be applied in the interpretation of all compacts and legal instruments which has not been made sufficiently plain.It is the rule laid down by Blackstone,that the intention of the parties to a compact to the key to its meaning.The terms and language must be referred to the time of its enactment,and must be taken as understood by those who so employed them,and not according to any subsequent definition.(1Blackstone,69,60.)Thus the Constitution of the United States must be explained as those who made and framed it intended.Their INTENTION is the LAW.We sometimes hear such phrases as "New views of the Constitution,"and "Progressive ideas of the Constitution."
But we are to seek for the meaning of that instrument;not in "new views," or in "progressive ideas"of its import,but in the old views of those who made it.We are to take into consideration the condition of the country at the time the Constitution was framed and adopted,and the settled judicial and professional opinion immediately following its adoption.This rule has been often affirmed by the Supreme Court.(6Wheaton,410;2Peters,714;5Cranch.83;8Dallas.898.)
Any subsequent construction of a law or instrument not in agreement with the settled intent of those who framed 14is to be disregarded.(1Peters,281,1.)
The intention of the framers of the Constitution was that it should continue as they framed it;it was not designed as a temporary agreement,but as an everlasting law.(1Wheaton,326.)Its language is to be taken in its natural and obvious sense,and not in any novel and new construction.(4Wheaton,415.)"Its spirit is to be respected not less than its letter,yet the spirit is to be collected chiefly by the words."(a Wheaton,262."it was not intended to use language which would convey to the eye one idea,and after deep reflection impress on the mind another."(4Wheaton,418.)Such were the rules by which the Constitution was interpreted by the Supreme Court undeviatingly from the foundation of the government to 1863.Since this last date a change has come over the spirit of the judiciary which is in violation of all the past rules of interpretation,and indeed of judicial proceedings among all enlightened nations.The doctrine has been boldly proclaimed,by leading journals,that laws and compacts are to be construed so as to be in harmony with the "will of the people,"and judges have,in too many instances,succumbed to this monstrous delusion.It amounts to the abrogation of all organic law,by substituting the passions and fancies of the people to its place.
It has made the whims and the passions of a political party superior to the Constitution of our country.It,indeed,amounts to the overthrow of all fixed and regular governments,and leaves the passions and fancies of an hour the only guarantees of liberty.?[C.C.B.]
27.Mr.Adams was not a member of the convention.This speech was made in Congress in deliberating on the Articles of Confederation.?[Ed.]
28.Elsewhere we have shown that such was the understanding of those who framed the Constitution of the Imitates when they adopted it.?[C.C.B]
