(Richmond Enquirer, June 5, 1821.) ON THE LOTTERY DECISION.
No. 4.
To the People of the United States:
The supreme court seems to perceive great evils, fellow citizens, from suing in the state tribunals those who act under the authority of the laws of the United States. If those mischiefs do exist, yet the power to correct the decisions is not thereby carried to the federal courts. No power, whatever the mischief may be, is possessed by them, unless it has been fairly conferred The constitution is not whatever that court thinks it ought to be. On that point, the people of the United states have also their opinion. They may have thought, differing in opinion from the supreme court, that the general government might, also, be induced to do wrong and violate the rights of the states and the people, and on this ground have left the constitution as it is. They have left a check in the hands of the states against the effect of such abuses. They may have foreseen the actual occurrence of the sedition law, for example, and have left power with the states or the people, to put down the abuse whenever it should happen. They may have had a better opinion of the state tribunals than their rivals for power are pleased to have on this occasion. They had neither been encouraged to take sides with the government which employs and pays them, nor been excited to consider those as groundless jealousies of the states, which are, in truth only rightful claims of their constitutional and indubitable rights. The American people, in forming their constitution, took sides with neither of the parties to this contest for power, but regarded as well the just rights of the several states, as the granted powers of the general government. Although, they no doubt foresaw some clashing between the two governments, and their respective departments, it was submitted to, as the lesser of evils, and as the price paid by the people for their liberties. They were to choose between a pure model of a federal republic and a confederation of the states, on the one hand and an absolute consolidated government on the other. They did not hesitate in their choice between the two; but they differed in opinion from the supreme court.
The supreme court is pleased to say, that a constitution “which was designed to approach immortality,” ought not to be so defective as not to have power to secure the execution of its own laws against all dangers. If that constitution was designed for immortality, it was certainly not so intended in its original form. It is admitted to have been eminently defective by the very provision contained in it for its amendment; and it has been accordingly, actually and greatly amended. Possibly, the point in question may be one of the very cases in which this amending power would be properly applied. What the constitution “ought to be,” is one thing and what it actually is, is another. The last is the only question with which the supreme court has any legitimate concern.
The supreme court has referred to the history of the times, in which the constitution was established in support of the construction they have adopted. In joining issue with them as to that history, I shall often have occasion in the sequel to differ from them respecting the facts thereof. I must also say, that if in this case, history is to be relied on, all the history which relates to the case ought to be taken into consideration. This is an universal rule in expounding all contracts and documents whatsoever You are to go by the whole, and not by a part, of the sense of him who speaks. If the petty state of Rhode Island had in these times rebelled against the federal authority; if, in some instances, other states had also refused obedience to the federal requisitions, that is only part of the history of those times It is also a part of that history that all the states, in entering into the present government, wished to preserve their state institutions. They wished only to enter into a federal government. The idea of one great national consolidated government was abhorrent to their minds Their preference of a general government, for general porposes, and of special governments for the preservation of their internal rights and liberties, had been perpetual, uniform and unbated.